Citation Nr: 0810503 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-01 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the veteran's death. ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The veteran had active service from October 1987 to August 1992. He died in January 2002, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the benefit sought on appeal. In October 2006 the Board remanded the claim to the RO for further development. FINDINGS OF FACT 1. The veteran's death certificate shows that he died on January [redacted], 2002; the immediate cause of death was acute fluorocarbon intoxication and no secondary causes of death or other significant conditions contributing to death were listed. 2. The veteran's service connected disabilities included fracture, right great toe, fracture, left hand, fracture with nose deformity, hemorrhoids and eczema; the veteran was not service connected for PTSD. 3. The veteran's PTSD contributed to cause his death. 4. None of the veteran's alleged stressor events in service have been verified. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant has been advised of VA's duties to notify and assist in the development of his claims. A May 2002 letter from the RO explained what the evidence needed to show to substantiate the claim. A subsequent February 2006 letter reiterated the evidence necessary to substantiate the claim. This letter also explained that VA was responsible for obtaining relevant records from any federal agency, and that VA would make reasonable efforts to obtain records not held by a federal agency, but that it was the appellant's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. Additionally this letter advised the appellant to submit any evidence in her possession pertaining to his claim. A separate June 2006 letter provided notice regarding effective dates of awards in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although complete VCAA notice was not given prior to the rating on appeal, the appellant had ample opportunity to respond to the notice letters and to supplement the record after notice was given. Additionally, the case was readjudicated by supplemental statements of the case in December 2007 and January 2008 after complete notice was given. The appellant is not prejudiced by any technical notice deficiency that may have occurred along the way, and no further notice is required. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Regarding VA's duty to assist, the RO has obtained the veteran's service medical and service personnel records, along with available VA and private medical evidence. Also, the RO attempted to verify that the veteran incurred the one PTSD related stressor event that was identified with sufficient specificity by the veteran and the appellant for verification purposes, the fire aboard the USS Ouellet in May 1989. Additionally the RO obtained a medical opinion pertaining to a potential relationship between the veteran's death and PTSD. The appellant has not identified any additional evidence pertinent to this claim. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background Personnel records show that the veteran served as an Operations Specialist. He completed boot camp on December 9, 1987, and then completed Operations Specialist "A" school on April 9, 1988. On July 16, 1998, he began service on the USS Ouellet, a fast frigate and he was assigned to the Ouellet for the remainder of his service. Service medical records do not show any treatment or diagnosis for PTSD or other psychiatric disability. The veteran was treated for alcoholism. An April 1994 rating sheet shows that the veteran was service connected for the following disabilities fracture, right great toe, fracture, left hand, fracture with nose deformity, hemorrhoids and eczema. In a statement contained in a February 1995 medical record the veteran indicated that after A school he volunteered for the Navy Seals. He found it fun and exciting and he passed fifth in his class. After his first mock mission in Mexico, however, he realized that his heart was not in it and he quit. In accordance with his quit option he could pick any assignment he wanted. He chose the fast frigate out of Pearl Harbor, the USS Ouellet. While serving on the Ouellet, a fire occurred on a ship traveling with the Ouellet, the USS White Plains. A boiler blew in the engine room and then one of the DFM tanks and one "JOT" tank ruptured and caught fire. All the TINS responded and since the veteran was not on watch he was on the damage control team sent from the Ouellet. It took 18 hours to contain or suppress the fire enough to get to engineering. The veteran was number 1 nozzle man when the team finally got the hatch up. He vomited in his mask as the watch from the White Plains was all piled on top of each other, all black and disfigured. He was relieved but 8 hours later he was on the recovery team. Then a week later in the Philippines he found out that one of the men killed was his bunkmate from boot camp. A social history contained in a March 1995 VA inpatient discharge summary shows that the veteran reported that he enlisted in the Navy in 1987 and managed to avoid disciplinary actions as a result of his superior performance as an operations specialist. He drank heavily during his entire military service. While in the Philippines he rescued others from a burning ship and continued to have nightmares and intrusive thoughts about the event when he was not drinking. VA medical records from March 1995 to January 2002 show ongoing treatment for mental disorder including PTSD and alcohol dependence. A September 1996 VA inpatient discharge summary shows that the veteran reported service in the Persian Gulf. He did not see combat but did experience a traumatic situation with a shipboard fire in which he handled human bodies while assisting in suppressing the fire. An October 2001 Social Workers letter shows that the veteran was scheduled to participate in an inpatient PTSD program at the Seattle VAMC starting January [redacted], 2002, the date that he died. VA medical records from October 2001 to January 2002 show mental health and alcohol treatment. Diagnoses included PTSD, alcohol dependence, acute alcohol withdrawal and mood disorder NOS. The veteran's January [redacted], 2002 death certificate shows that the immediate cause of death was probable acute fluorocarbon intoxication. No secondary causes of death or other significant conditions contributing to death were listed on the certificate. A March 2003 letter from a treating VA psychiatrist, Dr. T indicated that he had treated the veteran during two treatment episodes between January 29, 2001 and November 7, 2001. Dr. T noted that the veteran was a Navy Seal involved in both Gulf War combat and extreme trauma related to a Panama mission. His PTSD resulted from his exposure to traumatic incidents in the operation to bring Noriega to the U.S. from Panama and also some incidents in other war related activities. Dr. T felt that the veteran's PTSD was directly caused by traumatic experiences sustained in Panama during his military service. Dr. T further noted that the veteran suffered from severe alcohol dependence and clearly used alcohol as part of his efforts to cope with symptoms of hyperarousal, anxiety and re-experiencing of traumatic images. At the time of the veteran's death he was extremely apprehensive about undergoing an intensive inpatient program for PTSD. His wife stated that he knew that he would not be allowed to receive the treatment if he was actively using alcohol. Apparently, in the weeks before his death, the veteran began to abuse Freon as a chemical means of escaping from the distress due to his PTSD. The cause of the veteran's death was probable acute fluorocarbon intoxication, a chemical agent he abused as a means of avoidance of symptoms of PTSD. Avoidance of such symptoms was a key diagnostic part of the PTSD syndrome caused by the veteran's military trauma exposure. Dr. T reviewed the veteran's past record, an emergency note and the death certificate. In an April 2003 letter the appellant indicated that from the time that she met the veteran in 1997 he had serious mental problems relating to his military career. He was an alcoholic and was depressed and he had nightmares that scared him and the appellant. He had been diagnosed with PTSD, bipolar disorder NOS vs. cyclothymic disorder and alcohol dependence. After 9/11 the veteran went into a downward spiral. He would sit in front of the television for hours and hours, very depressed. Before September 11th he had times when he would do perimeter checks and end up in the closet or under the bed. The appellant would also be awakened to find the veteran hitting the wall or hitting her. When he was admitted to inpatient care for the last time for alcohol and suicidality the treating professionals finally decided that it was time to treat the veteran for PTSD. The appellant stressed that the veteran's death was due to his illness, PTSD. In an April 2005 letter the appellant indicated that she received a phone call on March 17, 2005 from a T.M. who indicated that he served with the veteran aboard the Ouellet. T.M. remembered a fire on board a ship in their battle group in September 1990. A November 2006 printout of an information sheet pertaining to the USS White Plains indicates that the ship sustained a fire to her engine room on May 9, 1989. Six sailors were killed and five others were injured while the ship was operating about 100 miles east of Hong Kong in the South China Sea. The ship was towed to Subic Bay, Philippines for repairs. A November 2006 printout of an information sheet pertaining to the USS Ouellet indicates that the ship spent most of 1988 in restricted availability, made her ninth deployment in December 1988, returned to Pearl Harbor on May 26, 1989 and turned around in September 1989 for "Pacific Exercises 1989." It then returned to Pearl Harbor in November 1989 and remained in dry dock, refloating in February 1990. After extensive preparations and an exhaustive inspection cycle, the ship departed to Central America in August 1990 in support of law enforcement operations that included a detachment of Coast Guard personnel to act as legal policing forces. In search of drug smugglers the Ouellet recovered close to 1 ton of pure unprocessed cocaine jettisoned from an unknown vessel. In November 2006 the RO requested information from the U. S. Army and Joint Services Records Research Center (JSRCC) (formerly the Center for Unit Records Research (CURR)) regarding whether the veteran participated in the rescue crew to rescue victims of the USS Ouellet fire. In a July 2007 response, JSSRC indicated that it reviewed the pertinent command history from the USS Ouellet. On May 9, 1989 the ship was in company with the USS White Plains enroute to Pearl Harbor. The White Plains suffered a main space fire in the engineering space behind the number three boiler while conducting underway replenishment operations with the USS Sacramento. The USS Ouellet was the first ship to render assistance, dispatching both the gig and motor whaleboats filled with damage control equipment. The fire was extinguished in approximately two hours. Six crewmembers of the USS White Plains died and several suffered burns in the accident. The USS Ouellet and the USS Leftwich were detached from the battle group to provide escort and assistance to the USS White Plains as she was towed back to Subic Bay by the USNS Sioux. In a July 2007 medical opinion a VA psychiatrist found that the claims file contained abundant evidence of PTSD symptoms and clinical diagnoses of PTSD. The psychiatrist noted that documentation in the claims file including statements by the veteran's wife indicated that the major content of the veteran's painful recollections and nightmares arose out of participation in rescue efforts during the USS White Plains fire. He also noted that the veteran was heavily involved in the use of alcohol from his teenage years onward but also that he was subjected to substantial abuse and difficulty during his childhood. There was a distinct family history of alcoholism and it was clear that the veteran abused alcohol substantially before, during and after his military time. The examiner opined that if the shipboard fire incident was considered verified, a firm diagnosis was more likely than not correct in the veteran's case. Clinical records showed sufficient symptoms in the various DSM IV categories required for a PTSD diagnosis and the reported content of the veteran's nightmares, dreams and painful recollections centered on the fire incident and this had been noted by the veteran's wife and by treatment personnel. The psychiatrist further found that it was more likely than not hat PTSD was a contributory cause of the veteran's death. He noted that it was more likely than not that the veteran had long used alcohol as a means of coping with anxiety and psychic distress from his PTSD. When he had to abstain from such use prior to entering the PTSD program, he turned to the use of inhalants as an intoxicant and anxiety reliever and naïve in their use, overdosed fatally on them. Thus, the veteran was in effect self medicating his PTSD with the inhalants, which caused his death. Accordingly, the psychiatrist found that although the immediate cause of death was the inhaling of the toxic chemicals, a contributory cause was the veteran's PTSD, since the chemicals were being used to "self medicate" the PTSD. In a January 2007 letter the appellant indicated that one of the things that haunted the veteran was the shipboard fire. He had to help clean up dead bodies and one of these bodies was a friend from boot camp. The veteran had not mentioned the friend's name. Another thing was that he had lost a friend named [redacted] on a training mission. The veteran never mentioned [redacted] last name or where the mission was. The memories would haunt him and once every 6 weeks or so he would fall into a depression and ask why did he survive when others he knew had to die. III. Law and Regulations To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection may be established for disability due to disease or injury that was incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where VA determines that the veteran did not engage in combat, the veteran's lay testimony, by itself, as a matter of law, cannot be sufficient to establish the alleged stressor. Rather, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran's lay testimony concerning the noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Compensation shall not be paid if the claimed disability or death was the result of the person's own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2007). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a appellant's own alcohol or drug abuse. Moreover, § 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 the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See VAOPGPREC 2-97. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis As alluded to above, the veteran was only service connected for fracture, right great toe, fracture, left hand, fracture with nose deformity, hemorrhoids and eczema Thus, as he died from an inhalant overdose, none of these disabilities caused, or contributed to cause his death. The appellant essentially alleges, however, that the veteran's PTSD at least contributed to cause his death that the PTSD was related to service and thus should have been service connected. Regarding whether PTSD did at least contribute to cause the veteran's death the Board notes that Dr. T specifically found that the veteran's cause of death was due to the use of freon as a means of escaping his PTSD and that the July 2007 VA psychiatrist found that it was more likely than not that PTSD was a contributory cause of death. Thus, although it is clear that fluorocarbon poisoning was the immediate cause of death, the Board does find that it is reasonably established that the veteran's PTSD was a contributory cause, because the weight of the medical evidence indicates that the veteran inhaled the fluorocarbons to "self medicate" his PTSD. Because PTSD contributing to the veteran's death is established, the remaining question is whether the veteran's PTSD was related to service and thus should have been service connected. As mentioned above, service connection for PTSD requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304. In the instant case, the evidence of record does clearly establish a diagnosis of PTSD as the veteran was consistently diagnosed as having this condition from 1995 to the present. Additionally, the PTSD was definitely linked to alleged stressors in service including experiences in Panama, most notably an operation to bring Manuel Noriega to the U.S. and the experience of responding to the fire on the USS White Plains. None of these alleged stressor events, however, have been corroborated. Regarding the Panamanian operation, there is absolutely no evidence of record that the ship the veteran served on in and around Panama, the U.S.S. Ouellet, had any involvement in efforts to bring Manuel Noriega to the U.S. or that it had a specific role in the U.S. conflict with the Noriega government. Rather, the record shows that the Ouellet was involved with drug interdiction efforts in conjunction with the Coast Guard in and around Panama. As neither the appellant nor the veteran identified any specific stressor events associated with this mission, there was no way for any stressor corroboration efforts to be undertaken. Consequently, no stressor event related to the veteran's service in and around Panama has been verified. 38 C.F.R. § 3.304. Similarly, as neither the veteran nor the appellant identified any specific details regarding the death of "[redacted]" there was no way for the RO to even attempt to corroborate this death and it remains as an uncorroborated reported stressor. Id. Regarding the fire on the USS White Plans, the Board notes that the fire itself clearly has been corroborated as the command history from the USS Ouellet clearly shows that it took place and that six men were killed, as do other sources. The veteran's participation, however, in response to the fire has not been verified. Further, the veteran's account of his role in responding to the fire is not consistent with the command history. The veteran specifically indicated in his statement contained in the February 1995 medical record that he was part of the damage control team that responded to the fire and that it took 18 hours to contain or suppress the fire onboard the White Plains enough to get to the engine room. In contrast, the Command history indicated that the fire was actually extinguished in approximately two hours. The history also does not indicate that crewmembers from the Ouellet actually participated in firefighting aboard the White Plains and in the opening of the engine room. Thus, these records do not support the veteran's lay statement regarding this alleged stressor event, and the Board cannot consider this stressor to be corroborated. Id., Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Board has also considered whether service connection for PTSD could have been warranted on the basis that such disability was actually diagnosed or treated in service. There is no evidence of record, however, indicating that the veteran was treated or diagnosed with PTSD or other psychiatric disability during service. Instead, according to the record, the veteran was not diagnosed with PTSD until three years after service. Thus, as PTSD was not shown in service (and is not shown to be related to a verified in service stressor), service connection for PTSD was not warranted. 38 C.F.R. § 3.303, Hickson, 12 Vet. App. 247, 253 (1999). Further, although it is possible that the veteran's alcoholism (which arguably could also be considered a contributory cause of death) may have been aggravated by service, since alcoholism is considered willful misconduct, it is not subject to service connection. See 38 U.S.C.A. §§ 105, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2007). The Board has considered whether further development might be warranted to attempt to corroborate that the veteran participated in firefighting activities aboard the USS White Plains. Given, however, that the veteran's account of his activities aboard the White Plains is inconsistent with the actual command history the Board does not find the veteran's account credible. Also, the veteran's credibility is further called into question because he apparently reported that he had service in the Persian Gulf (which is not shown by the record) and that he participated in an operation to bring Manuel Noriega to the U.S., which is also not shown by the record. None of the documentation of record pertaining to the U.S.S. Ouellet, on which the veteran served from July 1988 to his separation in August 1992, shows that the ship was in the Persian Gulf while the veteran was aboard or that it was involved with an operation related to Manuel Noriega. Additionally, although the appellant affirmatively indicated that a fellow serviceman of the veteran remembered a fire taking place in 1990, there is no evidence of record indicating that the veteran alleged a stressor event pertaining to a 1990 fire; rather the record indicates that he only alleged involvement with one fire; the fire on the White Plains. Thus, VA was not required to attempt to corroborate the Ouellet's or the veteran's involvement with the 1990 fire. In short, given that the veteran's reports, including reports of stressor events, have not been found credible, VA does not have a further duty to attempt to corroborate them. As credible supporting evidence of the veteran's alleged stressor events in service has not been shown, the Board finds that the veteran was not entitled to service connection for PTSD. Thus, even though PTSD is found to have contributed to the veteran's death from Fluorocarbon poisoning, service connection for the cause of death is not warranted. The preponderance of the evidence is against this claim and it must be denied. ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs