Citation Nr: 1047146 Decision Date: 12/17/10 Archive Date: 12/22/10 DOCKET NO. 09-25 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joel Ban, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to December 1987, and died in December 2008. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (RO). The Board previously denied the appellant's claim for service connection for cause of death and entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318 in a decision dated in January 2010. Thereafter, following the appellant's timely appeal of this decision to the United States Court of Appeals for Veterans Claims (Court), a June 2010 Joint Motion for Partial Remand (Joint Motion), vacated the Board's decision to the extent it denied service connection for cause of death, and remanded the claim for further action based on the instructions in the Joint Motion. While the appellant's attorney has recently submitted additional pertinent evidence without waiver of the RO's initial consideration of this evidence, as a result of the Board's decision to grant the benefit sought on appeal, the Board finds that further action with respect to this matter is not necessary. The Board similarly finds that the appellant's request for another hearing before the Board need not be addressed, especially since she was also afforded such a hearing before the undersigned in October 2009. FINDINGS OF FACT 1. The record reflects that the Veteran died in December 2008, at the age of 43; the death certificate noted that the cause was pending investigation. The subsequent autopsy ultimately concluded that the Veteran's immediate cause of death was methadone intoxication, and that the manner of death could not be determined. 2. At the time of the Veteran's death, service connection was in effect for bronchial asthma (evaluated as 60 percent disabling); right palm scar with nerve involvement (evaluated as 50 percent disabling); and residuals of left inguinal hernia (noncompensably evaluated). 3. While there is an opinion from a VA examiner that indicates that service-connected asthma did not contribute to the cause of the Veteran's death, a private examiner has provided an opinion that supports such a relationship. 4. After resolving all doubt in the appellant's favor, the medical evidence is sufficient to establish that the Veteran's service-connected asthma contributed to cause the Veteran's death. CONCLUSION OF LAW A disease of service origin caused the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.102, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a result of the Board's decision to grant entitlement to service connection for cause of the Veteran's death, any failure on the part of VA to notify and/or develop the claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010) (VCAA) cannot be considered prejudicial to the appellant. The Board will therefore proceed to a review of the claim on the merits. In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c). At the time of the Veteran's death, service connection was in effect for bronchial asthma (evaluated as 60 percent disabling); right palm scar with nerve involvement (evaluated as 50 percent disabling); and residuals of left inguinal hernia (noncompensably evaluated). The appellant asserts that the Veteran's death was the result of his service-connected disorders. Specifically, she asserts that his service-connected disorders resulted in significant chronic pain such that treatment through pain medications, to include the fatal methadone, was required. Although she admits that the Veteran obtained the methadone from a non-medical source, she insists that because the pain resulting from the Veteran's service-connected disorders was so severe, and that VA denied him access to pain management and medications, he was forced to utilize other sources for medications to treat his pain. The record reflects that the Veteran died in December 2008, at the age of 43; the death certificate noted that the cause was pending investigation. The subsequent autopsy ultimately concluded that the Veteran's immediate cause of death was methadone intoxication, and that the manner of death could not be determined. The opinion indicates that the Veteran "died following the ingestion of an excessive amount of methadone." The autopsy also reflects that other conditions at death, caused by the methadone overdose, included pulmonary edema, heart biventricular dilation, and focal aspiration pneumonia. The appellant's depiction of the day of the Veteran's death essentially reflects that the Veteran's friend had visited their house, and had in his possession multiple methadone pills; the Veteran decided to take at least two of his friend's pills in an effort to treat his chronic pain, and the appellant later found the Veteran deceased. In the months leading to his death, VA outpatient treatment records reflect that the Veteran had significant trouble with chronic pain, and asked in May 2008 to have Tramadol, a painkiller, reinstated. In July 2008, a mental health professional made a request to the Veteran's health care team for extremely closely-monitored pain management. Later that month, the Veteran's primary care physician declined, noting the Veteran's documented inability to stay away from amphetamines except while incarcerated. She cited his relapse to methamphetamine addiction within a week of leaving a substance abuse program in May 2008, and his three previously-broken controlled substance agreements with VA. In October 2008, the Veteran reported that he had attempted to enroll in an inpatient program to rid himself of drug addiction, but that he had been asked to leave because he was found with undeclared psychiatric medications. In November 2008, the pain clinic director noted that the Veteran's urinalyses had tested negative for drugs, to include marijuana, since October 2008, but that it was too soon from his initial abstinence from drugs to welcome him back to the pain clinic. Thus, enrollment in the pain clinic would be reconsidered when the Veteran had been drug- free for a longer period. Finally, a December 2008 VA outpatient treatment record, dated three days prior to the Veteran's death, reflects that he visited the VA pharmacy after close of business and demanded that his prescription for Tramadol be refilled. The