Citation Nr: 1314536 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 05-39 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1969 to October 1985. He died in January 1990. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), declined to reopen a previously denied claim of entitlement to service connection for the cause of the Veteran's death. In November 2008, the Board remanded the petition to reopen the previously denied claim for entitlement to service connection for the cause of the Veteran's death as well as the claim for entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1151 for the Veteran's death (re-characterized by the Board in the May 2011 determination), in order to afford the appellant an opportunity to testify before a member of the Board. The appellant and her son testified before the undersigned Acting Veterans Law Judge during a Travel Board hearing held at the RO in February 2011. The appellant was provided an opportunity to set forth her contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A transcript of the proceeding has been associated with the claims file. In May 2011, the Board reopened the previously denied claim of entitlement to service connection for the cause of the Veteran's death, and remanded the underlying matter along with the claim of entitlement to compensation under the provision of 38 U.S.C.A. § 1151 for the Veteran's death for additional development. The Board instructed the RO (via the Appeals Management Center (AMC)) to obtain a VA medical opinion that addressed the etiology of the Veteran's death. In a July 2012 decision, following development of the § 1151 claim, the Board granted the claim of entitlement to compensation under § 1151 for the Veteran's death. Also, at that time, the Board remanded the issue of entitlement to service connection for the cause of the Veteran's death so that the AMC could issue a supplemental statement of the case (SSOC) on the matter. Subsequently, the AMC issued a SSOC on the matter in July 2012. As the claims folder shows that the above actions have been preformed, no further action is required in compliance with the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board emphasizes that the claim of entitlement to service connection for cause of death was not rendered moot by the July 2012 allowance of benefits under 38 U.S.C.A. § 1151, as the appellant could possibly receive additional benefits that were not otherwise be available. See Mintz v. Brown, 6 Vet.App. 277 (1994). Based on the foregoing, the appellant's claim of entitlement to service connection for the cause of the Veteran's death was still active and was not rendered moot by the allowance of benefits under 38 U.S.C.A. § 1151. As such, the Board will decide the issue herein. A review of the Virtual VA claims processing system does not reveal that any additional pertinent evidence has been added to the record since it was last considered by the Agency of Origianl Jurisdiction (AOJ) in July 2012. FINDINGS OF FACT 1. The Veteran died in January 1990, and the death certificate lists the immediate cause of death as "overdose of propoxyphene." 2. At the time of the Veteran's death, service connection had been established for hypertension, degenerative arthritis in both knees, traumatic arthritis in the elbow, pes planus, chronic low back strain, and chronic sinusitis. 3. The appellant submitted medical opinions that the pain for which propoxyphene was prescribed for the Veteran was due, at least in part, to his service-connected musculoskeletal disabilities, involving his knees, elbow and low back. CONCLUSION OF LAW Resolving any doubt in the appellant's favor, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § § 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the decision below is favorable to the appellant, discussion of the actions VA has taken to meet the duties to notify and assist the appellant is not necessary. 2. Service Connection for the Cause of the Veteran's Death In the present case, the appellant argues that she is entitled to service connection for the cause of the Veteran's death, an overdose of propoxyphene. In the previous July 2012 decision, the Board conceded that the Veteran was taking VA-prescribed propoxyphene at the time of death in support of an award of compensation under § 1151 for the Veteran's death. The appellant asserts that the Veteran was prescribed propoxyphene to treat the pain associated with his service-connected musculoskeletal disabilities involving his knees, elbow and low back. Ultimately, the appellant contends that the Veteran's service-connected disabilities contributed substantially to his death from an overdose of propoxyphene, because the Veteran would not have been taking propoxyphene but for to treat the pain associated with his service-connected musculoskeletal disabilities. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. See 38 C.F.R. § 3.312(b). 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, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). When it is determined that a veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, a surviving spouse is generally entitled to compensation benefits for the service-connected death (Dependency and Indemnity Compensation, or, DIC). 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a); see generally 38 U.S.C.A. Chapter 11. DIC benefits cannot be granted if the veteran's death was the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c); Myore v. Nicholson, 489 F.3d 1207, 1212 (2007) (a finding of willful misconduct precludes a finding of service connection for the purposes of DIC entitlement under 38 U.S.C.A. § 1310). 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). The United States 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). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Where drugs are used to enjoy or experience their effects, and the effects proximately result in death, the death will be considered the result of the person's willful misconduct. Here, the claims file contains no rating decisions dated during the Veteran's lifetime. A December 1994 search request reflects VA's acknowledgement that any claims and most medical records that were of file prior to 1990 are now missing and cannot be located. An RO rating decision dated in October 2000 mentions that service connection and a combined 30 percent rating had been in effect from May 1989. This rating apparently was for arthritis. VA treatment records reflect that the Veteran was service-connected for hypertension, degenerative arthritis in both knees, traumatic arthritis in the elbow, chronic low back strain, and chronic sinusitis prior to his death. The original death certificate reflects that the Veteran died at the age of 39 years from a sudden unexpected death. An amended death certificate reflects an overdose of propoxyphene. The autopsy report reflects that there was no evidence of pathology contributing to the Veteran's death and the postmortem toxicology report revealed lethal amounts of propoxyphene. The cause of the Veteran's death was listed as overdose of propoxyphene and finding of an "apparent suicide" was given. The appellant has consistently asserted that her husband did not commit suicide, but he may have inadvertently taken an overdose of medication. A November 1999 letter from Colonel C. states that after further consideration of the facts, the Veteran's death certificate was amended by striking the word "suicide" and inserting in its place the word "undetermined" under the provision marked "other significant conditions." In various statements, the appellant has consistently asserted that her husband did not intentionally commit suicide at the time of his death. On the day of his death, the Veteran drove the appellant to work, and picked her up from work, went to the library, researched how to repair the appellant's vehicle, planned to repair the appellant's vehicle the next day, and coached his son's basketball game. A December 2001 medical statement from Dr. E.S. noted that the Veteran was taking Atenolol, Brompheniramine, Naproxen, and Propoxyphene at the time of his death. Each of these medications had possible adverse side effects that included drowsiness, fatigue, confusion, and reduced alertness. Dr. E.S. opined that it was more likely than not that on the day in question, the Veteran was physically exhausted and that such physical exhaustion contributed to the Veteran's overdose. A December 2001 statement by pharmacist, C.B. reflects that he concurred with the opinion of Dr. E.S. with regard to the possible adverse affects. A lengthy 2006 "psychological autopsy report" by A.J., a retired psychotherapist, shows he had reviewed medical evidence as well as interviewed the appellant about the facts leading up to and surrounding the Veteran's death. In the psychological autopsy, A.J. states that the Veteran had more than 30 times the prescribed dosage of medication in his system. He also noted that the appellant had reported that the Veteran did not show any outward signs of depression, or exhibit any of the other danger signals. A.J. concluded that he believed that all the medications which the Veteran was taking put the Veteran in a stupor, and ultimately resulted in his unintentional overdose of propoxyphene. The Board has also considered a November 2004 VA medical opinion in which the clinician stated that ascribing mental incapacitation to taking prescribed medication and relating that to overdose of narcotics was clearly speculation and had no basis in fact other than stating plausibility, rather than likelihood. While this opinion questions whether the Veteran's medication altered his mental capacity, it does not clearly establish that he intentionally overdosed as a suicide gesture. The weight of the medical and lay evidence establishes that the Veteran's death, although due to an overdose of propoxyphene, was accidental in nature. Therefore, regulations governing claims for service connection when willful misconduct is at issue are not applicable. 38 C.F.R. §§ 3.1, 3.301. The remaining question on appeal is whether the Veteran's service-connected disabilities principally or contributed substantially to the cause of the Veteran's death, overdose from propoxyphene. VA medical records dated in May 1988 reflect that the Veteran was taking propoxyphene in May 1988 prior to surgery. A May 23, 1988 doctor's order notes that there was to be surgery the next day and that the Veteran was to take Atenolol and Tylenol that evening, but the record does not note propoxyphene. A May 24, 1988 medical note reflects that the Veteran had surgery for derangement of the right knee. Records after May 23, 1988 do not reflect propoxyphene. Outpatient VA treatment records from January 1988 to January 1990 reflect that the Veteran was taking Indomethacin for his knees in 1989, and Tylenol in 1988. The claims file does not include any clinical evidence that VA prescribed the Veteran propoxyphene in the year prior to his death. VA records from the month preceding his death indicate that he was taken off Indocin and switched to Naproxen. They are negative for any mention of propoxyphene (Darvon). (See December 5th and 18th 1989 VA records.) An October 1989 record lists the medications which the Veteran was taking as Indocin, methocarbamol, Mylanta, and Atenolol, but does not list propoxyphene. No VA medical records after the May 1988 surgery reflect that the Veteran was prescribed, or was taking, propoxyphene. However, records from the VA pharmacy are unavailable and there is no clear evidence that the Veteran was not taking VA-prescribed propoxyphene after May 1988 and at the time of his death. See April 2008 memorandum on formal finding of unavailability of VA pharmacy records from January 1989 to January 1990. Moreover, the appellant and her son have provided signed affidavit, in which they stated that in the months prior to his death, the Veteran picked up his prescriptions form the VA Hospital in Temple, Texas, and that he received Darvon (propoxyphene), Naproxen, Atenolol and Brompheniramine. Again, the Board has already conceded that the Veteran was taking VA-prescribed propoxyphene at the time of death in the July 2012 decision. In his December 2001 medical statement, Dr. E.S. noted that the Veteran was taking Atenolol and Brompheniramine to treat his high blood pressure, and he was taking Naproxen and Propoxyphene to treat his joint point. Dr. E.S. concluded that the Veteran's death "while accidental, was a direct result of medication prescribed for his service-connected disabilities." A May 2006 Pain Management Consultation report by Dr. D.W. reflects his opinion that the Veteran was experiencing significant pain in both knees. Dr. D.W. noted that patients can continue to take increasing amounts of pain medication and eventually the pain remains unaltered, even though the amount of medication has been quadrupled. These opinions support the appellant's assertion that the Veteran was taking propoxyphene to treat the pain associated with his service-connected disabilities, and his death from an overdose of propoxyphene was ultimately the result of medication used to treat his service-connected musculoskeletal disabilities. There is no medical opinion which is unfavorable to the claim. The Board has considered the medical opinions provided in by VA examiner dated in January 2012, in which the examiner concluded that it was less likely than not that cause of the Veteran's death, overdose from propoxyphene, was directly related to service or his service-connected disabilities. In support of his medical conclusion, the examiner noted that the VA treatment notes failed to demonstrate that the Veteran was prescribed propoxyphene by VA after May 1988. Again, the Board notes that it has already conceded that the Veteran was taking VA-prescribed propoxyphene at the time of his death. The January 2012 VA medical opinion carries no weight in this matter. As the facts otherwise do show that the VA had prescribed propoxyphene to the Veteran prior to his death, and because the lay and medical evidence demonstrates that the Veteran was taking propoxyphene to treat the pain caused by his service-connected disabilities, and after considering all the evidence of record, the Board finds that the evidence favors the claim. Resolving doubt in the appellant's favor, an award of service connection for the cause of the Veteran's death is warranted. ORDER The appeal for service connection for the cause of the Veteran's death is granted. ____________________________________________ J. K. Barone Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs