Citation Nr: 1120132 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-21 476A ) 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: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970, with combat service in the Republic of Vietnam, and his decorations included the Combat Infantryman Badge. The Veteran died in July 2004 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. FINDINGS OF FACT 1. The Veteran served in combat in the Republic of Vietnam. 2. The Veteran died in July 2004, at age 55, due to or as a consequence of arteriosclerotic cardiovascular disease acute and recent cocaine ingestion. 3. At the time of death, service connection was in effect for posttraumatic stress disorder (PTSD), which was evaluated as 50 percent disabling. 4. The Veteran suffered from cocaine abuse that was related to his service-connected PTSD. 5. The Veteran's arteriosclerotic cardiovascular disease, a disability of service origin, together with his service-connected PTSD, caused his death. CONCLUSION OF LAW A service-connected disability contributed substantially and materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the Appellant's claim for service connection for the cause of the Veteran's death, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary in this decision. The Appellant contends that the Veteran's abuse of cocaine was a coping mechanism for his service-connected posttraumatic stress disorder (PTSD) and that this cocaine abuse ultimately led to his death. The Board also notes that the Veteran served in Vietnam and was diagnosed as having arteriosclerotic cardiovascular, a disease for which presumptive service connection is available for Vietnam Veterans. Dependency and indemnity compensation (DIC) is available to a surviving spouse who can establish that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312. 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). On the other hand, contributory cause of death is inherently one not related to the principal cause. In determining whether the 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 is a causal connection. 38 C.F.R. § 3.312(c). The Board again observes that the Appellant's claim centers around the notion that a drug overdose is the cause of the Veteran's death and that such death should be service-connected. Under 38 U.S.C. § 1110, "no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs." VA regulation defines the frequent use of drugs to the point of addiction as willful misconduct, but also notes that "where the use of drugs or addiction thereto results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3) (2010). The U.S. Court of Appeals for the Federal Circuit has also held that 38 U.S.C.A. § 1110 does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed.Cir.2001). Secondary service connection shall be awarded for disabilities that are "proximately due to or the result of a service connected disease or injury." 38 C.F.R. § 3.310(a). In this case, the Veteran served in Vietnam and VA has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the appellant. In this case, the Veteran was service connected during his life for posttraumatic stress disorder (PTSD). At the time of his death, he was receiving a 50 percent disability rating. He died in July 2004 and the death certificate notes the injury leading up to his death as "cocaine ingestion" and notes the cause of death as "arteriosclerotic cardiovascular disease complicated by recent cocaine ingestion." The Appellant contends that the Veteran's cocaine use was a coping mechanism for the service-connected PTSD. The evidence includes outpatient treatment records, two VA opinions, plus another opinion from the Veteran's VA treating physician. The record shows that the Veteran tested positive for cocaine use at least two times in the years prior to his ultimate overdose on the drug. In September 1995, the Veteran left a private inpatient treatment facility after testing positive for cocaine. He refused a retest and opted to leave the facility instead. The record shows that he again tested positive for the drug when he was in the same facility in December 1996. In addition, throughout the treatment record, alcohol use, as well as past marijuana use, is noted. In December 2004, the RO sought an opinion from a VA examiner as to the nature of the Veteran's cause of death. At that time, the 1995 and 1996 records were not a part of the claims folder. The VA examiner could only note the Veteran's past alcohol and marijuana use and concluded that he was "unable to find any evidence to support a service connected death." Because this opinion was rendered without the benefit of the complete record, it is of little probative value in this analysis. In June 2006, a VA clinical psychologist submitted a statement in support of the Appellant's claim. This particular psychologist had a working knowledge of the Veteran's history of mental illness due to his longtime treatment in her clinic at the VA Medical Center in New Orleans during his lifetime. She noted that during his life, the Veteran "struggled with chronic, debilitating PTSD." She also reported on the medical research that has discovered that some 80 percent of Veteran's diagnosed with PTSD also have "a lifetime substance abuse diagnosis." While this statement alone does not pertain to this Veteran in particular, the VA psychologist concluded based upon this medical research, as well as her personal knowledge of the Veteran and his history, that it is likely that the Veteran "used cocaine as self-medication for PTSD." The only other opinion of record is found in the brief December 2009 VA staff physician's report. That opinion reads in its entirety as follows: "I have reviewed the C-file and previous C&P exam reports. The Vet seems to have been diagnosed with PTSD sometime in the 1990's. The first and only mention of cocaine found in his records was as a secondary cause of death. Therefore, I must state that his cocaine overdosage did not result in his service connected PTSD. The rationale for this opinion is the fact that per records available his PTSD diagnosis preceded any known cocaine use." The opinion, however, fails to respond to the question because the examiner essentially opined that the cocaine use did not cause the PTSD, because the PTSD preexisted it. At no time during the course of this appeal has it been suggested that cocaine usage caused the Veteran's PTSD. Rather, it is contended that the service-connected PTSD essentially caused the cocaine usage that ultimately caused the Veteran's death. The December 2009 opinion is thus of no probative value. Thus, when examined as a whole, the only opinion with significant probative value is that of the Veteran's treating clinical psychologist who states that the Veteran's cocaine usage was likely a coping mechanism for his service-connected PTSD. The service-connected disability, therefore, is shown to have caused the drug usage that is noted on the death certificate as the injury that caused the Veteran's death. Further, the Veteran served in Vietnam and his arteriosclerotic cardiovascular disease, a disability presumed to be of service origin, contributed to cause his death. As such, service connection is warranted for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs