Citation Nr: 0810927 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-24 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from November 1958 to September 1962 with the U.S. Coast Guard and from May 1967 to November 1974 with the U.S. Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal was originally before the Board in January 2007 as an attempt to reopen a claim which was subject to a prior final denial. In January 2007, the Board determined that new and material evidence had been received to reopen the claim but further determined that additional evidentiary development was required prior to de novo adjudication of the claim. The issue on appeal was therefore remanded back to the RO for the evidentiary development. FINDINGS OF FACT 1. At the time of the veteran's death in November 1986, service connection was in effect for schizophrenia evaluated as 100 percent disabling, seborrheic eczema evaluated as 10 percent disabling, tinnitus evaluated as 10 percent disabling and hearing loss and hepatocellular disease both evaluated as non-compensably disabling. 2. The Certificate of Death reflects that the veteran died at the age of 46 in November 1986. The immediate cause of death was liver failure with gastrointestinal bleeding which was due to or a consequence of alcoholism. 3. Liver failure with gastrointestinal bleeding were was not manifest during service nor within one year of separation. 4. None of the veteran's service-connected disabilities were the immediate or underlying cause of the veteran's death; none of the service-connected disabilities were etiologically related to the cause of death; the veteran's service- connected disabilities did not contribute substantially or materially to cause the veteran's death and they was not of such severity that they resulted in debilitating effects and a general impairment of health to an extent that rendered the veteran materially less capable of resisting the effects of other disease causing death. 5. The veteran's alcoholism was not secondary to a service- connected disability. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303. 3.304, 3.307, 3.309, 3.312 (2007). 2. Alcoholism was not, as a matter of law, incurred in or aggravated by service. 38 U.S.C.A. §§ 105, 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.301, 3.303, 3.310(a) (2007); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the appellant's claim for service connection for the veteran's cause of death was received in April 2002. Thereafter, she was notified of the provisions of the VCAA by the RO in correspondence dated in June 2003 and April 2007. These letters notified the appellant of VA's responsibilities in obtaining information to assist her in completing her claim, identified the appellant's duties in obtaining information and evidence to substantiate her claim, and requested that the appellant send in any evidence in her possession that would support her claim. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in August 2007. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 07-7130 (Fed. Cir. September 17, 2007). In a claim for Disability and Indemnity Compensation (DIC) benefits, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). To the extent that the VCAA notice is not fully compliant with Hupp, any such error is presumed to be prejudicial. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir 2007). However, under the circumstances of this case, any such error does not require a remand because the error "did not affect the essential fairness of the adjudication." Id. Specifically, the record reflects that "any defect was cured by actual knowledge on the part of the claimant," because the statements of the appellant and her representative throughout the appeal reflect that the appellant understood all of the elements of VCAA notification. Id. Statements of the appellant and her representative clearly indicate that the appellant is aware that service connection was in effect for schizophrenia at the time of the veteran's death and arguments were advanced for a grant of service connection based on the alleged interplay of the service-connected schizophrenia and alcoholism. An argument was also advanced for a grant of the claim based on the presence of non-service-connected PTSD. These statements demonstrate to the Board that the appellant and her representative knew of the evidence and information required to substantiate a claim for dependency and indemnity compensation for conditions for which service connection has been granted and for conditions for which service connection has not been granted. The appellant has been made aware of the information and evidence necessary to substantiate her claim and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist her in obtaining evidence necessary to substantiate her claim during the course of this appeal. All medical records identified by the appellant have been obtained to the extent possible. Attempts were made to obtain a private physician's medical records but a response was received that these records had been discarded. The appellant was provided with a VA medical opinion in July 2005. Furthermore, the appellant has not identified any additional, relevant evidence that has not otherwise been requested or obtained. The appellant has been notified of the evidence and information necessary to substantiate her claim, and she has been notified of VA's efforts to assist her. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating her claim. Analysis The veteran died in November 1986. The Certificate of Death indicated that the immediate cause of death was liver failure with gastrointestinal bleeding with an interval of months between onset and death, due to or as a consequence of alcoholism which had been present for years. At the time of the veteran's death, service connection was in effect for schizophrenia evaluated as 100 percent disabling, seborrheic eczema evaluated as 10 percent disabling, tinnitus evaluated as 10 percent disabling and hearing loss and hepatocellular disease both evaluated as non-compensably disabling. In April 2002, the appellant argued that the veteran had PTSD as well as schizophrenia and that he used alcohol as a way to self-medicate. She alleged that his drinking began while the veteran was in Vietnam and that he had alcoholic liver disease while on active duty. She claimed that the veteran's death was secondary to his service-connected psychiatric disorder. In order to establish service connection for the cause of the veteran's death, there must be a service-connected disability that was the principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death, that is, when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. The law and regulations provide that 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; 38 C.F.R. §§ 3.1(n), 3.301(c). 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 also VAOPGPREC 2- 97. However, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), it was held that a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. The evidence which supports the appellant's claim consists of letters from a private physician, lay statements and the appellant's testimony before the undersigned. The appellant testified before the undersigned in July 2006 that the veteran had always been nervous from the time they met. She reported that the veteran was not a heavy drinker when they first met but his drinking increased due to the pain he was in. The appellant opined that the veteran drank to self-medicate. They married in 1978. An August 2004 lay statement from the appellant and an August 2004 lay statement from a friend of the appellant attest to the veteran's use of alcohol during his lifetime as well as to mental health problems the veteran had. With regard to the appellant's lay statements, the lay statement from her friend and the appellant's testimony before the undersigned, the Board finds that this does not constitute competent evidence which links the cause of the veteran's death to his active duty service or to any service- connected disability. The appellant and her friend are lay persons. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Their opinion as to the etiology of the cause of the veteran's death is without probative value. In November 2002, A. W. Chaney, Jr., M.D., wrote that the veteran was a patient of the physician in the 1980's. The physician noted that the veteran had multiple medical illnesses including gastrointestinal bleeding, liver disease, alcoholism, skin rashes and multiple other diseases. Dr. Chaney opined that the veteran's illnesses were service connected and that the veteran died as a result of multiple service-connected disabilities. In April 2004, Dr. Chaney wrote that the veteran was well known to the physician in the late 1970's and 1980's. The veteran had a number of medical illnesses including liver disease, gastrointestinal bleeding secondary to liver disease, alcoholism, and dermatitis among other ailments. The physician reported that he had reviewed all the VA medical records which were made available to him. Dr. Chaney noted that the veteran was treated in service for alcoholism, liver disease, anxiety or depression, dermatitis and multiple like disorders. The physician also noted that the veteran had multiple hospitalizations in the late 1970's for the effects of alcoholism and psychiatric stress disorders. The physician noted that there was mention of schizophrenia and anxiety in the military records and he felt the veteran's psychiatric condition was consistent with PTSD. Dr. Chaney diagnosed PTSD, psychoneurosis, alcoholism, hepatic failure disease, gastrointestinal bleeding secondary to liver disease, dermatitis and possible Agent Orange exposure. The physician concluded by writing that the above conditions "can indeed be considered service connected disabilities" and that the surviving spouse should be given due consideration for a widow's pension. In April 2007, Dr. Chaney wrote that he had submitted a number of letters pertaining to the veteran over the years and that he had nothing more to add. He noted that all the veteran's medical records had been discarded. The Board finds that Dr. Chaney's letters do not provide competent evidence of a link between the cause of the veteran's death and his active duty service or to a service- connected disability. Significantly, the opinions do not contain reasons and bases supporting the conclusion that a causal relationship exists between the cause of the veteran's death and his military service or a service-connected disability. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. The physician did not cite to any clinical evidence to support his conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."]. Dr. Chaney did not provide any reasons or bases for why he determined that some or all of the veteran's service-connected disabilities were the cause of his death. He merely reiterated the veteran's medical history and provided a bare conclusion. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Furthermore, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). There is competent evidence of record which indicates that the cause of the veteran's death was not due to a service- connected disability or to the veteran's active duty service. In order to help substantiate the appellant's claim, VA arranged for the claims file to be reviewed by a suitably qualified health care professional in order to determine if the veteran's service-connected alcoholism was linked to his schizophrenia and to determine if the service-connected hepatocellular disease was linked in any way to the liver failure with gastrointestinal bleeding noted on the death certificate. In July 2007, a VA physician wrote that she had reviewed the claims file including the letters from the private physician. She noted that the service medical records documented hospitalization for alcohol abuse in 1973 during which time a liver biopsy revealed fatty changes and further documented that the veteran reported he had been drinking since the age of 10. Chronic alcoholism was diagnosed at that time. The VA physician noted that the veteran was advised to stop drinking and was "detoxed" during the hospitalization but the veteran continued to drink thereafter and was hospitalized again in June 1974 with alcohol intoxication. The VA physician opined that there was no evidence to show that the veteran's death was related to his military service. The examiner found that, while it was true that alcoholism was documented in the service medical records, there was also documentation indicating that the alcoholism started long before the veteran joined the military. The examiner noted that the veteran was diagnosed with hepatocellular disease and a fatty liver while on active duty but the fatty liver was not the cause of the veteran's eventual liver failure and gastrointestinal bleed which caused the death. The examiner opined that the liver failure was the result of persistent alcohol abuse that continued after the veteran left the military. The VA examiner found that Dr. Chaney's diagnosis of PTSD could not be documented in the medical records. The VA physician opined that it was not likely that the veteran's service-connected schizophrenia led to his alcoholism given the fact that the veteran developed alcohol dependency prior to military service. The physician also opined that it was not likely that the veteran's service-connected hepatocellular disease (which was fatty liver) was the cause of the veteran's liver failure with gastrointestinal bleeding. The Board finds that significant probative value should be accorded the report of the July 2007 VA examination. The examiner had access and had reviewed all the evidence in the claims file including Dr. Chaney's letters. The examiner affirmatively determined that there was no link between the service-connected schizophrenia and the veteran's alcoholism nor was there any link between the service-connected hepatocellular disease and the cause of the veteran's death. The examiner determined that the appellant died as a result of long standing alcohol abuse which existed prior to the veteran's active duty service. She cited to annotations in the claims file documenting the existence of alcoholism prior to active duty. The Board finds that the probative value of the report of the July 2007 VA examination is to be accorded more weight than the three letters produced by Dr. Chaney. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Dr. Chaney did not provide any reasons or bases for his opinions linking the cause of the veteran's death to his active duty service or a service-connected disability. In contrast to that is the report of the July 2007 VA examination wherein the examiner cites to annotations in the medical records which support her finding that the veteran died as a result of alcohol abuse which began prior to his active duty service. The appellant has argued that the cause of the veteran's death was due to his use of alcohol to self-medicate himself as a result of his service-connected schizophrenia. The appellant is not competent to provide this evidence based on her own testimony and allegations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is no competent evidence of record which indicates that the veteran abused alcohol as a result of his service-connected schizophrenia. No health care professional has provided an opinion linking the veteran's abuse of alcohol to schizophrenia. There is competent evidence of record which indicates that there is no such link. The examiner who prepared the July 2007 VA examination report affirmatively opined that there was no such link. Service connection is not warranted for alcoholism as secondary to a service- connected disability. The Board notes that the veteran was diagnosed with alcoholism while on active duty. As indicated above, however, service connection cannot be granted for alcoholism on a direct basis as it is precluded by law. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to service connection for the cause of the veteran's death. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs