Citation Nr: 1319142 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-29 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to special monthly compensation based on the loss of use of a creative organ for accrued benefits purposes. REPRESENTATION Appellant represented by: A. J. White, Sr., Individual ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from September 1967 to September 1970 and from August 1973 to September 1990. He died in December 2007. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in April 2011. This matter was originally on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving reasonable doubt in favor of the appellant, medication used to treat the Veteran's service-connected PTSD at least in part contributed to his erectile dysfunction. CONCLUSION OF LAW The criteria for special monthly compensation based on the loss of use of a creative organ for accrued benefits purposes have been met. 38 U.S.C.A. §§ 1114(k), 5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.350(a), 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable outcome of this appeal with respect to the issue decided herein, any perceived lack of notice or development under the VCAA is not prejudicial. Accrued Benefits The appellant seeks entitlement to accrued benefits. Applications for accrued benefits must be filed within one year after the date of death. A claim for dependency and indemnity compensation by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000(c). The appellant met this requirement by submitting a claim for dependency and indemnity compensation in January 2008, within a year of the Veteran's death. Upon the death of the Veteran, periodic monetary benefits to which he was entitled at death based on existing ratings or decisions or those based on evidence in the file at the date of death, and due and unpaid may be paid to his spouse. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). By statute, the appellant takes the Veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). Thus, after the Veteran's death the appellant cannot furnish, and VA cannot develop additional evidence that might better substantiate the claim of entitlement to accrued benefits. "Claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. 38 C.F.R. § 3.1000(d)(5). In October 2007, the Veteran filed a claim of entitlement to service connection for "special "K" allowance" as a result of erectile dysfunction. That same month, the RO sent the Veteran a VCAA letter indicating that they were working on his claim for special monthly compensation due to loss of use. In support of his claim for special monthly compensation on the basis of loss of use of a creative organ, the Veteran submitted a medical opinion dated in July 2007 from a VA physician which states, "[The Veteran] has erectile dysfunction due to multiple factors. These factors are past chronic cocaine and (alcohol) use, past strokes, and smoking. Some medications prescribed to him have been associated with erectile dysfunction. Bupropion has been associated with impotence during postmarketing studies. However, bupropion is not the sole factor contributing to the erectile dysfunction." The VA medical records confirm that the Veteran was restarted on his previous dose of Wellbutrin which he had not taken for several weeks prior to his admission in September 2006 and was prescribed bupropion at discharge. Virtual VA records indicate that in October 2007, just months before his death, he was still being prescribed bupropion. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. In order to warrant service connection, there must be (1) medical evidence of a current disability; (2) medical evidence, 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 an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the record indicates that the Veteran's erectile dysfunction was, at least in part, caused by medication prescribed to treat a psychiatric disability. His psychiatric conditions included posttraumatic stress disorder (PTSD), depression, and polysubstance abuse. Bupropion is an antidepressant. Service connection had been established for PTSD. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran underwent VA examination in December 2004 at which time he was diagnosed on Axis I with PTSD, depression, and alcohol dependence. The examiner noted that the global assessment of functioning score assigned was for all of the Axis I diagnoses and could not be divided up due to the overlapping nature of these disorders. Here, the medical evidence does not clearly distinguish between psychiatric symptoms related to PTSD and depression. As such, the Board must consider that treatment for a depressed mood, such as Bupropion, as treatment in part for his service-connected PTSD. Id. Therefore, the Board concludes that treatment for the Veteran's psychiatric symptoms which has been related by competent medical evidence to his erectile dysfunction is at least in part due to his service-connected PTSD. ORDER Entitlement to special monthly compensation based on the loss of use of a creative organ for accrued benefits purposes is granted. REMAND With respect to the remaining issue on appeal, service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle, or a contributory, cause of death. 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2012). In this case, the Veteran's death certificate noted that the immediate cause of death, i.e., the final disease or condition resulting in death was hypertension. The underlying causes of death, i.e., leading to immediate cause, were tobacco use, chronic obstructive pulmonary disease, and polysubstance abuse. It is unknown whether an autopsy was conducted. At the time of his death, service connection had been established for PTSD, hammertoes on both feet and residuals of a fractured right elbow. Herein, the Board has determined that the Veteran's erectile dysfunction is also a result of service-connected disability. The Veteran's service treatment records indicate that throughout his service time, there were numerous episodes of elevated blood pressure. An "Over 40 Cardiovascular History" was taken in February 1987 which indicated a history of elevated blood pressure since 1968 which had been controlled without hypertensive medication. On his Report of Medical History for retirement, the Veteran reported high or low blood pressure. The examiner noted a history of increased blood pressure in the past and that the Veteran had never needed medication. Report of Medical Examination noted a blood pressure reading of 122/74. In December 2012, VA obtained a VA opinion by a nurse practitioner to determine whether the Veteran's hypertension was incurred in or aggravated by his military service. The nurse practitioner noted that there was no evidence the Veteran had hypertension as a disease needing treatment during military service and that there was no evidence that the Veteran's eventual diagnosis of hypertension was related to the events in service where he had isolated readings of elevated blood pressure. The examiner noted that treatment records begin post-military service around late 2003 but that there is another piece of paper in the claims file stating hypertension was a condition around 1995. The Veteran's service treatment records indicate that on Report of Medical Examination in September 1967 on induction, his heart was evaluated as normal and he denied palpation or pounding heart. He did, however, note shortness of breath and pain and pressure in chest. Physician's summary included shortness of breath on exertion and occasional chest pain when trying to sleep. Throughout his service time, there are numerous reports of chest pain and occasional reports of shortness of breath and dizziness. An April 1968 consultation report noted a long history of recurrent chest pain associated with shortness of breath and negative physical examinations. Electrocardiogram in December 1970 was normal. On Report of Medical Examination in February 1982, the Veteran's heart was clinically evaluated as abnormal with abnormal rhythm with murmur. Electrocardiogram in April 1985 showed non-diagnostic Q waves in inferior leads. Electrocardiogram in May 1986 showed first degree atrioventricular block. In November 1986, an echocardiogram was normal. In January 1989, the Veteran presented to an emergency room with complaints of feeling extra beats. The Veteran reported that he had been feeling these extra beats for 10 years with negative work-ups in the past. Physical examination demonstrated occasional irregular beat. Assessment was probable paroxysmal premature ventricular contraction, premature atrial contraction, and rule out mitral valve prolapse. The February 1987 "Over 40 Cardiovascular History" noted no history of abnormal echocardiogram, syncope, dyspnea, palpations, chest pain, or myocardial infarction. In February 1989, the Veteran underwent cardiology consultation. There was no murmur noted on physical examination. He was referred for an electrocardiogram to rule out mitral valve prolapse. A March 1989 exercise electrocardiogram was normal but the test was stopped after twelve minutes due to electrical power failure. An April 1989 consultation report noted redundant mitral valve with mitral valve prolapse and thickened aortic valve without stenosis. On his June 1990 Report of Medical History for retirement, the Veteran reported a history of dizziness or fainting spells, shortness of breath, pain or pressure in chest, palpitation or pounding heart, and high or low blood pressure. The examiner noted that cardiology evaluation in February 1989 with a diagnosis of mitral valve prolapse and a history of increased blood pressure in the past and that he had never needed medication. Report of Medical Examination evaluated the Veteran's heart as normal; and his blood pressure was within normal limits. Recommendation was to follow up with VA for, inter alia, chest pain and mitral valve prolapse. VA medical records dated in May 2005 and April 2007 note that the Veteran had cardiac murmur and mitral regurgitation. A January 2008 addendum by the Veteran's VA physician noted obtaining the medical records of advanced cardiac life support administered in December 2007 at Southside Regional Hospital. The physician noted that the Veteran entered the emergency room with ventricular fibrillation, that turned into asystole after defibrillation. Advanced cardiac life support was performed for roughly 40 minutes with no response. Evidence of ventricular fibrillation suggested possible coronary artery disease with known risk factors of hypertension, tobacco use, and polysubstance abuse. "Will list known risk factors as causes of death." In view of the Veteran's in-service diagnosis of mitral valve prolapse, post-service diagnosis of mitral regurgitation, the suggestion of possible coronary artery disease, and his terminal diagnosis of cardiopulmonary arrest, it is the Board's opinion that a medical opinion be obtained as to whether the Veteran's death is in any way related to mitral valve prolapse; and if so, whether mitral valve prolapsed was incurred in or aggravated by his active duty service. In addition, as noted by the Board in April 2011, the Veteran served in Vietnam. Thus, he is presumed to have been exposed to Agent Orange. During the pendency of the appellant's claim and appeal, VA amended the presumptive service connection provisions of 38 C.F.R. § 3.309(e) to include ischemic heart disease to the diseases associated with Agent Orange exposure. 75 Fed. Reg. 53202 (August 31, 2010). The pertinent part of that amendment added the following to 38 C.F.R. § 3.309(e) : "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)." 75 Fed. Reg. at 53216. In May 2011, the appellant was asked to submit medical evidence that shows that the Veteran had ischemic heart disease; acute, subacute, or old myocardial infarction; atherosclerotic cardiovascular disease; coronary artery disease; coronary spasm; coronary bypass surgery; or stable, unstable and Prinzmetal's angina, to include a medical opinion that it contributed to his death. In response, the appellant submitted VA Forms 21-4142 for Southside Regional Medical Center for terminal medical records, and VA medical facilities in Richmond, Hampton, and Baltimore. The Veteran's terminal private medical records indicate, however, that his primary care facility was Kenner Army Health Clinic. It is the Board's opinion that the appellant should also be asked to provide authorization to enable VA to obtain any records from Kenner Army Health Clinic regarding hypertension or any such cardiac disorders. Further, the Veteran's service treatment records also indicate that he was treated for alcohol dependence. VA's General Counsel has interpreted that direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Service connection for compensation purposes is permitted for an alcohol or drug abuse disability acquired as secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. at 1381. A May 2004 PCT-Medication Intake record noted that the Veteran reported that he started drinking alcohol when he went to Vietnam and blamed his experiences in war as the reason for his drinking. In view of the Veteran's in-service diagnosis of alcohol dependence and his reports of drinking since his duty in Vietnam and due to his experiences in Vietnam, it is the Board's opinion that a medical opinion be obtained as to whether the Veteran's alcohol dependence is in any way related to service-connected PTSD. Finally, the record indicates that the Veteran planned to file for Social Security disability benefits in 2005. VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Accordingly, the case is REMANDED for the following action: 1. The appellant should be provided with the necessary authorizations for the release of any treatment records not currently on file, to include any treatment records pertaining to treatment for hypertension or cardiac disorders from the Kenner Army Health Clinic. These records should then be obtained and associated with the claims folder. The appellant should be advised that she may also submit any evidence or further argument relative to the claim at issue, to include competent medical evidence that the Veteran had ischemic heart disease; acute, subacute, or old myocardial infarction; atherosclerotic cardiovascular disease; coronary artery disease; coronary spasm; coronary bypass surgery; or stable, unstable and Prinzmetal's angina, as well as a medical opinion that it contributed to his death. . 2. The Veteran's medical and adjudication records should be requested from the Social Security Administration. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After the above have been accomplished, medical opinions from a cardiologist and a psychiatrist must be obtained to determine whether the Veteran's cause of death is related to his military service, and whether a service-connected disability was the principal cause of death or substantially/materially contributed to the cause of the Veteran's death. Access to the claims folder as well as Virtual VA must be provided to the reviewing cardiologist and psychiatrist. The examiners must document their review of the death certificate, the claims folder and Virtual VA. * The cardiologist must opine whether it is at least as likely as not that the Veteran suffered from coronary artery disease at the time of his death, and if so, whether it is at least as likely as not that coronary artery disease caused or substantially or materially contributed to the cause of his death. * The psychiatrist must opine whether it is at least as likely as not that the Veteran's history of alcoholism was caused or permanently aggravated by his service connected posttraumatic stress disorder. A complete rationale for any opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, must be set forth. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 4. After ensuring that the duty to assist has been fulfilled, the case must then be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the appellant should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs