Citation NR: 9803897 Decision Date: 02/09/98 Archive Date: 02/17/98 DOCKET NO. 94-01 971 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD C. W. Chambers, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to March 1972. He died in April 1993. The appellant is the veteran’s former spouse, and she is applying for benefits on behalf of the veteran's two minor children. This case comes to the Board of Veterans’ Appeals (Board) from a May 1993 RO decision which denied service connection for the cause of the veteran's death. In February 1996, the Board remanded the case to the RO for further evidentiary development. The case was returned to the Board in November 1997. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection for the cause of the veteran's death should be established. The appellant asserts that the veteran’s service-connected post-traumatic stress disorder (PTSD) resulted in either an intentional or accidental overdose of heroin and prescribed psychiatric medication, from which he died. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for the cause of the veteran's death must be denied as not well grounded. FINDING OF FACT The appellant has not submitted competent evidence to show a plausible claim for service connection for the cause of the veteran's death. CONCLUSION OF LAW The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background During his lifetime, the veteran's only service-connected disability was PTSD. Service connection for this condition was effective in January 1983; various disability ratings were assigned thereafter; and the disorder was rated 100 percent effective from April 1990 until the veteran’s death in April 1993. The veteran served on active duty from August 1969 to March 1972. Service medical records show no pertinent abnormalities. There are no pertinent post-service medical records until the 1980s. VA medical records dated from the 1980s and early 1990 show ongoing treatment, including periodic hospitalization, for alcohol and drug dependence, variously diagnosed psychiatric disorders including PTSD, and physical ailments. Some of the records note instances of suicidal ideation. A few representative medical records from this period may be briefly summarized, although there are many more such records on file. January 1983 hospital records show that the veteran reported experimentation with multiple controlled substances during military service, including heroin, opium, cocaine and marijuana, but he denied current use of these substances. A January 1984 discharge summary shows that the veteran was admitted after cutting his left wrist, although he denied suicidal ideation; the discharge diagnoses were PTSD, alcohol abuse, and lacerated wound on left wrist. A December 1984 discharge summary shows that the veteran was admitted after a recent car accident and an altercation with police, and he also reported that about a week before the admission he took an overdose of Thorazine; the primary Axis I discharge diagnosis was episodic alcohol abuse; and other diagnoses included an intermittent explosive disorder, PTSD, and an antisocial personality disorder. A September 1986 discharge summary shows that the veteran was hospitalized and placed on suicidal precautions after he lacerated his right wrist. Psychological testing was performed in March 1987, and the examiner determined that the veteran was a chronic suicidal risk; the diagnoses were alcohol abuse, PTSD by history, and borderline personality disorder. He was hospitalized in April-May 1988 for alcohol dependence and PTSD. A May 1990 hospital discharge summary shows that the veteran was admitted with complaints of auditory hallucinations; he denied any use of drugs or alcohol, but a drug screen of his urine was positive for cocaine; and the discharge diagnoses were PTSD and a borderline personality disorder. At a September 1990 VA compensation examination performed to evaluate his PTSD, the veteran reported intermittent suicidal ideation and denied a current intent to harm himself. An April 1991 VA hospital discharge summary shows that the veteran was admitted in March 1991 for increasing suicidal and homicidal ideation; a review of systems was positive for intravenous cocaine abuse, and the discharge diagnoses were PTSD and cocaine abuse. VA medical records show treatment for cholecystitis in November 1992, and it was also noted he had a history of intravenous drug abuse and a personality disorder. A December 1992 VA compensation examination noted that the veteran's current medication included Doxepin, Clonopin or Clonazepam, and Perphenazine. The veteran reported occasional fleeting thoughts of suicide and said, “I suppose if I live long enough I will probably take my life.” The diagnoses were PTSD and episodic alcohol dependence secondary to PTSD. Subsequent VA outpatient records, dated to February 1993, show treatment for PTSD and physical ailments, and it was noted the veteran was still drinking; further treatment was planned. The veteran’s death certificate, signed by Dr. R.M. Kline, the coroner, reveals that the veteran died at his residence on April 5, 1993. The immediate cause of death was cardiorespiratory arrest, due to an overdose of heroin combined with perphenazine, doxepin and “klonepin” [apparently Clonopin]. No other conditions were listed as contributing to death. The manner of death was classified as natural (rather than accident, suicide, or homicide). The certificate does not indicate whether an autopsy was performed. In April 1993, the appellant submitted a claim for service connection for the cause of the veteran’s death. In a substantive appeal received in September 1993, the appellant asserted that the deterioration of the veteran's mind and body due to PTSD caused an inability to be responsible for his actions, and led to taking a drug in combination with his prescribed medication which led to his death. The appellant requested a Travel Board hearing. By letter dated in June 1994, the VA advised the appellant that she would be given further information regarding the scheduling of her requested hearing. The appellant never responded to this letter, and by a letter dated in July 1994, the appellant's then-representative advised the RO that attempts to contact the appellant had been unsuccessful. A memorandum dated in September 1994 indicated that the appellant's whereabouts were unknown to the RO and to her representative. In February 1996, the appellant's case was remanded in part to obtain copies of the coroner’s report relating to the veteran’s death. By a letter to the appellant dated in March 1996, the RO requested additional information and assistance in obtaining the coroner’s report; the appellant was also given an opportunity to appoint her own representative. This letter was returned by the postal service as undeliverable. The RO contacted the postal service and requested the appellant's current address. In April 1996, the postal service responded with the appellant's address. The RO re-mailed the request for information to the appellant in May 1996; the appellant did not respond to this letter. By a letter to Dr. Kline dated in March 1996, the RO requested a copy of the coroner’s report. This letter was returned by the postal service as undeliverable. In March 1996, the RO contacted the postal service and requested the current address of the coroner in the town of the veteran's residence at the time of his death. In April 1996, the postal service responded, indicating that Dr. Kline had retired, and that the new coroner’s name was Dr. J. Yocum. By a letter dated in April 1996, the RO contacted Dr. Yocum and requested a copy of the coroner’s report relating to the veteran's death. By a letter dated in May 1996, Dr. Yocum stated that the only record in his possession relating to the veteran was a toxicology report, and enclosed the report with a duplicate copy of the death certificate. An attached toxicology report dated in April 1993 shows positive results for tricyclics, amphetamines, cocaine, and opiates. II. Legal Analysis The appellant contends that the veteran’s service-connected PTSD caused or contributed to his fatal overdose of heroin and prescribed psychiatric medication. She argues that the overdose may have been a suicide because of PTSD, or that, even if the death was accidental, the use of heroin and precribed medication was due to PTSD. To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service- connected disability to constitute a contributory cause, it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by service, and not the result of the veteran's own willful misconduct or (for claims filed after October 31, 1990) the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.301, 3.303. Secondary service connection may be granted for a disability which is proximately due to or the result of an established service- connected disorder. 38 C.F.R. § 3.310. A recent precedent VA General Counsel’s opinion concluded that, just as with direct service connection, secondary service connection is precluded for alcohol or drug abuse. VAOPGCPREC 2-97. Similarly, service-connected death benefits may not be paid where the disability from which the veteran died resulted from alcohol or drug abuse. VAOPGCPREC 11-96. VA General Counsel precedent opinions are binding on the Board. 38 U.S.C.A. § 7104(c); Brooks v. Brown, 5 Vet. App. 484 (1993). The threshold question in this case is whether the appellant has met her initial burden of submitting evidence to show that her claim, for service connection for the cause of the veteran's death, is well grounded, meaning plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If she has not done so, there is no VA duty to assist her in developing the claim, and the claim must be denied. Id. For a claim to be well grounded, it must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). When, as in the present case, the determinative issue involves questions of medical diagnosis and causation, competent medical evidence is required to make the claim well grounded; lay opinions by the appellant on such matters are not competent evidence and do not serve to make the claim well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). For a claim of service connection for the cause of the veteran's death to be well grounded, there must be competent medical evidence that an established service- connected disorder caused or contributed to death, or medical evidence that the conditions involved in death are linked to service or to an established service-connected condition. Ruiz v. Gober, 10 Vet App 352 (1997); Johnson v. Brown, 8 Vet. App. 423 (1995). The veteran's only established service-connected disability was PTSD, with a 100 percent disability evaluation. The veteran died at his residence in April 1993, more than two decades after his March 1972 release from active duty. The death certificate shows death resulted from cardiorespiratory arrest, due to an overdose of heroin combined with perphenazine, doxepin, and Clonopin. The typical entry of cardiorespiratory arrest on the death certificate does not refer to chronic heart or lung disease; rather it refers to the final event of death (cessation of heart and lung functioning). The death certificate shows the only cause of death was a drug overdose, heroin combined with prescribed psychiatric medication. Multiple attempts to obtain any coroner’s report relating to the veteran's death have been unavailing; the only other information from the coroner is a toxicology report showing evidence of the drugs involved in the fatal overdose. Although some of the drugs listed on the death certificate were prescribed medication for PTSD, it is clear that the primary drug involved in the overdose was heroin, an illicit drug. There is no medical evidence to support the appellant’s apparent theory that the veteran’s death was due to an adverse reaction to properly used prescibed psychiatric medication. The appellant also argues that the heroin overdose, even if accidental, was a product of PTSD; however, as noted in the cited legal authority, secondary service connection is precluded for substance abuse. The appellant further maintains that the veteran’s death was a suicide caused by PTSD. Subject to certain conditions, regulation, 38 C.F.R. § 3.302, permits service connection for the cause of a veteran’s death from suicide, when service-connected mental unsoundness leads to suicide. However, the death certificate classifies the veteran’s death as natural (not a suicide), and no medical evidence has been submitted to show his death was a suicide. No competent medical evidence has been submitted to show that PTSD caused or contributed to the veteran's death. The death certificate and other medical evidence do not link the established service-connected condition to the veteran's death, nor do they link the fatal drug overdose with service or the established service-connected condition, as required for a well-grounded claim for service connection for the cause of death. Ruiz, supra, Johnson, supra. Statements by the appellant on such matters do not constitute competent medical evidence, since, as a layman, she has no competence to give a medical opinion on diagnosis or etiology of a disorder. LeShore v. Brown, 8 Vet. App. 406 (1995); Dean v. Brown, 8 Vet. App. 449 (1995). In the absence of competent medical evidence of causality, as discussed above, the appellant's claim for service connection for the cause of the veteran's death is implausible and must be denied as not well grounded. ORDER Service connection for the cause of the veteran's death is denied. L. W. TOBIN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -