Citation Nr: 1104530 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 07-06 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1978 and died in May 2005. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for the cause of the Veteran's death. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010); 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in May 2005, and his official certificate of death indicates that his immediate cause of death was pancreatitis, due to or as a consequence of pneumonia, due to or as a consequence of esophageal cancer. 2. At the time of the Veteran's death, service connection was established for major depressive disorder, rated as 100 percent disabling, effective September 10, 2001. 3. The most probative evidence of record demonstrates that the Veteran's service-connected major depressive disorder caused or aggravated his alcoholism, and that his alcoholism contributed significantly to the development of his pancreatitis and esophageal cancer, causes of his death. CONCLUSION OF LAW A disability incurred in or aggravated by service caused or contributed substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1101, 1131, 1310 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant. Cause of Death In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death, that it combined to cause death, or 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)(1). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). According to the official certificate of death, the Veteran died on May [redacted], 2005. The immediate cause of death is listed as pancreatitis, due to or as a consequence of pneumonia, due to or as a consequence of esophageal cancer. At the time of the Veteran's death, service connection was established for major depressive disorder, rated as 100 percent disabling, effective from September 10, 2001. The appellant contends that the Veteran's uncontrolled service- connected major depressive disorder caused him to abuse alcohol as a means of coping, and that his alcoholism contributed to the development of his pancreatitis and esophageal cancer. The Board sought a medical advisory opinion from the Veteran's Health Administration (VHA) in November 2010 and the opinion was received in December 2010. Dr. T., subsequent to review of the claims file, noted that the Veteran reported alcohol use prior to enlistment and at the time of his discharge from service. She noted that the Veteran was involved in alcohol abuse concurrently with his depression and that it was difficult to know which condition was primary or secondary. She noted that while it was not clear whether the alcohol abuse or depression began first, it was clear that the Veteran reported minimal alcohol abuse after discharge from service and was productively employed until the time of his mother's death. Dr. T. opined that, based upon the Veteran's pre-existing history and acute onset of alcohol use and depression after the death of his mother, it seems that his most recent problems with alcohol are not related to service. She noted that medical literature supports the association between mental illness and alcohol use as means to treat symptoms of the same, and that co-morbid illnesses are not unusual. She also noted, however, that alcohol use can sometimes cause depressive symptoms independently of any other mental illness. She reported that it is very difficult to determine if the alcohol causes a person's depression or if a depressed person tries to self- medicate unless it is clear whether the depression or the alcoholism stared first. Dr. T. concluded that in the Veteran's case, his depressive symptoms were always temporally related to alcohol use and at least two examiners who personally interviewed the Veteran were not able to decipher which was the initial problem. In support of her claim, the appellant submitted a January 2011 statement from Dr. B. Dr. B., subsequent to review of the claims file, asserted that the Veteran entered service, fit for duty, and without any doctor-diagnosed illnesses. Dr. B. noted that the Veteran was service-connected for major depressive disorder, and asserted that the Veteran had feelings of helplessness and worthlessness and suicidal thoughts. He asserted that the Veteran had significant conflicts with his spouse concerning drug and alcohol use. He noted that the Veteran was admitted for treatment in January 2004 for alcoholic pancreatitis. Dr. B. asserted that it is well known that patients with major depression often use alcohol to self-medicate with the goal of soothing one's pain and suffering. He reported that it is equally well-known in medical literature and is a general medical principle that alcohol use leads to pancreatitis and esophageal cancer, both of which can lead to death. Dr. B. opined that the Veteran's major depressive disorder caused him to consume too much alcohol which in turn caused him to develop pancreatitis and esophageal cancer, which in turn caused his demise. Dr. B. noted that it is clear that pancreatitis was not the only cause of the Veteran's demise, but opined that the Veteran would have lived longer had he not had his pancreatitis and esophageal cancer. Dr. B. posited, in other words, that the Veteran's alcohol-induced pancreatic and esophageal cancer both together and independently contributed significantly to his demise. Dr. B. reasoned that medical literature documents a significant relationship between psychiatric disease and addictive behavior, and the gene-by-environment interaction supports a significant causal effect of environment on the individual, which leads to addictive behavior. Dr. B. concluded that such was the case with the Veteran. Dr. B. noted that VA examiners acknowledged that the Veteran's substance abuse lead to his pancreatitis and esophageal cancer, and asserted that such abuse was primarily related to the death of his mother a few years prior to his own death. Dr. B. opined that while there is no doubt that the death of the Veteran's mother was an additional stressor, if the Veteran had not had his service-induced depression he would have likely had the residual energy to deal with the additional stressor of his mother's death. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The Board accords greater probative value to the January 2011 private opinion. While Dr. T. asserted that it was very difficult to determine whether the Veteran's alcoholism or depressive symptoms began first, she asserted that his depressive symptoms were always temporally related to alcohol use and at least two examiners who personally interviewed the Veteran were not able to decipher which was the initial problem. Further, Dr. T. did not discuss the relationship between the Veteran's alcoholism and the causes of his death, including pancreatitis and esophageal cancer. Finally, Dr. T. provided a speculative opinion. The Board notes here that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The opinion, expressed as "it seems" that the Veteran's most recent problems with alcohol are not related to service, is too speculative. Thus, the Board finds that the opinion rendered by Dr. B. that the Veteran's service-connected major depressive disorder caused the Veteran to consume too much alcohol which caused him to develop pancreatitis and esophageal cancer, which in turn caused his death, to be the most probative opinion of record. Dr. B. supported his conclusions with rationale and provided the Board a medical basis upon which to grant the claims. See Winsett, supra. For the appellant to be successful in her claim, she needs to show only that it is at least as likely as not that the Veteran's service-connected major depressive disorder caused or aggravated his alcoholism, which resulted in pancreatitis and esophageal cancer, which caused his death. See 38 U.S.C.A. § 5107 (West 2002). Here, the Board finds that standard has been met. (CONTINUED ON THE NEXT PAGE) Under the circumstances, and with resolution of reasonable doubt in the appellant's favor, the Board concludes that service connection for the cause of the Veteran's death is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death, subject to the laws and regulations governing monetary awards. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs