Citation Nr: 1125487 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 08-08 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, two daughters, and son-in-law ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1970. The Veteran died in May 2004. The appellant is seeking entitlement to benefits as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2011, the appellant testified before the undersigned. A transcript from the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in May 2004. According to the official certificate of death, the immediate cause of death is listed as a hepatic encephalopathy due to or as a consequence of cirrhosis of the liver, Hepatitis B. 2. At the time of the Veteran's death, service connection was established for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; shell fragment wound, muscle group XIV, rated as 40 percent disabling; atherosclerotic coronary artery disease, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; a scar of the left abdominal wall due to a shell fragment wound, rated as 10 percent disabling; a shell fragment wound of the abdominal wall, rated as 10 percent disabling; and a scar of right thigh, rated as 10 percent disabling. 3. The competent and probative evidence of record establishes that the Veteran's chronic alcoholism contributed significantly to the development of his cirrhosis of the liver, Hepatitis B, the underlying cause of death. 4. The competent and probative evidence of record is in approximate balance as to whether the Veteran's service-connected PTSD caused or aggravated his chronic alcoholism. CONCLUSION OF LAW Giving the benefit of the doubt to the appellant, the Board concludes that service-connected PTSD caused or aggravated the Veteran's chronic alcoholism, which contributed significantly to the development of cirrhosis of the liver, Hepatitis B, the underlying cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the fully favorable decision, discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the appellant is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Law and Regulations 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). Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3). The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service- connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Discussion According to the official certificate of death, the Veteran died in May 2004. The immediate cause of death is listed as a hepatic encephalopathy due to, or as a consequence of cirrhosis of the liver, Hepatitis B. At the time of the Veteran's death, service connection was established for PTSD, rated as 50 percent disabling; shell fragment wound, muscle group XIV, rated as 40 percent disabling; atherosclerotic coronary artery disease, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; a scar of the left abdominal wall due to a shell fragment wound, rated as 10 percent disabling; shell fragment wound of the abdominal wall, rated as 10 percent disabling; and a scar of right thigh, rated as 10 percent disabling. The appellant contends that the Veteran's service-connected PTSD caused him to abuse alcohol as a means of coping with his feelings from serving in Vietnam, and his alcoholism contributed to the development of his cirrhosis of the liver, which ultimately caused his death. In support of her claim, the appellant submitted several treatment records and statements from Dr. E.R., the physician who treated the Veteran several times in the past few months until his death in May 2004. A November 2003 record notes a history of cirrhosis of the liver due to alcohol, as well as a diagnosis of liver cirrhosis on the basis of alcohol. A March 2004 record demonstrates a diagnosis of end state liver disease. In a May 2004 statement, Dr. E.R. stated that in the past few months, the Veteran was seen with increasing ascites, indicating that he has needed large volume paracentesis again and again; specifically, Dr. E.R. noted the Veteran's significant history of cirrhosis of the liver based on alcohol. In a late May 2004 statement, Dr. E.R. reported that the Veteran, who was under his care, died in the hospital with encephalopathy and liver failure and indicated that this note should be read in addition to the certificate diagnosis. Dr. E.R. further stated that the Veteran had a diagnosis of Hepatitis B which was positive for core antibody and surface antibody both and his cirrhosis of the liver and hepatic encephalopathy all resulted from the Hepatitis B infection. The Board considers the aforementioned treatment records and medical opinion of Dr. E.R. to be competent medical evidence as to the cause of the Veteran's cirrhosis of the liver. In October 2007, a VA medical opinion was requested; specifically, the doctor was asked to opine as to whether it is at least as likely as not that the Veteran's alcohol abuse was due to his PTSD, which resulted in his cirrhosis of the liver, causing his death. Upon review of the Veteran's claims file, the doctor opined that the Veteran's liver cirrhosis is most likely due to secondary alcohol use. The doctor noted that the Veteran had end stage liver disease with severe ascites, hepatic encephalopathy, and had recurrent paracentesis; thus, the cause of death is due to hepatic cirrhosis. The doctor concluded that the issue of whether the Veteran's PTSD caused him to drink excessively was deferred to the psychiatric evaluation. Based upon the foregoing, the Board finds that, while alcoholism is not specifically listed on the Veteran's death certificate as a condition contributing to his death, the preponderance of the competent medical evidence of record establishes that the Veteran's long-standing history of alcoholism significantly contributed to the development of his cirrhosis of the liver. As such, the remaining issue to be resolved is whether there is competent evidence of record which establishes that the there is a causal connection between the Veteran's service-connected PTSD and alcoholism. As an initial matter, the Board notes that the medical opinions rendered by Dr. E.R. in 2003 and 2004 do not address the relationship between the Veteran's service-connected PTSD and alcoholism. Instead, Dr. E.R. addressed the relationship between the Veteran's alcoholism and cirrhosis of liver, which as shown above, has been conceded. The evidentiary record contains conflicting evidence as to whether the Veteran's PTSD is causally related to his alcoholism. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In June 2005, T.L., Ph.D. (a licensed psychologist) submitted a letter on behalf of the appellant. T.L. reported that he evaluated and treated the Veteran several years ago, indicating that the Veteran was a member of his Vietnam veterans support group from its inception until the last few months of his life. T.L. reported that the Veteran had severe PTSD. He further reported that there was a rule in the group that veterans were not to drink before or after group; however, on several occasions, a close friend of the Veteran's, who was also in the group, expressed concern that the Veteran was drinking at times before group and usually after group. T.L. reported that he spoke to the Veteran about this but thinks it is likely that this pattern continued. T.L. stated, that in his judgment, the Veteran's drinking was directly related to his PTSD; specifically, he had a great deal of guilt about Vietnam and had many intrusive thoughts and memories as well as nightmares and sleep disturbance. T.L. stated that drinking was the only way that Veteran got some relief from these symptoms and could forget about the conflicts he had on the inside. T.L. further stated that the Veteran had an attraction to combat, as well as revulsion from what happened in Vietnam, and was very conflicted about that and unable to resolve the conflict. T.L. concluded that it is his understanding that the Veteran's death was due to liver failure and cirrhosis and opined that in his clinical judgment, the Veteran's drinking was directly related to his PTSD, and his PTSD therefore is directly connected with the cause of his death. In June 2005, Dr. J.D. submitted a letter on behalf of the appellant. Dr. J.D. reported that the Veteran drank heavily in order to deal with his PTSD, which resulted in liver failure, as well as additional problems with insulin dependent diabetes, hypertension, COPD, and coronary disease. In December 2007, a second VA medical opinion was requested; specifically, the psychologist was asked to opine as to whether it was at least as likely as not that the Veteran's alcohol abuse was due to his PTSD, which resulted in his cirrhosis of the liver, causing his death. Upon review of the Veteran's claims file, the psychologist noted T.L.'s opinion, Dr. J.D.'s opinion, and the October 2007 VA doctor's opinion, and opined, that based upon his experience in the diagnosis and treatment of PTSD, it is clear that the Veteran's alcohol abuse was not caused by or a result of his PTSD. The psychologist indicated that alcohol abuse is not recognized, nor listed as a symptom of PTSD in the DSM-IV. In fact, alcohol abuse and dependence is a diagnosis in and of itself with a separate category diagnostic symptoms. The psychologist indicated that some patients with any diagnosis, including PTSD, may choose to drink alcohol and some of those patients may drink abusively; however, mood and anxiety disorders most certainly do not cause a patient to drink excessively, nor is alcohol consumption noted as a symptom of these disorders. In fact, many patients with anxiety disorders find that additional sleep disturbance, anxiety, and mood swings associated with alcohol abuse to be intolerable and choose to substantially limit their alcohol intake. Subsequent to the December 2007 VA medical opinion, in March 2008, T.L. submitted a letter in response to the psychologist's opinion on behalf of the appellant. In his letter, T.L. stated that he was writing regarding the Veteran, who he treated for a number of years and who died several years ago due to cirrhosis of the liver. T.L. reported that the December 2007 VA psychologist indicated that alcohol abuse is not recognized as a symptom of PTSD and that mood and anxiety disorders do not cause a patient to drink excessively. In this regard, T.L. noted that the Department of Veterans Affairs National Center for PTSD fact sheet indicates that 60 to 70 percent of veterans seeking PTSD treatment have alcohol use disorders. T.L. noted that the literature also indicates that being diagnosed with PTSD increases the risk of developing an alcohol abuse disorder. T.L. opined, while alcohol abuse and dependence is not a symptom of PTSD, it is often an attempt to cope with the symptoms of PTSD. Therefore, there is a clear connection in many cases between PTSD and alcohol abuse and dependence. T.L. further stated that while there are benefits to an independent medical examiner's opinion, that benefit is only present if the independent medical examiner is objective and has not prejudged. T.L. noted that the December 2007 psychologist that reviewed the Veteran's claims file stated that there can be no link between alcohol abuse and PTSD and that drinking is a personal choice for someone with PTSD; this is in contradiction with the VA center for PTSD fact sheet. Therefore, it did not appear that the psychologist had made an objective evaluation. In addition, the psychologist did not, in reviewing the claims file, list any specific reasons that he believed the Veteran did not have a link between alcohol dependence and PTSD, just a general belief that the can be no such link. T.L. concluded that, as stated in a previous letter, the Veteran was unusually tormented mentally and emotionally, even for a combat veteran with PTSD, by survivor guilt and feeling that he had not done enough in Vietnam. Drinking was one way he tried to blunt these unbearable feelings. In this case, the opinions from T.L., as well as the VA psychologist's opinion, are of high probative value. T.L.'s opinions were based upon a period of detailed observation of the Veteran and his behavioral patterns, and T.L. certainly was in a position to observe the effect of PTSD on the Veteran's alcohol use. The VA psychologist's opinion was based upon a full and complete medical record. Both opinions are supported by a detailed rationale. While both individuals' opinions are conflicting, T.L's opinions are shown to be of equal probative value to that of the December 2007 VA psychologist because of the sound basis cited for the opinions. VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, after resolving all doubt in favor of the appellant, service connection for the cause of the Veteran's death is warranted. The claim is granted in full. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs