Citation Nr: 1511103 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 10-00 997 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to June 1987 and served an additional three months and twenty-three days prior to September 1977. He died in June 2007. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Atlanta, Georgia RO. In January 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. The Board notes that, in October 2014, the appellant released the attorney who had been acting on her behalf from further action. She is now pro se, representing herself. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the time of his death, the Veteran was service-connected for mechanical low back pain status post removal of ruptured disc, rated 60 percent; neurogenic bladder, rated 40 percent; postoperative status neuroma, second and third left web spaces, rated 10 percent; epicondylitis of the right elbow, rated 0 percent; stress fracture of the right tibia, rated 0 percent; stress fracture of the left tibia, rated 0 percent; postoperative status left inguinal hernia, rated 0 percent; postoperative right inguinal hernia, rated 0 percent; plantar fasciitis of the right foot, rated 0 percent; and chronic prostatitis, rated 0 percent. His combined disability rating was 80 percent, and he was in receipt of total disability benefits (100 percent) based on individual unemployability. A forensic autopsy report concluded the Veteran's cause of death to be central nervous system depression, due to polypharmacy toxicity (drugs, alcohol). Urine toxicology results detected cannabinoids, oxycodone, hydrocodone, dichydrocodeine, diazepam, nordiazepam, chlorpheniramine, diphenhydramine, ranitidine, acetaminophen, caffeine, and nicotine. Blood toxicology was positive for ethanol. Contributory conditions included coronary artery disease and fatty liver disease. The manner of death was determined to be an accident. A death certificate cited the immediate cause of death as central nervous system depression, due to polypharmacy toxicity (drugs, alcohol). Other significant conditions contributing to death but not resulting in the underlying cause included coronary artery disease and fatty liver disease. The death certificate noted that the Veteran's death occurred, at a hotel, due to apparent acute and chronic use/consumption of analgesic/other medications and alcohol. VA treatment records dated in 2007 show that his active outpatient medication list included aloe vesta, diazepam, etodolac, a hemorrhoidal suppository, hydrocodone/acetaminophen, a hydrocortinsone insert, lubricating top jelly, a multivitamin, phenazopyridine, quetiapine fumarate, sertraline, simvastatin, talc top powder, and trazodone. The appellant contends that the Veteran's service connected disabilities created a constant condition of pain for which he had to take pain medications. She contends that for many years, he lived in constant pain, he took numerous medications, and he also suffered with PTSD (posttraumatic stress disorder), and therefore his death is related to his service connected disabilities. At the January 2015 Board hearing, she testified that she believes the Veteran's many prescription drugs, prescribed by VA, contributed to his death. An April 2003 VA treatment record noted that when the Veteran was admitted for psychiatric treatment, he said he was not using any illicit drugs, but his urine was positive for a high level of cannabinoids, which he said he was using for pain relief. He stated that his depression was due to chronic pain that he has experienced since military service and due to disability that the pain has caused him. He increased his demand for drugs of addiction: first he wanted an increase in Valium, and then he asked for Oxycontin or Percocet or methadone. He stated that he did not want substance abuse treatment. The treating psychiatrist opined, "I get the feeling he may be abusing habit forming drugs." The diagnoses included major depressive disorder, pain disorder, alcohol abuse in early full remission, and cannabis abuse. Further, on August 2003 VA treatment, the Veteran reported that he used to buy codeine off the street and took it every day to help relieve pain. He was noted to have a history of depression as well. The diagnoses included PTSD, chronic with major depressive disorder; and episodic alcohol abuse. On February 2004 VA treatment, the Veteran was seen for treatment of PTSD, reportedly from being blown out of a jeep in the DMZ in 1977; he was noted to be service connected for the injury to his back from this same event. The Board notes that the Veteran was not service connected for PTSD during his lifetime; indeed, a May 2003 rating decision denied his claim for service connection for PTSD. The May 2003 rating decision noted that the Veteran's service treatment records are negative for traumatic injury to the lumbar spine, and he was not treated for mental problems associated with the death of a friend in a helicopter accident while in service. The decision stated that the in-service stressor found in the Veteran's VA treatment records was not verifiable; however, the VA treatment records did document treatment for major depression with history of alcohol, marijuana, and drug abuse. The Board also notes that the Veteran's service treatment records do not reflect any incident involving falling off, or being blown off, a Jeep. Additionally, the AOJ did not acknowledge any such incident in the original grant of service connection for mechanical back pain; the August 1987 rating decision that granted the Veteran service connection for mechanical low back pain noted numerous complaints of mechanical low back pain in service and a permanent profile. However, no mention was made of a specific incident or injury in service that may have caused the back pain. Nevertheless, in light of the fact that the Veteran was taking hydrocodone for pain (presumably due to his severe service-connected back disability), as well as the fact that hydrocodone was in his system at the time of his death from polysubstance toxicity, the matter must be remanded to obtain a VA medical opinion addressing whether the hydrocodone (or any other medication taken for one of the Veteran's service connected disabilities) contributed to cause his death. A medical opinion as to whether the Veteran had a substance abuse disorder, secondary to a psychiatric disability related to service or a service-connected disability, is also necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should forward the Veteran's claims file to an appropriate physician for review and an advisory medical opinion that responds to the following: (a) Based on the factual evidence of record is it at least as likely as not (a 50 percent or better probability) that hydrocodone or any other medication taken for one of the Veteran's service-connected disabilities, i.e., neurogenic bladder, postoperative status neuroma of the second and third left web spaces, epicondylitis of the right elbow, stress fracture of the bilateral tibias, postoperative bilateral inguinal hernias, plantar fasciitis of the right foot, and chronic prostatitis, contributed substantially or materially to the Veteran's death? In other words, did any such medication taken for treatment of a service-connected disability/ies, alone, or in combination with any other medication(s) taken for treatment of a service-connected disability/ies have a material influence in accelerating death? (b) Based on the factual evidence of record, is it at least as likely as not (a 50 percent or better probability) that the Veteran had a psychiatric disability related to service or to a service-connected disability? The examiner should note that no stressors have been verified to support a diagnosis of PTSD. (c) If, and only if, the opinion provider finds that the Veteran had a psychiatric disability related to service or to a service-connected disability, s/he should opine as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran had a substance abuse disorder secondary to such psychiatric disability? (d) If, and only if, the opinion provider finds that the Veteran had a substance abuse disorder secondary to such psychiatric disability is it at least as likely as not (a 50 percent or better probability) that his death due to polypharmacy toxicity (drugs, alcohol) was related to such substance abuse disorder? The consulting physician must explain the rationale for all opinions, with citation to factual data. 2. The AOJ should then re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).