Citation Nr: 1327028 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-27 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for Veteran's cause of death. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to April 1977, to include service in the Republic of Vietnam. The appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The appellant attended a hearing in November 2011 before the undersigned Veteran's law judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. During the Veteran's lifetime, service connection had been established for posttraumatic stress disorder (PTSD) rated at 70 percent disabling, tinnitus rated at 10 percent disabling, shrapnel wound to the right knee rated at 10 percent disabling, bilateral hearing loss rated at 0 percent disabling, residual scar due to shrapnel wound to the right knee and right shoulder rated at 0 percent disabling , and posttraumatic changes of the right shoulder due to shrapnel wounds rated at 0 percent disabling; his combined schedular evaluation was 80 percent. 2. The Veteran's autopsy showed he died in February 2009 due to acute polydrug toxicity (Hydrocodone, Oxycodone, and Alprazolam), with chronic obstructive pulmonary disease (COPD) noted as a contributory cause. 3. The Veteran's polydrug toxicity is not shown to be related to service. 4. Probative medical opinion shows the Veteran's death is more likely than not related to an accidental overdose while treating his multiple medical issues to include chronic back pain and COPD. 5. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening, the Veteran's death. CONCLUSION OF LAW A service-connected disability or a disability of service origin did not cause the Veteran's death, or substantially or materially contribute to his death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record reflects that in a May 2009 letter, the appellant was informed of the evidence needed to substantiate her claim of entitlement to service connection for the cause of the Veteran's death. It also informed her of the evidence that she should submit and that which VA would obtain on her behalf. The letter included a list of the Veteran's service-connected disabilities during his lifetime. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA medical opinion evidence, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the appellant. The appellant has been afforded a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her cause of death claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran's cause of death was service-related. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the appellant volunteered the Veteran's treatment history, his symptoms prior to his death, and noted why she feels that the Veteran's death is related to service. Accordingly, the appellant is not shown to be prejudiced on this basis. Finally, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service Connection for Cause of Death Service connection for cause of death may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected disability or a disability related to service. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered 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). The service-related disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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). The debilitating effects of a service-connected disability must have made the Veteran 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). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The autopsy report reflects that the Veteran died in February 2009. The cause of the Veteran's death was reported as acute polydrug toxicity (Hydrocodone, Oxycodone, and Alprazolam), with COPD identified as a contributory cause. At the time of the Veteran's death, service connection was not in effect for any drug abuse, or respiratory disorder. The Veteran did not take these drugs during service. Post-service treatment records show the use of these drugs to treat a chronic back problem beginning many years after service. The record contains no competent opinion or evidence that connects the Veteran's polydrug toxicity with his service. Nor has the appellant presented any medical opinion or record to connect the Veteran's death to his service. The appellant asserts three theories of entitlement. She notes that the Veteran overdosed due to his impaired thinking that resulted from his PTSD. She also asserts that the Veteran may have overdosed on purpose due to his PTSD. Finally, she asserts that VA provided the Veteran with drugs that should not have been prescribed. The Board notes that private treatment records, as well as a VA summary of non-VA treatment dated March 2008 show that the Veteran was provided with painkillers, to include oxycodone from a private doctor and not from VA. Therefore, VA may not be held responsible for prescribing that drug, and there is otherwise no competent evidence this theory of entitlement has any medical validity. The Board then turns to whether the Veteran's death is causally related to his PTSD. The appellant has not demonstrated that she has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between a service-connected disability and cause of death, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance. In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent. As to a nexus opinion relating the Veteran's PTSD to the his cause of death by acute polydrug toxicity, the Board finds that the etiology of the Veteran's psychiatric history and medical use of painkillers is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence. The appellant is certainly competent to testify as to observable symptoms, which are non-medical in nature; however she is not competent to render a medical diagnosis or etiology. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). Therefore, the Board must consider the medical opinions of record. In May 2013, the Board requested a specialist's opinion regarding whether the Veteran's polydrug toxicity is causally related to his PTSD. This opinion was provided in May 2013 and is the only medical nexus opinion of record. The examiner is a staff psychiatrist board-certified in Adult Psychiatry, Forensic Psychiatry, and Addiction Medicine. She reviewed the claims folder extensively to include the appellant's lay statements. The examiner opined that it is not at least as likely as not that the Veteran's PTSD caused confusion or impaired thinking that accidentally led to the Veteran's polydrug toxicity; and that it is not at least as likely as not that the severity of the Veteran's PTSD prior to his death caused the Veteran to purposely ingest an excess amount of medication, which resulted in his acute polydrug toxicity. The examiner provided a lengthy rationale for her findings. She noted that the Veteran did take large doses of opiate medications in 2007 that may have resulted in confusion (according to his widow's statements), but in 2008 he had reduced such doses. The Veteran sought treatment for PTSD and had been treated with bupropion and alprazolam and psychotherapy. The Veteran's blood levels of bupropion and alprazolam were within therapeutic range, indicating that at the time of death he was compliant with his medications for PTSD. The widow's description of her last conversation with the Veteran does not indicate any confusion, nor is there any suggestion in his last communication with his widow that he was suicidal. The Veteran's activities do not indicate confusion, and the examiner noted that the Veteran was never hospitalized for suicide and never had a history of prior suicide attempts. The records indicate that the Veteran did have episodes of over-taking prescribed opiate medications prior to his death and had struggled successfully to reduce his consumption of opiates in 2008. The examiner continued noting that the Veteran had multiple medical issues to include chronic back pain and lung disease, for which he took a number of medications including opiates. According to the Veteran's statements to his wife on the day prior to his death, the Veteran had walked six miles that day. Given his chronic back problems, low back pain, and lung problems, this represented a far greater physical effort than his usual efforts prior to his trip to Florida. In his medical history, the Veteran stated that the main factor that exacerbated his back pain was walking. From his statements to his physicians and his widow, he relied upon his pain medications when he was in pain. The fact that the only medications that were at toxic levels at the time of death were his opiate medications is consistent with the probability that he took excess pain medication to alleviate an exacerbation of his chronic pain after over-exertion. The examiner also noted residual alcohol in the Veteran's body, but the level at the time of autopsy was not toxic. Therefore, the examiner found that the most likely explanation for his death is that he suffered and accidental overdose of his pain medications after over-exerting himself and that his judgment may or may not have been impaired by alcohol consumption at the time of the accidental overdose. Based on this evidence, the Board finds that the May 2013 VA examiner's opinion is of more probative value than the appellant's lay statements. Therefore, it is concluded the Veteran's death was caused by acute polydrug toxicity, which was a result of an accidental overdose while treating a chronic back problem, and is not service-connected. Finally, the Board notes that the evidence fails to show any relationship between the Veteran's service-connected tinnitus, shrapnel wound to the right knee, bilateral hearing loss, residual scar due to shrapnel wound to the right knee and right shoulder, or posttraumatic changes of the right shoulder due to shrapnel wounds and his death. The appellant does not assert and the evidence does not suggest that the Veteran's death is related to any of these additional service-connected disabilities. Under the circumstances of this case, the Board finds that the Veteran's death was unrelated to service or a service-connected disability. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs