Citation Nr: 1334065 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-31 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 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 The Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active military service from October 1972 to September 1974 and from April 2003 until his death in May 2005. The appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board/BVA) from a June 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, in support of her claim, the appellant-widow testified at a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing). The Board subsequently, in February 2011, remanded her claim to the RO via the Appeals Management Center (AMC) for further development and consideration. The Acting Veterans Law Judge (AVLJ) who presided over the hearing and issued that remand since has retired from the Board. So, in March 2012, the appellant was advised of this and given the opportunity to testify at another hearing before a different VLJ that would ultimately decide her appeal. She was advised to respond within 30 days, otherwise the Board would assume she did not want another hearing. She did not respond to that letter, either within the time allotted or even since, so the Board is proceeding with adjudication of her claim. FINDINGS OF FACT 1. The Veteran died on May [redacted], 2005. The death certificate lists multiple drug toxicity/overdose, including alprazolam, hydrocodone, and oxycodone, as the cause of death. He was on active duty in the military at the time of his death. 2. The service department determined his death was not in the line of duty and the result of his misconduct based on the presumption he was not legally prescribed the drugs that ultimately caused his death. 3. But his service treatment records (STRs) show otherwise, indicating he was legitimately prescribed hydrocodone and oxycodone within 2 months of his death, and alprazolam within 6 months of his death. 4. The presumption his death was in the line of duty and not the result of his willful misconduct has not been rebutted. CONCLUSION OF LAW The criteria are met for service connection for the cause of his death. 38 U.S.C.A. §§ 105, 1110, 1310 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural notice and assistance VA must provide claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case at hand, however, the Board is fully granting the benefit sought on appeal so need not discuss whether there has been compliance with these obligations. Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) is payable if a Veteran died while on active duty service. 38 U.S.C.A. § 1310(a)(b); 38 C.F.R. § 3.312. An injury or disease incurred during active military service will be deemed to have been incurred in the line of duty when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person's willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(a). 38 U.S.C.A. § 105(a) establishes a presumption in favor of a finding of in the line of duty. In order to deny the claim, the Board must establish that denial of the claim is justified by a preponderance of the evidence. 38 U.S.C.A. § 105(a). Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. 38 C.F.R. §§ 3.1(n), 3.301; Libertine v. Brown, 9 Vet. App. 521 (1996). Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs or the intentional use of prescription or non- prescription drugs (including prescription drugs that are illegally or illicitly obtained) for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301. Here, it is undisputed the Veteran died on May [redacted], 2005, so while on active duty. However, the death certificate lists multiple drug toxicity/overdose, including alprazolam, hydrocodone, and oxycodone, as the cause of his death. The service department (Army) initially determined in April 2006 that his death was incurred in the line of duty. However, following further investigation, the Army issued a May 2006 memorandum in which it determined his death instead was not in the line of duty and was due to his misconduct. In its memorandum, the Army stated that an investigation had revealed the Veteran was of sound mind at the time that death occurred. The death certificate listed multiple drug toxicity/overdose as the cause of death. The Army also found that he had not been prescribed any of the medications (hydrocodone, oxycodone, alprazolam) involved in his overdose. Additional statements from the Veteran's widow, supervisor, and criminal investigation agents noted that he had abused prescription drugs over a long period of time, occasionally mixing them with alcohol. The memorandum also noted that his long time physician, Dr. P., had stated that the Veteran was using 5 or 6 times the doses of some medications he was prescribed. It concluded that, because he voluntarily had ingested illegally obtained drugs that caused his death, his death was not in the line of duty, rather, due to his misconduct. But contrary to that determination by the Army, the Board's review of the Veteran's STRs reveals that he was, in fact, prescribed hydrocodone and oxycodone shortly before his death. A medication profile lists a prescription for oxycodone that was filled on March 13, 2005, so less than two months before his death. This is consistent with a record from March 10, 2005, showing he was seen for complaints of back pain. In the "plan" section of that record, the treating physician wrote, "[c]ontinue oxycodone at no more than 8/day..." The medication profile also lists a prescription for hydrocodone filled April 4, 2005, so one month before the Veteran's death. This is consistent with a record of the same date showing he was seen again for back pain. The treating physician on that day wrote, "[r]efill hydrocodone today..." Additional records generated between April 4, 2005 and May [redacted], 2005, the date of the Veteran's death, show hydrocodone listed among his prescribed medications. Therefore, based on the information contained in his STRs, and contrary to the findings of the Army's line-of-duty determination, the Board finds that he was legitimately prescribed hydrocodone and oxycodone shortly before his death. His death certificate also listed alprazolam as one of the drugs contributing to his death. The medication profile in the records concerning his service shows he was most recently prescribed alprazolam on November 5, 2004, so about 6 months prior to his death. Given the amount of time between his last prescription of alprazolam and his death, it is possible that he did not have an up-to-date prescription for that drug when he overdosed. However, the death certificate, as well as a May 2005 coroner's report, clearly states that his death was due to the combined effect or toxicity of the three drugs in his system. Notably, a toxicology report generated by the coroner observed the Veteran's blood contained .98 mg/L of oxycodone, .28 mg/L of hydrocodone, and .052 mg/L of alprazolam. In other words, the two medications he was prescribed shortly before his death, oxycodone and hydrocodone, were present in his system in much greater quantities than alprazolam, which itself was prescribed just 6 months before his death. This evidence also weighs against finding that his death was due solely to the use of illegally obtained drugs, in other words willful misconduct. Finally, the May 2006 line-of-duty determination also noted statements from the Veteran's widow and others acknowledging he had a history of prescription drug abuse and would occasionally mix them with alcohol. However, the May 2005 toxicology clarified there was no ethanol detected in the Veteran's blood or urine. Therefore, he cannot be said to have abused alcohol at the time of his overdose. The Board also has considered the reports of prior prescription drug abuse. But given the aforementioned findings that he was prescribed two of the medications in question shortly before his death, so they were not illegally obtained, and in light of the fact there was no alcohol in his system at the time of his death, the statements regarding a history of prescription drug abuse, alone, do not rebut the presumption that he death while on active duty was in the line of duty. In other words, a history of prescription drug abuse does not establish by a preponderance of the evidence that he necessarily was abusing his prescribed drugs at the time of his death in May 2005. Because the presumption has not been rebutted, service connection for the cause of his death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs