Citation Nr: 1322926 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-24 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Disability and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to September 1954. He died in June 2009. The Appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2012, the Appellant testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's service connected PTSD was a contributory cause of his death. 2. The grant of entitlement to service connection for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1310 renders moot the appellant's claim for entitlement to DIC benefits, under the provisions of 38 U.S.C.A. § 1318. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 5107(b), 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2012). 2. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is moot. 38 U.S.C.A. §§ 1318, 7104 (West 2002); 38 C.F.R. §§ 3.22, 20.101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for the cause of the Veteran's death, which constitutes a complete grant of the benefit sought on appeal, rendering the claim for DIC under 38 U.S.C.A. § 1318 moot. As such, no discussion of VA's duty to notify or assist is necessary. Service Connection for the Cause of the Veterans Death The Veteran died as the result of injuries sustained when trapped under a motorized bed. It is the Appellant's contention that his death was caused by his service-connected PTSD because but for his PTSD symptoms he would not have placed himself under the bed and/or would have not become confused and operated the bed while trapped there. As explained below, during the Veteran's lifetime he had Axis I diagnoses of vascular dementia and PTSD. Axis V diagnoses included alcohol abuse, cocaine abuse, and PCP abuse, all in remission and there is evidence tending to show that the substance abuse is related to the Axis I PTSD diagnosis. Questions raised by the record include whether symptoms due to PTSD as opposed to or in conjunction with vascular dementia caused his death, whether the cerebrovascular accidents (CVAs) to which his dementia has been attributed were caused by his substance abuse, and whether his substance abuse was secondary to his PTSD. After weighing the relevant evidence of record, the Board concludes that the evidence is at least in equipoise as to whether disability due to the Veteran's PTSD was a contributory cause of his death. Service connection for the cause of the Veteran's death is warranted. The law provides DIC benefits for a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310 (West 2002). A service-connected disability is one which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). At the time of the Veteran's death, service connection had been established for PTSD, evaluated as 50 percent disabling since July 2001. The Certificate of Death documents that the Veteran died in June 2009 and it lists the immediate cause of death as cardiopulmonary arrest due to or as a consequence of probable accidental respiratory arrest due to compression between a bed and the bed frame. The death certificate lists PTSD as a significant condition contributing to death but not resulting in the underlying cause. During the March 2012 Board hearing, the Appellant testified that her physician had amended the death certificate at her request after she informed him of the circumstances surrounding the Veteran's death and based on a determination that the Veteran would not have been between the bed and bed frame but for the effects of his PTSD. T. at 8-9. The Appellant testified that on the day of the Veteran's death, she found him underneath his motorized bed and she believes that he had manipulated the controls of his bed while beneath it, causing the bed to operate and ultimately crush him. T. at 4, 9. She testified that the Veteran acted erratically in the months prior to his death, including falling out of bed, and hiding underneath the bed. T. at 3-7. In a November 2009 statement, the Appellant contended that the Veteran had used cocaine in the past in an effort to self medicate his PTSD and that the cocaine abuse created a risk of CVAs. The Veteran was diagnosed with vascular dementia. She inferred that his mental condition, due to either the PTSD or the vascular dementia, caused him to place himself under the bed and caused him to become trapped there and crushed between the bed and the bed frame. She submitted information obtained from an internet search relating stroke to cocaine use. Put another way, she contends that his PTSD symptoms caused a chain of events that placed him under the bed and resulted in his fatal injuries. A December 1989 VA examination report documents the Veteran's report that he self medicates. The report also notes that the Veteran claimed that part of the reason for his drinking was to try to blot out his memories and to drink himself to sleep. This came after a discussion of combat experiences that are the basis for his PTSD. The claims file contains a history of the Veteran's alcohol and polysubstance abuse, most comprehensively noted in a December 2000 substance abuse clinic intake assessment. VA treatment records, for example those from February 2008, document that the Veteran had multiple CVAs, with the first occurring in 2001. He was admitted in February 2003 for cognitive impairment and found to have an acute left anterior parietal infarct. The bulk of VA psychology treatment notes after that time refer to the effects of his CVAs. He was admitted to a VAMC in February 2008 due to decreased mental status, possible recurrent cerebral infarct. Those notes document that the Veteran had a history of vascular dementia. Near the end of that admission one of his listed problems was multiple CVA confusion. A treatment record lists of problems included cognitive disorder status post CVA and memory loss since at least 2002 as well as that he was a safety risk due to falling. A clinical psychologist's note from March 2008 includes Axis I diagnoses of vascular dementia and PTSD. Six days prior to his death, the Veteran underwent a VA compensation and pension examination with regard to his PTSD. Based on the Veteran's confusion, the examiner found his thought processes impaired. The examiner provided Axis I diagnoses of PTSD and vascular dementia and stated that the diagnoses were not related. Other psychiatric diagnoses, such as substance abuse, were described as in remission. The examiner stated that the Veteran was so impaired due to his CVAs that any impairment that was a function of his PTSD had been overtaken by his loss of brain function. She stated that he was not capable of performing even the most basic physical and sedentary activities due to his physical condition. In September 2009, a VA examiner rendered an opinion as to whether the Veteran's PTSD caused his death. The examiner stated that the Veteran suffered from recurrent subcortical strokes as a result of hypertension, diabetes, hyperlipidemia, Parkinson's disease, and long term alcohol and polysubstance use. This September 2009 opinion thus provides a causative link between the Veteran's CVAs and his alcohol and polysubstance use. The June 2009 opinion already described links his substance abuse to his PTSD. This chain of causation thereby links his CVAs to his PTSD. In April 2013, the Board solicited an expert opinion from a Veterans Health Administration (VHA) physician. The physician determined that it is more likely than not that the Veteran's confusion caused him to become trapped under the motorized bed, but that it was less likely that his PTSD caused the confusion. Rather, the physician attributed his confusion to vascular dementia. More importantly, the examiner stated as follows: Based on available data in the C-file indicating repeated strokes resulting in increased cognitive difficulties, the vascular dementia is seen as the primary cause of the fatal accident. The PTSD may have contributed to the behavior of hiding under the bed, which is not a behavior that would usually cause a fatal accident, but with the confusion or cognitive problems, may have in some way have possible predisposed the Veteran to the accident. The examiner also provided an opinion as to the likelihood that the Veteran's alcohol and polysubstance abuse was the result of his PTSD symptoms, to include self medication of his PTSD symptoms, as follows: Based on records, the Veteran did start using alcohol and other illicit substances even prior to the military. It is more likely than not that the Veteran had a co-morbid addiction problem, separate from his PTSD, and this addiction is not seen as primarily just for self medication for his PTSD symptoms. He had been through different chemical dependency treatements but struggled with maintaining sobriety until much later in life. The Board finds that the evidence is in equipoise as to several questions. First, while he explained that it is less likely than not that his CVAs were primarily caused by his polysubstance abuse, the examiner's use of "primarily caused" leads the Board to the conclusion that the CVAs were caused, at least in part, by the substance abuse. There are conflicting opinions as to whether the PTSD caused or at least aggravated the substance abuse. As there appears to be no doubt that the Veteran's mental state was a contributory cause of his death, this chain of causation, from his PTSD, to substance abuse, to CVAs, and to vascular dementia is sufficient to support a grant of service connection for the cause of the Veteran's death. Moreover, all medical experts agree that the Veteran's PTSD symptoms caused him to place himself in the dangerous position. This, standing alone, is sufficient for the Board to conclude that the Veteran's PTSD was a contributory cause of his death. For these reasons, the Board concludes that the appeal must be granted as to the issue of entitlement to service connection for the cause of the Veteran's death. DIC benefits under 38 U.S.C.A. § 1318 The appellant has also submitted a claim based on 38 U.S.C.A. § 1318, as an alternative theory of entitlement to the service connection for the cause of the Veteran's death in seeking DIC compensation benefits. In light of the grant of benefits described above, the Board concludes that the appellant's respective DIC claim is rendered moot. Indeed, pursuant to 38 U.S.C.A. § 2307 (West 2002), there are service-connected death burial benefits that are available under 38 U.S.C.A. § 1310, but not under 38 U.S.C.A. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997). Entitlement to VA benefits under 38 C.F.R. § 1310 is the greater benefit, and it is granted in full. The Court has further indicated that, only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C.A. § 1310, is VA required to also consider an appellant's claim under the provisions of 38 U.S.C.A. § 1318. Timberlake v. Gober, 14 Vet. App. 122, 134-35 (2000). In light of the grant of service connection for the cause of the Veteran's death, the claim for entitlement to DIC under 38 U.S.C.A. § 1318 is moot, and the claim is dismissed. ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to Disability and Indemnity Compensation benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs