Citation Nr: 1328221 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 11-31 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to April 1987. He died in April 2009. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the RO in Little Rock, Arkansas, which, in relevant part, denied entitlement to service connection for the cause of the Veteran's death and for DIC benefits under 38 U.S.C.A. § 1318 . The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The appellant testified before the undersigned at an August 2012 videoconference hearing. A transcript has been associated with the file In September 2012 the Board denied the appellant's claims for entitlement to service connection for the cause of the Veteran's death and for DIC benefits under 38 U.S.C.A. § 1318. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (the "Court"). In an April 2013 decision the Court remanded and vacated the September 2012 Board decision as to the issue for service connection for cause of the Veteran's death. The appellant abandon her claim for entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on April [redacted], 2009 as the result of an acute myocardial infarction. 2. During his lifetime, the Veteran was service connected at the time of his death for service-connected for bronchial asthma and chronic obstructive pulmonary disease (COPD), rated as 100 percent disabling, degenerative thoracic and lumbar spine disease, rated as 40 percent disabling, degenerative cervical spine disease, rated as 20 percent disabling and cervical radiculopathy, rated as 20 percent disabling. 3. The Veteran's death was caused by his willful misconduct of abusing prescription medication. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110 , 1131, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for the cause of the Veteran's death. She contends that the Veteran's bronchial asthma with COPD lead to heart disease and ultimately the myocardial infarction that caused his death. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5(a), 3.312 (2012). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order 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 caused or contributed substantially or materially to the veteran's death. The issue involved will be determined by the exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and 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); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Certificate of Death states that the Veteran died of an acute myocardial infarction on April [redacted] , 2009. An autopsy was conducted which showed marked thickening of the left ventricle and valves with ischemic changes of the valves and sclerotic changes of the coronary arteries. The Veteran was not service-connected for a cardiovascular disability during his lifetime. He was service connected at the time of his death for service-connected for bronchial asthma with COPD, degenerative thoracic and lumbar spine disease, degenerative cervical spine disease, and cervical radiculopathy. The Veteran's bronchial asthma with COPD was rated as 100 percent disabling prior to his death. Where a 100 percent rating is in effect for a vital organ, as opposed to a 100 percent rating for a musculoskeletal disability, the such service-connected diseases or injuries are to receive careful consideration as a contributory cause of death from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. See 38 C.F.R. § 3.312(c)(2). The appellant has testified that she believes that the Veteran's myocardial infarction was the result of his service-connected COPD. The Board observes that lay evidence can be competent and sufficient to establish the elements of service connection for cause of death. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the appellant is competent to give evidence about what she observed about the Veteran, she is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because she does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Simply stated, she is not medically qualified to diagnose the cause of the Veteran's death. The appellant has not reported that she has been told by a medical professional that the two conditions were related. She has submitted numerous articles regarding a relationship between COPD, for which the Veteran was service-connected, and myocardial infarctions. Thus, she is competent to report the contents of the articles and that they suggest a relationship between a disability for which the Veteran was service-connected and the cause of his death. She is not competent to offer an opinion that the two are at least as likely as not related in this case based either on her lay observations or on borrowed medical expertise. The Board has reviewed the articles submitted by the appellant. They indeed show that the COPD and asthma have been linked to heart disease and myocardial infarction. These articles indicate that these linkages are possible, using terms like "may" and "could" in describing the physical disease process. A medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship. Bostain v. West, 11 Vet. App. 124, 127-28 (1998). Moreover, none are tailored to the facts of the instant case. Thus, while these articles raise a possibility of a relationship, they do not establish a probability (at least as likely as not) and cannot alone support service connection for the cause of the Veteran's death. It appears that it light of these articles, the RO sent the file for a VA medical opinion to determine whether a relationship existed between the Veteran's COPD and his myocardial infarction, the cause of his death. The claims file was reviewed in July 2009. The examiner noted that such a relationship was possible, as the articles state (there is no disagreement in this regard). The examiner reported, however, that review of the claims file revealed that the Veteran's bronchial asthma and COPD had been stable in the several month medical records prior to death; there was no evidence of bronchial asthma or treatment for COPD. He also reported that the Veteran had been seen repeatedly for narcotic prescription refills ahead of schedule and had acted out when refused medications. The Veteran had been admitted to a psychiatric unit for polysubstance abuse at least nine times in the years preceding his death. He had constantly requested his Oxycodone be filled at several months at a time, and, if refused, had stated that he would wait in the lobby for as long as it took to obtain what he wanted. The examiner indicated that the Veteran's behavior established that he had been abusing his prescription medication. The examiner indicated the drug abuse was far more likely the cause of the Veteran's myocardial infarction, providing highly probative evidence against this claim as it indicates the cause of the myocardial infarction was not COPD, but the abuse of prescription medication. The appellant has submitted records from 2008 which, she contends, showed that the Veteran's bronchial asthma and COPD were not stable. The first, a June 2008 record from the Specialist Group Hospital and Trauma Center, shows that the Veteran was seen as an OPD (outpatient department) on June 23, 2008 with the diagnoses of deterioration of the back and cervical pain, deterioration of the ankle and knee and status asthmaticus. In this record, there is no indication of active or uncompensated bronchial asthma or COPD at this time. This record above is consistent with the examiner's view that the Veteran was seeking prescription medication for his drug abuse problem. The second record is from the Pangasinan Provincial Hospital dated in December 2008, but showing treatment from September 28 to 29, 2008, for pneumonia and COPD. The appellant has also submitted a copy of a VA urinalysis test, the date of which does not appear on the record, which showed negative results for amphetamines, methamphetamines, and cocaine. The Board emphasizes that the VA opinion identified abuse of prescription medication, particularly oxycodone, not abuse of amphetamines, methamphetamines, and cocaine as the underlying cause of death. There is no reason to find that the negative test findings at that time emphasized by the appellant are relevant. The VA opinion triggers another provision of law: If the abuse of drugs was the cause of the Veteran's death, it cannot form the basis for a grant of benefits because statute and regulation treat such use as misconduct and expressly exclude direct service-connection for disability or death caused by such use. See 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2011). The law does not preclude compensation for a drug abuse disability acquired as secondary to, or as a symptom of, a veteran's 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." See Allen, 237 F. 3d at 1381. Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. See 38 C.F.R. § 3.301(c)(3). The record reveals that the Veteran was prescribed oxycodone for pain management, which is related to his service-connected degenerative spine disabilities. The mere use of the drugs prescribed would not constitute willful misconduct, but the Veteran's overuse would be. The Veteran was also refused drugs on several occasions on the grounds that he was not due for refills indicating that he was consuming the drugs faster than the prescription allowed for. The Veteran would have been confronted, in life, with the fact that he was abusing his prescriptions. The effect of that misuse has been shown to have caused his death by competent medical evidence. As such, the Board finds that the Veteran's death was caused by willful misconduct. The Board finds that the preponderance of the evidence shows that the Veteran's service-connected bronchial asthma with COPD did not cause or contribute to his myocardial infarction which lead to his death. The Board has two independent bases for the denial of this claim, either of which provides a basis to deny this claim, independent of the other reason: (1) the Veteran's death was caused by willful misconduct, for reasons cited above; and (2) the best medical evidence in this case indicates that the Veteran's service-connected bronchial asthma with COPD did not cause or contribute to his myocardial infarction. The Court found that the above discussion did not adequately address whether the Veteran's abuse or misuse of drugs was secondarily related to his service connected spine condition. In this regard, VA does not consider drug use or addiction to be misconduct origin or a bar to the awarding or increasing of monetary benefits where the use of drugs or drug addiction is shown by substantiating evidence as arising out of use for recognized therapeutic purposes or secondary to, or resulting from, a service connected disability. (emphasis added) See MANUAL M21-1 MR, pt. IV, subpt. ii, ch. 2, sec. K.68.d. In this case, there is simply no substantiating evidence that the misuse of drugs was secondarily related to his service connected spine condition. A detailed review of the records, which are extensive, finds no connection between the back/neck problems (or any other service connected condition) and the Veteran's drug problem, which appear to have existed for a long period of time (the Veteran's family history of alcoholism was clearly noted in the November 2005 VA treatment record, with the "drug of choice" at that time cited to be cocaine). The detailed treatment records of the Veteran's drug abuse over many years are clear: the Veteran struggled with the abuse of several different drugs over many years, with the abuse of prescription medication being only a part of the Veteran's problem over his lifetime. The treatment records clearly provide evidence against the claim, indicating the abuse of drugs prior to the use of prescription medication for his service connected condition. A Veteran is allowed compensation when he can establish that his drug abuse is secondary to or is caused by a service-connected disability. Allen, 237 F.3d at 1381. However in this case, the appellant has not established that the Veteran's drug abuse was secondary to a service connected disability, or that his death due to drug abuse was secondary to a service connected disability. The July 2009 VA examiner concluded that the polysubstance abuse and narcotic abuse caused the Veteran's death. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Board finds that there is no substantiating evidence that the Veteran's abuse of drugs was related to his service connected spine disability. The appellant has emphasized in many of her statements that the Veteran died at a relatively young age, forty three years old, which is not in dispute. The appellant has offered competent but limited evidence that his bronchial asthma and COPD could cause or contribute to a myocardial infarction, but she has not presented, and the record does not otherwise reflect, that such a relationship is at least as likely as not in this case. The VA examiner considered the possibility of a relationship and rejected it based on a thorough review of the Veteran's medical history and specifically his behavior in abusing prescription medication, which is fully supported by a review of the treatment records. The Board has considered the 100 percent rating for bronchial asthma and COPD, but given the VA examiner's opinion regarding substance abuse, the Board considers the benefit barred by the Veteran's willful misconduct. Service connection for the cause of the Veteran's death is not warranted. As such, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has found that the Veteran's death was the result of willful misconduct. As explained above, the Veteran's death has been linked by competent medical evidence to prescription drug abuse. The record shows persistent overuse of his prescription medications, and other illegal drugs, fully supported by the treatment records (beyond the VA medical opinion), providing highly probative evidence against this claim. Use of intoxicating substances for the enjoyment of the effects on a continuous basis is considered willful misconduct. Even assuming that the Veteran otherwise qualified, his death due to willful misconduct would bar benefits for the appellant. 38 C.F.R. § 3.22(a)(1). Duties to Notify and Assist With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the context of a claim for cause of death benefits, 38 U.S.C.A. § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected in order to satisfy the first Quartuccio element. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Prior to initial adjudication of the appellant's claim, a July 2009 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The July 2009 letter also provided Hupp compliant notice. Prior to initial adjudication of the appellant's claim for DIC under 38 U.S.C.A. § 1318, the July 2009 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant did request that the RO obtain the Veteran's final treatment records from the Blessed Family Hospital in the Philippines during the course of the claim. The appellant changed her mind and told the RO to proceed without those records in August 2009. There are no other outstanding identified records which the appellant has indicated are relevant to the appeal. The duty to assist also includes obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant was afforded medical opinion as to whether the Veteran's cause of death can be directly attributed to service or to his service connected disabilities. The medical review was thorough, considered the Veteran's history, his cause of death and provided an opinion supported by rationale tailored to the facts of the case, the critical issue in this case. As discussed, the lay evidence of record is not sufficient to establish a nexus between the cause of the Veteran's death and a condition which was or could have been service-connected. Further opinion is not needed on the cause of death claim because, at a minimum, there is no persuasive and competent evidence that the Veteran's cause of death may be associated with the Veteran's honorable military service or service connected disabilities or whether the Veteran's misuse of drugs was caused or related to his service-connected spine condition. Regarding the last question, there is simply nothing in the record that indicates part three of the McLendon test is met (an indication that the disability or symptoms may be associated with service, or in this case, a service connected condition) and significant evidence against such a finding in the form of the VA treatment record, which clearly indicate a drug abuse problem well before the use of prescription drugs for his service connected disabilities. The Veteran's own statements regarding his struggles with this drug problem contained within the efforts by VA to treat him for this condition support this finding. Beyond this fact, it is very unclear as to what a medical provider could provide in terms of a medical opinion regarding this issue (the opinion would be speculative, at best) regarding a theory of causation that the appellant herself did not present at her hearing before the undersigned. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mlechick v. Mansfield, 503 F.3d 1340 (2007). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs