Citation Nr: 1335188 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-19 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Jill Mitchell, Attorney at Law ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to April 1974. He died in March 2008. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 administrative decision from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota. The appellant did not request a hearing before the Board. In August 2013, the appellant's representative submitted additional argument. No evidence was submitted with that statement. There is no requirement for waiver of initial RO consideration of the statement. 38 C.F.R. § 20.1304 (2013). FINDINGS OF FACT 1. The Veteran died on March [redacted], 2008. The original certificate of death identifies the immediate cause of death as heroin and ethanol toxicity. 2. A request to amend the certificate of death, which identifies the immediate cause of death as heroin and ethanol toxicity due to (or as a consequence of) posttraumatic stress disorder, was denied by the State of Texas. 3. At the time of his death, the Veteran was service-connected for hepatitis C with end stage liver disease, rated as 100 percent disabling effective November 5, 1997. 4. Service-connected hepatitis C with end stage liver disease did not contribute substantially or materially to the Veteran's cause of death. 5. At the time of his death, the Veteran did not have a pending claim for VA benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2012). 2. The criteria for DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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 DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In a letter dated January 2013, and pursuant to the Board's November 2012 remand directives, VA informed the appellant of the evidence necessary to substantiate her claim for DIC benefits, evidence VA would reasonably seek to obtain, and information and evidence for which the appellant was responsible. The January 2013 letter provided notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The January 2013 VCAA letter also included a statement of the conditions for which the Veteran was service-connected at the time of his death in accordance with Hupp. Thus, VA has satisfied its duty to notify the appellant. The case was last readjudicated in a February 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that a notice defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). In addition, all relevant, identified, and available evidence has been obtained. The Veteran's service treatment records, certificate of death, amended certificate of death, VA and private treatment records, and the appellant's lay statements has been associated with the claims file. Pursuant to the Board's November 2012 remand, the RO was asked to obtain Social Security Administration (SSA) disability records pertaining to the Veteran. In response, SSA notified the RO that the Veteran's records were unavailable as they had been destroyed. Accordingly, the Board finds that VA has satisfied the duty to assist the appellant. Further, the Unites States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. A VA medical opinion was obtained in November 2011 to aid in determining the cause of the Veteran's death. A supplemental opinion was rendered in December 2011. The Board finds that the December 2011 VA medical opinion is adequate for the purposes of adjudication as it includes adequate statements of reasons and bases based on an accurate factual background as established by the evidence of record. For these reasons, the Board finds that the duties to notify and assist the appellant in substantiating her claim have been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As to the issue of accrued benefits, the law and not the facts are dispositive, and the provisions of the VCAA do not apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Factual Background The Veteran died in March 2008 and the appellant filed a claim for DIC benefits in May 2009. The record includes two death certificates. The first, certified by Dr. P, lists the immediate cause of death as "Heroin and Ethanol Toxicity." A subsequent amended death certificate, certified by the Veteran's treating physician, Dr. K, lists the immediate cause of death as heroin and ethanol toxicity due to or as a consequence of posttraumatic stress disorder. Dr. K also noted other significant conditions contributing to the Veteran's death, including: "chronic pain from reflex sympathetic dystrophy following renal cell carcinoma resection and liver transplantation due to Hepatitis C." The record also includes references of statements from the appellant to Dr. K noting that a request to accept the amended death certificate, certified by Dr. K, was denied by the State of Texas. A review of the Veteran's treatment records reveals that Dr. K at the San Antonio VA Medical Center (VAMC) was the Veteran's primary care physician for approximately 10 years preceding his death. In October 2011, the RO contacted Dr. K by telephone concerning the amended death certificate that he had submitted. The RO reported that during the conversation, Dr. K stated that the appellant had approached him and had asked him to amend the Veteran's death certificate. Dr. K further stated that in the State of Texas, only the physician who performed the autopsy could amend the death certificate. In November 2011, the RO sent the Veteran's claims file to the VAMC to Dr. K's attention for review and an opinion regarding his revision to the death certificate; however, the opinion was completed by a Dr. P, and not Dr. K. As a result, the RO again sent the claims file to Dr. K. In a December 2011 medical opinion, Dr. K noted that in July 2008, he was approached by the appellant to amend the Veteran's death certificate and completed the amendment based on the information available to him on that date. He further stated that, on a later date, he was informed by the appellant that the request to amend the death certificate had been denied by the State of Texas. Moreover, Dr. K's December 2011 report stated that during a subsequent discussion with the Veteran's hematologist, he was informed that cocaine had been detected in a blood sample from the Veteran that was taken during an emergency room visit after a motor vehicle accident. Dr. K then opined that, based on the additional evidence, the combined heroin and ethanol toxicity was the "sole cause" of the Veteran's death. The initial medical opinion from Dr. P stated that the Veteran's cause of death, stated as heroin and ethanol toxicity had a contributing cause from a series of events that began as service-connection. Specifically, he opined that the Veteran experienced reflex sympathetic dystrophy stemming from the service-connected hepatitis which in turn caused the Veteran to take heroin and alcohol for pain relief. Further, a review of VA treatment record reveals that throughout his years of treatment, the Veteran denied the use of alcohol and drugs. That notwithstanding, in an August 1996 treatment record from Dr. Z, the Veteran reported drinking 1/2 gallon of vodka per week. In a September 1996 treatment record from Dr. Z, the listed "problem" was ethanol abuse. A VA treatment record dated October 2006 reveals that the Veteran was in a motor vehicle accident where toxicology results showed opiates, barbiturates, ethanol, and cocaine in his blood. In a March [redacted], 2008 VA treatment record, dated six days prior to the Veteran's death, a urine screen was positive for cocaine which suggested use within the last 72 hours. Despite objective evidence of drug and alcohol use, the evidence of record does not demonstrate that the Veteran reported using drugs or alcohol for pain relief or self-medication. Service Connection for the Cause of the Veteran's Death Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the 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. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. The appellant maintains that the Veteran's death was related to service-connected hepatitis C disorder which purportedly caused his death. Essentially, the appellant maintains that the Veteran used drugs and alcohol to treat the pain associated with his hepatitis C and end stage liver disease. See appellant's May 2010 statement. The Veteran died in March 2008. At the time of the Veteran's death, service connection was in effect for hepatitis C with end stage liver disease, rated as 100 percent disabling, effective November 5, 1997. The Board finds that the most probative death certificate of record is the original death certificate which listed the immediate cause of death as heroin and ethanol toxicity. Although the Board acknowledges the amended death certificate, listing the immediate cause of death as heroin and ethanol toxicity due to or as a consequence of posttraumatic stress disorder and with other significant conditions contributing to death, including: chronic pain from reflex sympathetic dystrophy following renal cell carcinoma resection and liver transplantation due to Hepatitis C, the Board does not accept the amended death certificate as probative evidence. As mentioned above, the request to certify the amended death certificate was rejected by the State of Texas, purportedly because the amendment to the death certificate was not made by the doctor who performed the autopsy. Further, Dr. K, who had treated the Veteran for 10 years and who made the initial amendment to the death certificate, withdrew his opinion regarding the Veteran's cause of death in a later December 2011 medical opinion. Moreover, Dr. P's opinion, which confirmed the amended death certificate, is of little probative weight as Dr. P was neither the doctor who certified the initial death certificate nor was he the Veteran's treating physician. For these reasons, the Board finds that the Veteran's immediate cause of death was heroin and ethanol toxicity as listed on the original death certificate. As explained in detail above, in order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused the death or substantially or materially contributed to it. 38 U.S.C.A. § 1310. Here, the Veteran was not service-connected for heroin or ethanol abuse, at the time of his death. Further, there is no probative evidence of record showing that the Veteran's service-connected hepatitis C with end stage liver disease was the underlying cause of death or etiologically related thereto. As noted in the December 2011 medical opinion, which the Board has found to be highly probative, the combined heroin and ethanol toxicity was the sole cause of the Veteran's death. The Board recognizes that the appellant believes her husband's death was related to his service-connected disability. As a layperson, however, she is not qualified to offer a medical opinion as complex as cause of death from heroin and alcohol. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (which stated that 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability.); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). While she is competent to report the symptoms that she observed, she is not competent to opine that the service-connected hepatitis C with end stage liver disease caused or contributed to cause death or that the cause of death and contributing conditions are related to service or are due to or aggravated by a service-connected disability. These are complex medical matters beyond a lay person's ability to observe. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has considered the doctrine of reasonable doubt, but for the reasons just expounded, finds it to be inapplicable, as the record does not provide an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 3.102. DIC under 38 U.S.C.A. § 1318 A surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran was (1) continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of "hypothetical entitlement" to benefits raised for the first time after a veteran's death. See Rodriguez v. Nicholson, 511 F.3d 1147 (Fed. Cir. 2008) (the revised provisions of 38 C.F.R. § 3.22, as amended in 2000, may be applied to claims for DIC benefits filed by survivors before the amendment took effect). See also Kernea v. Shinseki, No. 2012-7142, 2013 WL 3942350 (Fed. Cir. Aug. 1, 2013). Here, the Veteran was in receipt of a total rating for his service-connected hepatitis C with end stage liver disease from November 5, 1997; his 100 percent rating was in effect for more than 10 years at the time of his death in March [redacted], 2008. As such, the appellant has met one of the provisions under 38 U.S.C.A. § 1318(b) (i.e., Veteran was continuously rated totally disabled for the 10 years immediately preceding death). That notwithstanding, the Board finds that the Veteran's death was the result of willful misconduct; as such, the appellant is barred from receiving benefits. 38 C.F.R. § 3.22(a)(1). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). The Board acknowledges that the simple drinking of alcoholic beverage is not of itself willful misconduct; however, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse means 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. 38 C.F.R. § 3.301(d). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(3). Here, the Board finds that the Veteran's deliberate use of heroin and alcohol resulted proximately and immediately to his death and, the Veteran's death, is a result of willful misconduct. See 38 C.F.R. § 3.301(c)(3);see also Veteran's certificate of death noting immediate cause of death as heroin and ethanol toxicity. Further, despite the appellant's contentions that the Veteran was using drugs and alcohol to alleviate pain associated with his service-connected disability, the Board finds these assertions not credible as the evidence of record demonstrates a long history of drug and alcohol use unrelated to his service-connected disability. For example, treatment records from September 1977 and October 1977 reveal that the Veteran was admitted to a state hospital for an alcohol and drug problem. In these treatment records, the Veteran reported having had a drinking problem for the last three years and reported the use of mood-altering drugs for 11 years. Also, despite being advised to stop drinking alcohol due to his liver condition, in an August 1996 treatment record from Dr. Z, the Veteran reported drinking, on average, 1/2 gallon of vodka peer week. In a September 1996 treatment record from Dr. Z, the listed "problem" was ethanol abuse and the Veteran reported having recently bought a pint of alcohol and having three drinks after a family dispute. In an October 2006 VA treatment record, the VA physician noted that the Veteran had recently been involved in a motor vehicle accident where opiates, barbiturates, ethanol, and cocaine were found. When asked, the Veteran reported that he consumed three drinks leading to the motor vehicle accident and said that his hair was analyzed for drug use, but results were negative. However, the VA physician noted that when asked, the Veteran did not want to provide the purported results from the drug test to the VA physician. In a March [redacted], 2008 VA treatment record, dated six days prior to the Veteran's death, a urine screen was positive for cocaine which suggested use within the last 72 hours. Six days later, on March [redacted], 2008, the Veteran accidently died of heroin and ethanol toxicity. See Veteran's original death certificate. Further, at no time during treatment did the Veteran report using alcohol or drugs to alleviate his pain or self-medicate his service-connected disability. For these reasons, the Board finds that the appellant's statements that the Veteran was using drugs and alcohol to self-treat his service-connected disability are not credible. The appellant also contends that because the Veteran's death was marked as "accidental" on his death certificate, this demonstrates that his death was not the result of willful misconduct. See appellant's VA Form 9 dated May 2010. The Board disagrees with this contention as the notation of "accidental" on the Veteran's death certificate is not dispositive as to whether he engaged in willful misconduct. The fact that the Veteran did not intend to terminate his life at the time of death does not negate the fact that, at the time of the injury, he was in an act of willful misconduct (i.e., abusing heroin and alcohol). As discussed above, the Board has found the appellant's contentions that the Veteran was using drugs and alcohol to self-treat his service-connected disability not credible and outweighed by the evidence of record. For these reasons, the Board finds that the Veteran's use of heroin and alcohol fall under the guidelines of willful misconduct and cannot serve as a basis for the grant of benefits for the appellant. For these reasons, the Board finds that the weight of the competent, probative, and credible evidence of record demonstrates that the Veteran's accidental death was the result of willful misconduct, that is, he used drugs and alcohol which resulted proximately and immediately to his death. As such, the appellant is barred from receiving benefits. See 38 C.F.R. § 3.22(a)(1). Accrued Benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). There is no basis for an accrued benefits claim, unless the veteran from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The appellant has not made any specific contentions regarding entitlement to accrued benefits. The claims file does not contain any documents that could be construed as a formal or informal claim for benefits that were filed prior to his death, but not adjudicated. Therefore, the Board finds that there was no pending claim at the time of the Veteran's death. Further, applications for accrued benefits must be filed within one year of death. 38 C.F.R. § 3.1000(c). The Veteran died in March 2008, and the appellant did not file a claim for accrued benefits until May 2009. Thus, the Board finds that the appellant's claim for accrued benefits was not timely filed. Because the Veteran had no claims pending at the time of his death, and the appellant's claim for accrued benefits was not timely filed, the criteria for entitlement to accrued benefits are not met. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death is denied. DIC under 38 U.S.C.A. § 1318 is denied. Entitlement to accrued benefits is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs