Citation Nr: 1339764 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 05-23 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1971 and from January 1973 to March 1974, to include combat service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. This matter was previously before the Board in March 2009, January 2010 and December 2011 at which times the case was remanded for additional evidentiary and due process development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The appellant was scheduled for a hearing before a Veterans Law Judge at the RO, in January 2009, but failed to report and did not request that the hearing be rescheduled. Accordingly, all due process requirements have been met with respect to her hearing request. In April 2013, the Board requested an opinion from the Veterans Health Administration. See 38 C.F.R. § 20.901 (2013). The requested opinion was received at the Board in July 2013. In July 2013, the Board provided the appellant and her attorney a copy of the opinion and offered 60 days for review and submission of any additional argument or evidence. FINDINGS OF FACT 1. The Veteran died in December 2003; his death certificate lists the immediate cause of death as sudden death associated with chronic hepatitis and pancreatitis. 2. The RO received a May 2005 note from the County Medical Examiner who signed the Veteran's death certificate reporting that the Veteran's death certificate was amended as of that date to show that PTSD was a contributing factor in his death. 3. At the time of the Veteran's death, service connection was in effect for PTSD rated 100 percent disabling. 4. The preponderance of the competent evidence of record is against linking the causes of the Veteran's death to his service or to his service-connected PTSD. CONCLUSION OF LAW The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In the instant case, VA notified the appellant in correspondence dated in March 2004, April 2009 and October 2010 of the information and evidence needed to substantiate and complete her claim. Thus, VA has met its duty to inform the claimant under the VCAA. This duty included delineating the evidence VA would assist in obtaining and the evidence it was expected that the appellant would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This case was most recently readjudicated in a January 2013 supplemental statement of the case. Hence, the case is ready for adjudication. II. Analysis Pertinent Law and Regulations In a claim of entitlement to service connection for the cause of the veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to service connection for hepatitis C, the Board notes that, in order for service connection to be established, there must be evidence that the Veteran was exposed to a known risk factor during service and that such exposure is the most likely cause of his hepatitis C. VA has recognized that risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine use, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. VBA letter 211B (98-110) November 30, 1998. Special considerations apply to claims involving alcohol or drug abuse. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse, effective for claims filed as in the instant case after October 31, 1990. Moreover, Section 8052 amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.1(m), 3.301(d). The VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The United States Court of Appeals for the Federal Circuit has held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F. 3d 1368, 1376 (Fed. Cir. 2001). Service connection for compensation purposes may, however, be awarded for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. However, a veteran can only recover if he is able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen, 237 F. 3d at 1381. Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. The Board has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (which stipulates that, "although interest may affect the credibility of testimony, it does not affect competency to testify"). Discussion In this case, at the time of the Veteran's death, he was service connected for posttraumatic stress disorder rated 100 percent disabling since September 1992. As such, the RO granted the appellant DIC benefits under 38 U.S.C.A. § 1318 in May 2004 for the Veteran's service-connected PTSD. The Veteran's original death certificate, dated in December 2003, shows that he died at home and the immediate cause of death was sudden death associated with chronic hepatitis and pancreatitis. An autopsy was not performed. As to whether chronic hepatitis and pancreatitis were manifested during the Veteran's active duty service, his service treatment records are silent for any complaints, treatments or diagnosis of these disabilities. Moreover, the evidence shows that he was diagnosed as having hepatitis C years after service, at some point between 1988 and 2004. Indeed, VA hospital records from as early as 1988 do not list Hepatitis C as a disability. In fact, a February 1988 VA Medical Certificate shows that the Veteran denied having hepatitis. The first notation of hepatitis C is a March 2004 letter from Dr. Tabachnick asserting that the Veteran suffered from Hepatitis C which was a major contributor to his death. Though he stated that the Veteran had been his patient for 16 years, he did not provide the date that Hepatitis C was diagnosed. As for pancreatitis, the first medical notation of this disability is the Veteran's December Death Certificate. A lengthy period without complaint or treatment after service suggests that there has not been a continuing of symptomatology. See Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000). The above notwithstanding, the incubation period for hepatitis C infection ranges between two and 26 weeks but onset of infection may be unrecognized for years because symptoms are not severe enough to require medical attention. VA Training Letter 98-110; VA Training Letter 98-35 (April 8, 1998). Thus, it follows that discussion of whether the Veteran had any in-service hepatitis C risk factors is required. In this regard, consideration has been given to Dr. Tabachnick's March 2004 opinion that the acquisition of hepatitis C was service related because the Veteran had no other possible causes of acquiring Hepatitis C since Vietnam and had been exposed to blood and other body fluid while overseas. Dr. Tabachnick said the latency of the disease placed its onset during his tour in Vietnam in 1968-71, and the Veteran was exposed frequently to blood and other body fluids while overseas. The Veteran's two tours of duty in Vietnam included combat service. As such, the report that he had been exposed to blood and other body fluid while overseas is consistent with his service. 38 U.S.C.A. § 1154(b). Significantly, however, Dr. Tabachnick's opinion relating the Veteran's acquisition of hepatitis C to his exposure to blood and other body fluids in service is of reduced probative value since it is based on an incomplete factual background. In this regard, Dr. Tabachnick reported that the Veteran was never an intravenous drug abuser. VA treatment records, however, clearly document the Veteran's history of drug use since service, to include the illicit use of speed, heroin, marijuana and cocaine. While it is not entirely clear from the evidence whether the drugs were taken intravenously or intranasally in service, as noted, risk factors for hepatitis C include both intravenous drug use and intranasal cocaine use. The fact that Dr. Tabachnick did not consider the risk factors associated with the Veteran's drug abuse when addressing the etiology of his hepatitis C greatly reduces the probative value of his opinion. That is, Dr. Tabachnick's opinion is not based on an accurate factual premise and therefore has little probative value. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet. App. 229 (1993) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); see also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.). There is also the opinion of a VA gastroenterologist who, in an August 2011 addendum, reported that intravenous drug use is the most common way of transmitting the hepatitis C virus and accounts for almost 70% of all new hepatitis C virus infections. She added that the hepatitis C virus has been found in approximately 85% to 100% of intravenous drug users and that other modes of acquiring infection were needle-stick injuries, contaminated medical equipment, blood spills. She said the risk for these types of infection was about 2%. She went on to acknowledge the Veteran's active contact in combat casualties and noted that the extent of contact does not specify if there was exposure to any of the above mentioned risk factors like blood spills. The gastroenterologist went on to opine that it was most likely that the Veteran's hepatitis C virus was acquired by drug use and it was not at least as likely as not that it was acquired by another modality given the lower percent, approximately 2%, of such cases. In light of the foregoing, the Board finds that the most probative and persuasive evidence as to the cause of the Veteran's hepatitis C consists of the VA medical opinions that relate the disease to the Veteran's drug abuse. Physicians reason that the Veteran's drug abuse was the strongest risk factor compared to any of the others and base their opinions on sound medical principles. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.). As noted, the law prohibits payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse, effective for claims filed as in the instant case after October 31, 1990. However, a veteran can recover if able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." 38 C.F.R. § 3.310; Allen v. Principi, 237 F. 3d 1368, 1376 (Fed. Cir. 2001). After carefully considering the positive and negative evidence on file is this regard, the Board finds that the preponderance of the competent evidence is against finding that the cause of the Veteran's death was related to his service-connected PTSD. The positive evidence includes a record received in June 2006, and dated in May 2005, from the county medical examiner who signed the Veteran's death certificate. The medical examiner stated that as of that date the Veteran's death certificate had been amended to show that PTSD was a contributing factor in his death. However, the physician gave no explanation for that amendment, made well over one year after the Veteran's death, and attempts to obtain the actual amended death certificate, as well as the medical examiner's rationale for that opinion, were unsuccessful. Accordingly, the Board finds that the May 2005 statement from the medical examiner is of low probative value. The positive evidence also includes a record from a trauma counselor who opined in February 2005 that severe and chronic PTSD "complicates any other condition that may be present" and "may contribute to the development of medical conditions". The VA trauma counselor's opinion is generic in nature and does specifically address the facts of the case nor relate the Veteran's PTSD to the cause of his death. Thus, it provides an insufficient basis for an award of service connection for the cause of the Veteran's death. See Winsett v. West, 11 Vet. App. 420, 424 (1998). See also Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). In addition, there is an article from the New England Journal of Medicine that the trauma counselor submitted entitled Protective and Damaging Effects of Stress Mediators. This article discusses the damaging effects of stress on the physiologic systems of the body. This article is not probative of this particular claim and similarly provides insufficient basis for an award of service connection for the cause of the Veteran's death. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion" (citing Sacks v. West, 11 Vet. App. 314, 317 (1998))); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995). The negative evidence includes the opinion of a VA psychiatrist in June 2009 who, after reviewing the Veteran's claims file, including the positive evidence discussed above, reported that there is no known medical evidence that sudden death from hepatitis or pancreatitis can be caused by PTSD. While the examiner went on to report that it is a fact that many individuals with severe and chronic PTSD do have simultaneous illnesses and diseases, he opined that there is no causal relationship between the Veteran's PTSD and his sudden death attributed to chronic hepatitis and pancreatitis. He explained that it is possible that in the past the Veteran's lifestyle and other aspects of his PTSD may have contributed to an overall diagnosis of hepatitis and pancreatitis and it is possible that his abuse of alcohol or other substances may be a contributing factor towards his ultimate diagnosis of hepatitis and pancreatitis, but he went on to state that there "is no way to make a statement to the effect that the veteran's [PTSD] either caused or contributed substantially to the death associated with chronic hepatitis and pancreatitis." He explained that veterans with these illnesses and a coexisting diagnosis of PTSD have been known to live and survive for many years and any sudden death instance "must be examined from a medical perspective and unless the veteran were to have taken his own life, there are no situations in which ...a sudden death can be attributed to a psychiatric condition of [PTSD]." The VA psychiatrist concluded by stating that he found no relationship between the Veteran's existing diagnosis of PTSD and his sudden death associated with chronic hepatitis and pancreatitis. He added that he had reviewed and discussed the case with a gastrointestinal specialist who was in agreement that the Veteran's PTSD cannot cause sudden death. With respect to the VA gastroenterologist, she not only found no link between the Veteran's sudden death and PTSD, but she also found no link between the Veteran's hepatitis and pancreatitis and PTSD. In this regard, she explained in July 2009 that either chronic hepatitis or pancreatitis could cause sudden death associated with severe upper gastrointestinal bleeding, severe acute pancreatitis and electrolyte abnormalities, but there was no evidence that these disabilities were caused by the Veteran's service connected PTSD. She explained that after extensive literature review, she concluded that there is no medical evidence to suggest that sudden death from hepatitis and pancreatitis can by caused by PTSD. She stated that PTSD neither caused nor contributed substantially or materially to the Veteran's death. She went on to remark that it was not at least as likely as not that the sudden death from hepatitis and pancreatitis was related to the Veteran's PTSD. She added that she was in agreement with the VA psychiatrist's opinion. There is also the VA medical opinion by a board-certified psychiatrist in July 2013 who opined that it was not at least as likely as not that the Veteran's history of alcohol and drug abuse was either caused or aggravated by his service-connected PTSD. The July 2013 psychiatrist explained that PTSD was acknowledged to be a risk factor for substance abuse and that evidence suggests that patients with PTSD self-medicate their symptoms by abusing substances. The psychiatrist went on to state that, however, risk does not imply causality and it had already been adjudicated that neither hepatitis nor pancreatitis was part of the physiology of PTSD. He said certain medical conditions such as hypertension as a consequence of hyperarousal, may, in fact be physiologically related to PTSD, but the choice to abuse substances, whether to self-medicate or otherwise, was not. In light of the evidence outlined above, the Board assigns the greatest probative value to the fully explanatory medical opinions provided by the July 2009 VA examiners and the July 2013 VA board-certified psychiatrist who reviewed the Veteran's medical records. Each of these examiners provided a clear rationale for their opinions that it was not at least as likely as not that the sudden death from hepatitis and pancreatitis was related to the Veteran's PTSD. Based on the foregoing, the Board finds that the probative and persuasive evidence of record preponderates against finding that the Veteran's service-connected PTSD caused, contributed to cause, or aided or lent assistance to the Veteran's demise. The Board acknowledges the arguments set forth by the appellant and her representative concerning the relationship between the Veteran's service-connected PTSD and the cause of his death; however, the matter of the relative contribution of PTSD to death is far outside the realm of lay expertise. In this case, the appellant simply does not possess the competence to offer her own opinion as to etiology. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Finally, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and as such the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs