Citation Nr: 0103062 Decision Date: 01/31/01 Archive Date: 02/02/01 DOCKET NO. 96-08 925A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Daniel D. Wedemeyer, Attorney WITNESSES AT HEARINGS ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought on appeal. The appellant, the surviving spouse of a veteran who had active service from November 1966 to November 1968, appealed those decisions to the BVA, and the case was referred to the Board for appellate review. In April 1998 the Board entered final decisions with respect to the issues of an increased evaluation for post-traumatic stress disorder (PTSD) for purposes of accrued benefits and an earlier effective date for the award of accrued benefits. As such, neither of these issues remains for appellate consideration. The Board remanded the issue of entitlement to DIC benefits to the RO for additional development, and the case was subsequently returned to the Board for appellate review. Also in the BVA's April 1998 decision, the Board referred the issues of clear and unmistakable error in rating decisions dated in March 1987 and February 1990 to the RO for appropriate action. The RO informed the appellant and her representative that the February 1990 rating decision had been subsumed in the Board's decision dated in August 1992 and that the RO had no authority to review that rating decision. See 38 C.F.R. § 20.1104 (2000). The RO informed the appellant and her representative of her right to file a Motion for Reconsideration of the BVA decision pursuant to 38 C.F.R. §§ 20.1000-1001. In addition, the Board informed the appellant and her representative that a statute enacted by Congress now permitted challenges to Board decisions on the grounds of clear and unmistakable error. See 38 U.S.C.A. § 7111 (West 1991 & Supp. 2000). However, the record now before the Board does not contain a Motion for Reconsideration or request for revision of the Board decision based on clear and unmistakable error. As such, these matters are not prepared for appellate review and will not be addressed in this decision. A BVA decision dated August 5, 1999, denied the appellant's claim for DIC benefits. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2000 the parties filed a Joint Motion to Vacate and Remand the Board of Veterans' Appeals Decision and for a Stay of Further Proceedings (Joint Motion), and later in February 2000 the Court vacated the Board's decision and returned the case to the Board for proceedings consistent with the Court's order. In July 2000 the Board referred this case for review by a medical expert in the field of psychiatry not associated with the VA. A report from that expert physician dated in August 2000 was received, a copy of which was provided to the appellant's representative in October 2000. No additional evidence or argument was provided by the appellant's representative. Given the Board's decision in this case, as set forth below, the record now raises the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1311(a)(2). See Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000). However, this matter has not been addressed by the RO, and accordingly, this matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran's death certificate showed he died in June 1995 at the age of 47 as the result of a drug overdose. 3. At the time of the veteran's death, service connection had been established for PTSD, evaluated as 100 percent disabling for a period of two years prior to the veteran's death. 4. The drug overdose which caused the veteran's death was due to a substance abuse disorder which was causally or etiologically related to the veteran's service-connected PTSD. 5. A disability of service origin is shown to have caused the veteran's death. 6. The veteran was not continuously rated totally disabled by reason of a service-connected disability for a period of 10 years or more immediately preceding his death, or from five years from the date of his discharge from service. CONCLUSION OF LAW The requirements for payment of DIC benefits have been met. 38 U.S.C.A. §§ 1310, 1318, 5107 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.102, 3.22, 3.12 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION When a veteran dies from a service-connected disability, the veteran's surviving spouse is eligible for DIC. See 38 U.S.C.A. § 1310 (West 1991 & Supp. 2000); 38 C.F.R. § 3.5(a) (2000). A service-connected disability is one that was contracted in the line of duty and was incurred in or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b); See also 38 C.F.R. § 3.310(a) ("disability which is proximately due to or the result of a service-connected disease or injury shall be service connected"). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). In addition, in claims involving alcohol or drug abuse, 38 U.S.C.A. § 1110, "by its terms, prohibits only the payment of 'compensation' for disability due to alcohol and drug abuse; it does not bar an award of service connection." Barella v. West, 11 Vet. App. 280, 283 (1998). Further, the VA General Counsel has held that the law does not preclude service connection under 38 C.F.R. § 3.310(a) of a substance abuse disability that is proximately due to or the result of a service-connected disease or injury, but the disability compensation cannot be paid for such a disability. However, the General Counsel also held that as DIC was a benefit distinct from disability compensation, it was not affected by the laws prohibition on payment of disability compensation for substance abuse disability and that the VA may award DIC to a veteran's surviving spouse based on a veteran's death from a substance abuse disability secondary to a service- connected disability. See VAOPGCPREC 7-99 (June 9, 1999). Even if a service-connected disability did not cause or contribute to a veteran's death, a surviving spouse may be entitled to receive DIC benefits as if the veteran's death was service connected when the veteran meets the requirements set forth in 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.322. Under 38 U.S.C.A. § 1318, payment of DIC is provided as if the cause of the veteran's death were service-connected where the veteran has died under the following conditions: [Not] as a result of the veteran's own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for service- connected disability that either- (1) was continuously rated totally disabled for a period of 10 or more years immediately preceding death; or (2) if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or release from active duty. 38 U.S.C.A. § 1318(b). Hence, DIC may be awarded on four separate bases, each of which requires particular evidence: a regular service-connected death basis under 38 U.S.C.A. § 1310, and three bases under § 1318: (1) the veteran was continuously rated totally disabled for 10 or more years preceding death; (2) the veteran was continuously rated totally disabled for five or more years immediately preceding death if also so rated at the date of discharge; or (3) that the veteran would have been entitled to receive the 100 percent compensation referred to in (1) or (2), above, at the time of the death, but was not receiving it for some reason. See Green v. Brown, 10 Vet. App. 111, 115 (1997); see also Marso v. West, 13 Vet. App. 260 (1999); c.f. 38 C.F.R. § 3.22 (2000). In this case, the appellant essentially contends that the veteran's death was caused by his PTSD symptomatology. It is asserted that the veteran self-medicated his PTSD with narcotics on a fairly consistent basis and that in conjunction with this a drug overdose caused his death. It is maintained that had he not been suffering from PTSD the veteran would not have used drugs and that he would not have died from a drug overdose. It is also contended that the veteran was totally disabled due to his PTSD symptomatology for a period of time in excess of 10 years prior to his death. I. DIC Benefits Under 38 U.S.C.A. § 1310 With respect to the appellant's claim for service connection for the cause of the veteran's death, the veteran's death certificate shows he died in June 1995 as a result of a drug overdose. An autopsy concluded that the veteran died of an overdose of a morphine alkaloid-type drug. A high concentration of morphine was detected in his blood, but it was not possible to determine whether the morphine was taken as morphine or as heroin. Service medical records contain no evidence of complaints, treatment or diagnosis of any drug abuse during service although post-service medical records reflect reports by the veteran that he began using drugs before or during service. In this regard, a private hospitalization of the veteran in September 1991 indicated that the veteran had been exposed for a long period of time to use of heroin in heavy doses on a daily basis. It was reported that he started use of heroin while in the service. On transfer to another private hospitalization, the diagnosis was of a character neurosis with drug dependence. A July 1982 psychiatric evaluation performed by Victor M. Azela, M.D., indicates that the veteran began using heroin mixed with marijuana during service because pain and fear were so great and that he became so addicted that he was using a great deal of it. However, a record of a private hospitalization of the veteran in March 1977 reported a history of drugs and drinking which started in high school. As for psychiatric diagnoses, a VA examination performed in June 1980 concluded with a diagnosis of mild anxiety neurosis, and a VA examination performed in February 1982 concluded with a diagnosis of anxiety reaction in a person with a history of narcotic addiction. That examination specifically commented that the veteran did not meet the criteria for PTSD. During a VA examination performed in November 1984, the veteran reported that following a back injury he was prescribed medication for pain, but that he switched to heroin and marijuana once he reached Vietnam. Following the examination, the veteran was diagnosed as having PTSD. Subsequent VA treatment and examination reports continued to diagnose the veteran as having PTSD. In order to clarify whether the veteran had a substance abuse disorder that preexisted service or whether such a disorder was causally or etiologically related to his service- connected PTSD the Board obtained an opinion from an expert in the field of psychiatry. In a report dated in August 2000 Allen Richert, M.D. was asked and answered the following two questions: 1. Did the veteran have a substance abuse disorder which preexisted service and/or service in Vietnam? Conclusion While the information available for review does not unequivocally preclude the possibility that the appellant had a substance-related disorder, to assign a substance-related disorder based on only two one-line statements that mention only drug use, among 28 years worth of medical records would be medically inappropriate. Even though there may have been reasons for the appellant to hide his history of substance abuse prior to entering service, the fact stands that the appellant's medical record contained multiple unabashed references to the appellant's post service substance- related disorder yet made no mention of significant substance use prior to his military service. Based on the above, My opinion is that the appellant did not have a substance-related disorder prior to his military service and/or service in Vietnam. 2. Was the substance abuse disorder which ultimately caused the veteran's death as least as likely as not due to or etiologically related to his PTSD? Conclusion The psychiatric literature contains overwhelming evidence that there is a connection between PTSD and substance- related disorders whether or not one causes the other is less certain. But a recent study of a large number of people suggests that substance-related disorders are etiologically related to PTSD (i.e., people with PTSD are predisposed to develop a substance-related disorder). The appellant, the appellant's wife, and clinicians have provided care for the appellant recognized and reported that the appellant used substances to reduce symptoms of PTSD. The above lend considerable support to the hypothesis that the appellant's substance-related disorder was etiologically related to his PTSD. Based on the above, my opinion is that the appellant's substance-related disorder was etiologically related to his PTSD. (Emphasis in original.) Based on this evidence, the Board finds that the veteran's death was due to a disability of service origin, and more specifically, due to a substance abuse disorder which was causally and etiologically related to a service-connected PTSD. See 38 C.F.R. § 3.310(a); Barella v. West, 11 Vet. App. 280 (1998); VAOPGCPREC 7-99 (June 9, 1999). Accordingly, the requirements for DIC benefits under 38 U.S.C.A. § 1310 have been met. II. DIC Under 38 U.S.C.A. § 1318 As for DIC benefits under 38 U.S.C.A. § 1318, the Board finds that this aspect of the appellant's claim is moot since DIC benefits had been awarded by this decision under 38 U.S.C.A. § 1318. As such, no further monetary benefits are payable. As for whether the veteran was totally disabled for a period of 10 years prior to his death, as contended by the appellant, the provisions of 38 U.S.C.A. § 5121 clearly limit payment to the appellant of benefits due and unpaid to the veteran for a period not to exceed two years prior to his death. Since the appellant was previously awarded benefits representing a 100 percent evaluation for the veteran's PTSD for a period of two years prior to his death no further monetary benefits on an accrued basis would be payable to the appellant. ORDER Dependency and indemnity compensation benefits are granted. S. L. KENNEDY Veterans Law Judge Board of Veterans' Appeals