Citation Nr: 1334565 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-32 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. He died in October 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO) which denied the issue on appeal. In April 2012, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in October 2008 from a hepatocellular carcinoma with metastasis, due to or as a consequence of cirrhosis. 2. At the time of the Veteran's death, service connection had been established for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, associated with diabetes mellitus, type II, rated as 10 percent disabling; peripheral neuropathy of the right upper extremity, associated with diabetes mellitus, type II, rated as 10 percent disabling; and erectile dysfunction, associated with diabetes mellitus, type II, rated as noncompensably disabling. His combined rating was 80 percent. A total rating based upon individual unemployability (TDIU) was granted effective from September 2005. 3. The competent and credible evidence demonstrates that the Veteran's substance abuse was proximately due to his service-connected PTSD; and, this substance abuse materially and substantially caused his liver disease (cirrhosis) which caused his hepatocellular carcinoma, which ultimately led to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5103, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2013). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it 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)(1). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. The evidence must show: (1) the existence of a disability at the time of the Veteran's death; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a) (2011); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on this secondary basis, there must have been (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran served on active duty from January 1966 to January 1968. He died in October 2008 at the age of 62. According to his death certificate, the primary cause of death was hepatocellular carcinoma due to or as a consequence of cirrhosis. At the time of the Veteran's death, service connection had been established for PTSD, rated as 50 percent disabling; diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the left upper extremity, associated with diabetes mellitus, type II, rated as 10 percent disabling; peripheral neuropathy of the right upper extremity, associated with diabetes mellitus, type II, rated as 10 percent disabling; and erectile dysfunction, associated with diabetes mellitus, type II, rated as noncompensably disabling. His combined rating was 80 percent. He was also in receipt of a TDIU. It is the appellant's primary contention that the Veteran's service-connected PTSD caused a battle with substance abuse (alcoholism) and that his substance abuse impacted his physical health, causing cirrhosis of his liver which materially contributed to his fatal hepatocellular carcinoma. VA medical records from 2003 to the time of his death showed treatment by VA for the Veteran's PTSD and his cirrhosis of the liver. The Veteran often indicated that he previously drank a lot to escape and escape his life in general. He was noted to minimize his drinking but a May 2005 VA examination report indicated that he had a substance abuse pattern which led to a cirrhotic liver and the drinking pattern was clearly consistent with abuse and dependence. He was also prescribed medication for treatment for his service-connected PTSD. The appellant testified at a Travel Board hearing in April 2012. She testified that the Veteran was a combat medic in Vietnam and that he was awarded a combat medic badge. She stated that he was diagnosed with cirrhosis of the liver from heavy drinking. She noted that he had been a drinker since age 19 and he drank heavily. Prior to his death, he drank 2 to 3 times a week and used alcohol to help him sleep. He drank until he was inebriated and according to the appellant, when he did not drink, he had chronic disturbed sleep. In April 2012, a medical opinion was submitted to VA from the Veteran's private physician, D.E.H., MD. He stated that the Veteran was a corpsman in Vietnam and was involved in many firefights. He saw many soldiers and friends killed and wounded, and according to his physician, these memories haunted him for the rest of his life. He also indicated that the Veteran denied drinking unless pinned down, then he admitted to heavy drinking. Drinking was a mechanism used to relieve his memories of combat in Vietnam. In the opinion of Dr. D.E.H., the Veteran's liver disease and ultimate death was likely due to his heavy alcohol intake due to his service-connected PTSD. The Board has considered the statements made by the appellant that the Veteran's PTSD caused the Veteran's continuous battle with substance abuse. It is important to note that pursuant to 38 U.S.C.A. § 1110, "no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs." VA regulation defines the frequent use of drugs to the point of addiction as willful misconduct, but also notes that "where the use of drugs or addiction thereto results from a service-connected disability, it will not be considered of misconduct origin." 38 C.F.R. § 3.301(c)(3) (2013). The Board acknowledges that the U.S. Court of Appeals for the Federal Circuit has held that 38 U.S.C.A. § 1110 does not preclude compensation for an alcohol or drug abuse disability that is secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed.Cir.2001). Secondary service connection shall be awarded for disabilities that are "proximately due to or the result of a service connected disease or injury." 38 C.F.R. § 3.310(a). In this case, the appellant has alleged, and it has been substantiated by the medical evidence of record and a medical opinion, that the Veteran's substance abuse addiction was caused by (secondary to) his service-connected PTSD. The Veteran regularly used alcohol to help him to sleep because of his PTSD nightmares. This ultimately resulted in his cirrhosis which ultimately caused hepatocellular carcinoma and his ultimate death. Therefore, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs