Citation Nr: 9919013	
Decision Date: 07/13/99    Archive Date: 07/20/99

DOCKET NO.  95-17 376	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) 
benefits under 38 U.S.C.A. § 1310 (West 1991) on the basis of 
secondary service connection for the cause of the veteran's 
death by a substance-abuse disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and [redacted]

ATTORNEY FOR THE BOARD

Christopher P. Kissel, Counsel


INTRODUCTION

The veteran served on active duty from November 1966 to 
August 1968.  He died in September 1994.  The appellant is 
the surviving spouse of the deceased veteran.

This case comes before the Board of Veterans' Appeals (the 
Board) on appeal from a February 1995 rating decision of the 
Philadelphia, Pennsylvania, Department of Veterans Affairs 
(VA) Regional Office (RO).

The appellant and [redacted] testified before the 
undersigned Member of the Board at the Washington, DC, 
headquarters on May 26, 1998.  A transcript of that hearing 
has been associated with the record on appeal.


FINDINGS OF FACT

1.  The veteran served on active duty from November 1966 to 
August 1968.  He died in September 1994.

2.  The appellant is the unremarried surviving spouse of the 
veteran.

3.  Medical records in the file reflect that the veteran died 
of alcoholic liver disease, a substance-abuse disability, 
that was first diagnosed in the early 1980s.

4.  Medical opinions by VA psychiatrists dated from 1985 
indicate that the veteran had PTSD along with a history of 
drug/alcohol addiction problems that started in Vietnam due 
to the stress of being in that environment. 

5.  During his lifetime, the veteran was service connected 
for PTSD, rated 100 percent disabling since May 1988.


CONCLUSION OF LAW

Secondary service connection for the cause of the veteran's 
death for purposes of payment of DIC benefits is warranted.  
38 U.S.C.A. §§ 1310, 5107(b) (West 1991); 38 C.F.R. 
§§ 3.310(a), 3.312 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Factual Background

The pertinent facts may be briefly set forth as follows:  The 
appellant in this case is the unremarried surviving spouse of 
the veteran who served on active duty from November 1966 to 
August 1968.  His service included a war-time tour of duty in 
Vietnam.  He died in September 1994 at the age of 49.  
Medical records in the file reflect that the veteran died of 
alcoholic liver disease, a substance-abuse disability, that 
was first diagnosed in the early 1980s.  During his lifetime, 
he was service connected for post traumatic stress disorder 
(PTSD), rated 100 percent disabling since May 1988.  The 
appellant contends that her late husband's liver disease was 
caused by his PTSD, i.e., he drank to excess as a way of 
coping with his PTSD, and that such drinking led to liver 
disease; hence, her claim for DIC benefits is based on a 
secondary service connection theory of entitlement.  See 38 
C.F.R. § 3.310 (1998).  On appeal, the appellant has pointed 
to medical reports from Drs. Grace Frank and A. S. Falcon 
dated in 1985 in support of her contentions on this matter.  
Dr. Frank, a VA psychiatrist when he prepared a report on the 
veteran's condition in November 1985, stated that the veteran 
had chronic alcohol and drug dependence secondary to his 
PTSD.  Dr. Falcon, also a VA psychiatrist when he prepared a 
similar clinical treatment report in May 1985, was less 
explicit, but like Dr. Frank, concluded that the veteran had 
PTSD along with a history of drug/alcohol addiction problems 
that started in Vietnam due to the stress of being in that 
environment.

Analysis

DIC is payable to certain survivors of "any veteran [who] 
dies after December 31, 1956, from a service-connected or 
compensable disability."  38 U.S.C. § 1310(a) (West 1991).  
DIC is also payable in the same manner as if the veteran's 
death were service connected to certain survivors of a 
veteran "who was in receipt of or entitled to receive . . . 
compensation at the time of death for a service-connected 
disability" continuously rated totally disabling for an 
extended period immediately preceding the veteran's death.  
38 U.S.C. § 1318(a) and (b) (West 1991).

Section 8052 of the Omnibus Budget Reconciliation Act of 
1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351, 
(hereinafter "OBRA") amended former 38 U.S.C. §§ 310 
and 331 (now designated §§ 1110 and 1131) to prohibit, 
effective for claims filed after October 31, 1990, payment of 
compensation for any disability that is "a result of the 
veteran's own . . . abuse of alcohol or drugs."  
Section 8052 also amended 38 U.S.C. § 105(a) to provide that, 
with respect to claims filed after October 31, 1990, an 
injury or disease incurred during active service will not be 
deemed to have been incurred in line of duty if the injury or 
disease was a result of the person's own abuse of alcohol or 
drugs.  However, section 8052 did not amend what are now 
38 U.S.C. §§ 1310 and 1318, and its text does not refer to 
DIC.

Since the passage of the OBRA in 1990, the General Counsel of 
VA issued three precedent opinions dealing with the question 
of whether section 8052 of the OBRA prohibits 
eligibility/entitlement to certain VA benefits:

VAOPGCPREC 11-96 held that section 8052 prohibits the payment 
of DIC based on a veteran's death resulting from such a 
disability or on the basis that the veteran was in receipt of 
or entitled to receive compensation for such a disability 
continuously rated totally disabling for an extended period 
immediately preceding death.  See 61 Fed. Reg. 66750 (1996).

VAOPGCPREC 2-97 held that payment of disability compensation 
was prohibited under section 8052 whether the claim was based 
on direct service connection or, under 38 C.F.R. § 3.310(a), 
on secondary service connection of a disability proximately 
due to or a result of a service-connected condition.  See 62 
Fed. Reg. 15566 (1997).

VAOPGCPREC 2-98 held that for purposes of all VA benefits, 
eligibility for which required a service-connected disability 
or death, section 105(a) of 38 U.S.C. precluded service 
connection of a disability resulting from alcohol or drug 
abuse on the basis of the disability's incurrence or 
aggravation in service or of a death resulting from such a 
disability.  However, for purposes of all such VA benefits 
other than disability compensation, the amendments made by 
section 8052 did not preclude eligibility based on a 
disability, or death resulting from such a disability, 
secondarily service connected under 38 C.F.R. § 3.310(a) as 
proximately due to or the result of a service-connected 
disease or injury.  See 63 Fed. Reg. 31263 (1998).

However, the holding in VAOPGCPREC 2-98 was limited to an 
enumerated class of "all such VA benefits other than 
disability compensation," specifically:  dependents' 
educational assistance under Chapter 35, U. S. Code; burial 
benefits; accrued benefits; surviving spouses' loan guaranty 
benefits; the special allowance under 38 U.S.C. § 1312; 
medical care under the CHAMPVA program; and, increased rating 
claims filed after October 31, 1990.

In paragraph 14 of 2-98, the General Counsel explained that 
because section 105(a) of 38 U.S.C., as amended by the OBRA, 
was inapplicable to a determination of whether a disability 
was proximately due to or the result of a service-connected 
disease or injury, it did not itself preclude secondary 
service connection of a substance-abuse disability.  In a 
footnote to this sentence, the General Counsel observed that 
the issue of secondary service connection was not addressed 
in VAOPGCPREC 11-96, and consequently, "[o]ur conclusions 
that a disability service connected under 38 C.F.R. 
§ 3.310(a) is service connected for purposes of all VA 
benefits and that 38 U.S.C. § 105(a) does not itself preclude 
secondary service connection of a substance-abuse disability 
apply to claims for DIC as well as to claims for the other VA 
benefits discussed in this opinion."

A decision of the United States Court of Appeals for Veterans 
Claims (the Court) handed down since the passage of OBRA 
provided further guidance on the adjudication of claims for 
secondary service connection for a substance abuse 
disability.  In the case of Barela v. Gober, 11 Vet. App. 280 
(1998), the Court noted that 38 U.S.C. § 1110 (West 1991) did 
not prohibit service connection for such disability, although 
it did prohibit payment of compensation for such disability.

Because this case involved a complicated legal question 
raised by the holdings of the three General Counsel opinions 
and the Barela case vis-à-vis the award of DIC based on 
secondary service connection for a substance abuse 
disability, in December 1998, the Board exercised its 
authority under 38 C.F.R. § 20.901 (1998) to request an 
opinion from the General Counsel.

In its opinion request of December 1998, the Board stated 
that a possible construction of paragraph 14 and its footnote 
in VAOPGCPREC 2-98 appeared to be that service connection on 
a secondary basis could be afforded for a disability due to 
substance abuse when such substance abuse was proximately due 
to or the result of a service-connected disability, and that 
DIC could be paid to a survivor if the veteran's death was 
the result of a disability therefore secondarily service 
connected.  However, because the language cited above 
appeared only in a footnote to the opinion, it was not clear 
whether the construction was the intended meaning.

Accordingly, in June 1999, the General Counsel issued 
VAOPGCPREC 7-99 in response to the Board's request for same 
dated in December 1998, of record.  This opinion was made 
part of the record on appeal and, in accordance with the 
Board's notice and comment procedures, was made available to 
the appellant and her representative for review and response 
prior to the preparation of this decision.  38 C.F.R. 
§ 20.903 (1998); see also Thurber v. Brown, 5 Vet. App. 119 
(1993) and Austin v. Brown, 6 Vet. App. 547 (1994).

In response to the Board's request, VAOPGCPREC 7-99 addressed 
the following questions pertaining to the facts in this case:

In light of the decision of the [Court] 
in Barela v. West, 11 Vet. App. 280 
(1998), and VAOPGCPREC 2-98, may [DIC] be 
considered "disability compensation"?

May [VA] award DIC based either on a 
veteran's death caused by a disability 
due to substance abuse that was itself 
secondary to a service-connected 
disability or on a veteran's death while 
receiving or entitled to receive 
compensation for such a substance-abuse 
disability that was continuously rated 
totally disabling for an extended period 
immediately preceding death?

After a lengthy discussion of the relevant facts, law, 
regulations, and legal precedents, the General Counsel 
concluded the following with respect to these two questions:

[DIC] is a benefit distinct from 
disability compensation for purposes of 
the amendments made by section 8052 of 
the [OBRA] of 1990 and is not affected by 
that Act's prohibition on payment of 
disability compensation for substance-
abuse disability.

VA may award [DIC] to a veteran's 
surviving spouse based on either the 
veteran's death from a substance-abuse 
disability secondarily service connected 
under 38 C.F.R. § 3.310(a) (entitlement 
established under 38 U.S.C. § 1310) or 
based on a veteran's death while in 
receipt of or entitled to receive 
compensation for a substance-abuse 
disability secondarily service connected 
under section 3.310(a) and continuously 
rated totally disabling for an extended 
period immediately preceding death 
(entitlement established under 38 U.S.C. 
§ 1318).

Title 38, U. S. Code, states that the Board "shall be bound 
in its decisions by the regulations of the Department, 
instructions of the Secretary, and the precedent opinions of 
the chief legal officer of the Department."  38 U.S.C.A. 
§ 7104(c) (West 1991).

The holding of the General Counsel in VAOPGCPREC 7-99 
provides a legal basis for awarding DIC benefits under 38 
U.S.C.A. § 1310 for substance abuse disabilities secondarily 
service connected under 38 C.F.R. § 3.310.  Moreover, the 
holding provides that disability compensation is payable in 
the event DIC is awarded in this manner.  38 C.F.R. 
§ 3.310(a) provides that a disability which is proximately 
due to or the result of a service-connected disease or injury 
shall be service connected.  To establish entitlement to 
service connection for the cause of the veteran's death, the 
evidence must show that a service-connected disability either 
caused or contributed substantially or materially to cause 
death.  38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 
(1998).

In view of the foregoing, the Board concludes that the 
appellant is entitled to DIC benefits under section 1310 on 
the basis that her late husband's death by a substance abuse 
disability, in this case, alcoholic liver disease, is service 
connected on a secondary basis to his PTSD.  In this case, 
the medical evidence shows that the veteran's problems with 
alcohol and his service-connected PTSD were interrelated for 
all practical purposes, and hence, a logical inference can be 
drawn to conclude that his PTSD contributed a great deal to 
cause his death by alcoholic liver disease.  The medical 
reports dated in 1985 from Drs. Frank and Falcon make clear 
that the veteran had many problems coping with his PTSD 
symptoms in the years after service, and that one of the ways 
he dealt with these problems was to drink alcohol to excess.  
Dr. Frank's report of November 1985 is particularly 
persuasive in this regard, as this VA psychiatrist concluded 
that the veteran had chronic alcohol and drug dependence 
secondary to his PTSD.  Resolving all reasonable doubt in 
favor of the appellant, secondary service connection for the 
cause of the veteran's death is warranted.  38 U.S.C.A. 
§ 5107(b) (West 1991).

In light of the Board's grant of DIC under section 1310, 
further consideration of the appellant's claim for DIC 
benefits under 38 U.S.C.A. § 1318 is not in order.  See e.g. 
Ruiz v. Gober, 10 Vet. App. 352 (1997) (purpose of section 
1318 is to allow benefits for claimants who would not 
otherwise be entitled to DIC benefits under section 1310).


ORDER

Secondary service connection for the cause of the veteran's 
death is granted for purposes of payment of DIC benefits 
under 38 U.S.C.A. § 1310.



		
	A. BRYANT
	Member, Board of Veterans' Appeals