pharmacy director refused because he had filled the prescription too recently, and was not due for a refill until early January 2009. The record indicates that the Veteran became argumentative at this refusal. As noted, he allegedly took his friend's methadone pills three days later, and consequently died. In a VA respiratory examination report dated in June 2009, a VA examiner noted the Veteran's history of asthma, but referenced the most recent chest x-ray as having been normal, and the record of his last substantive VA outpatient visit showing the Veteran denied being troubled by his asthma symptoms. The examiner also noted the Veteran's history of broken controlled substance contracts with VA in 2004, 2007, and 2008, and the December 2008 visit, days before his death, in which he demanded an early refill of his Tramadol. However, the examiner's review of the Veteran's VA treatment history revealed that he had never been prescribed methadone by VA medical professionals; although the dentistry department gave him Lortab for pain related to dental work, and that VA would not give him methadone or any other opiates for his service-connected disorders because of prior pain contract violations. Because the Veteran was never prescribed methadone by VA, the examiner concluded that his service- connected disorders, by way of treatment he received from VA for same, did not hasten his death or contribute to his methadone intoxication. As to the question of respiratory failure, the examiner found that the respiratory distress exhibited at the time of death was readily explainable by the methadone intoxication and that therefore, the Veteran's respiratory failure was not at least as likely as not related to his service- connected asthma. In a private medical report dated in September 2010, Dr. Newhall initially noted his review of the Veteran's claims file and acknowledgement of the fact that medical treatment for chronic pain had not been prescribed for the Veteran by VA. However, Dr. Newhall went on to state that the Veteran's chronic pain was clearly a consequence of multiple injuries during his military service with the added exacerbation of pain as a consequence of apparently inadequate treatment he received at VA, noting that when the Veteran could not receive treatment of chronic pain through VA, he sought relief by taking methadone. Dr. Newhall further commented that it appeared from the autopsy description that the Veteran's death was due to acutely exacerbated respiratory insufficiency, and that the Veteran's respiratory insufficiency was likely a consequence of his asthma (signified by the presence of foamy macrophages) combined with the methadone intoxication. Dr. Newhall reiterated that had the Veteran received adequate pain management and treatment for his chronic pain through VA, he likely would be alive today, and that this was particularly true for someone like the Veteran, who required especially careful treatment owing to the presence of underlying respiratory insufficiency. Dr. Newhall concluded that the Veteran's use of methadone was his way of controlling the chronic pain of injuries received in the service or at VA during treatment. As was noted above, the appellant contends that the Veteran's death resulted from his self-treatment with methadone for service-connected disability and/or his service-connected asthma. In this regard, the Board recognizes that it was clearly the opinion of the June 2009 VA examiner that methadone intoxication was not related to the treatment for service-connected disability as it had not been prescribed by VA to treat the Veteran's chronic orthopedic pain (and would not have been prescribed given the Veteran's history of non-compliance with his VA medication contracts), and that the respiratory distress that was exhibited at the time of death was readily explained by the Veteran's methadone intoxication. However, after a review of the Veteran's claims folder, Dr. Newhall concluded that the Veteran's use of methadone was his way of controlling the chronic pain of injuries received in the service, and while Dr. Newhall agreed that it appeared from the autopsy description that the Veteran's death was due to acutely exacerbated respiratory insufficiency, Dr. Newhall believed that the Veteran's respiratory insufficiency was likely a consequence of his asthma (signified by the presence of foamy macrophages) combined with the methadone intoxication. Therefore, although the Board notes, as did the parties to the Joint Motion, that the VA opinion inadequately addressed the issue of whether the use of methadone for the treatment of service-connected disability contributed to the cause of the Veteran's death, and that Dr. Newhall does not explain how VA's pain management program was inadequate and thereby led to the Veteran's need to use methadone to treat pain associated with his service-connected disabilities, the record now reveals two contradictory opinions as to whether the Veteran's service-connected asthma contributed to the Veteran's death, neither of which is found to be more persuasive than the other. Plainly put, the June 2009 VA examiner determined that the respiratory distress at the time of the Veteran's death could be fully explained by the effects of methadone intoxication whereas the September 2010 private examiner concluded that this distress was likely a consequence of his asthma and methadone intoxication as signified by the presence of foamy macrophages in the Veteran's lungs (as was noted in the autopsy report). Therefore, and based on this record, the Board is unable to conclude that the VA examiner's opinion is any more persuasive than the opinion of Dr. Newhall. As was noted above, in determining whether a service-connected disability contributed to death, such contribution can be demonstrated by a showing that the disability combined to cause death or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Thus, as the Board does not find that the opinion of the VA examiner is any more persuasive and probative than the opinion of Dr. Newhall, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's service-connected asthma contributed to the cause of the Veteran's death, and that service connection for the cause of the Veteran's death is therefore warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs