Citation Nr: 1341297 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-18 776 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Pension Management Center (PMC) at the Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service-connected burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. He died in May 2009. The appellant is his brother and seeks reimbursement for burial expenses. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision of the PMC in St. Paul, Minnesota, which granted entitlement to nonservice-connected burial benefits, a plot allowance, and transportation expense reimbursement. The Board must clarify the issue on appeal. The appellant's August 2009 Notice of Disagreement requested a "service-connected burial allowance." The PMC issued an April 2010 Statement of the Case identifying the issue as service connection for the cause of the Veteran's death. The appellant's representative also listed the issue as service connection for the cause of the Veteran's death. The determination as to whether service-connected burial benefits are warranted requires analysis of service connection for the cause of the Veteran's death, but the appellant is not an eligible service connection for the cause of the Veteran's death claimant under 38 U.S.C.A. § 1310 because he is not a surviving spouse, child, or parent. The Board concludes that the issue is appropriately characterized as entitlement to service-connected burial benefits because this is the benefit the appellant actually requested and the benefit for which he is eligible. FINDINGS OF FACT 1. The appellant bore the cost of the Veteran's final expenses. 2. The Veteran died in May 2009 due to septic complications of intravenous drug use, with osteomyelitis and intravenous drug use contributing to the cause of death. 3. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 100 percent disabling, and for vocal cord paralysis, rated as noncompensably disabling. 4. The Veteran's service-connected PTSD contributed materially to his death. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for payment of service-connected burial benefits have been met. 38 U.S.C.A. §§ 2302, 2303, 2304, 2307 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1600, 3.1601 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Nonservice-connected burial benefits have already been awarded in this case. The appellant contends that service-connected burial benefits are warranted. The appellant contends that the Veteran abused intravenous drugs as a form of self-medication for his service-connected PTSD and that resulted in his death. At the time of the Veteran's death, service connection was in effect for PTSD, rated as 100 percent disabling, and for vocal cord paralysis under 38 U.S.C.A. § 1151, rated as noncompensably disabling. The Veteran was service connected for PTSD as a result of stressors occurring while he served in Vietnam. If a veteran's death is the result of a service-connected disability, burial benefits may be paid for the veteran's final expenses in an amount not to exceed $2,000. 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a). The appellant countersigned the May 2009 application for burial benefits and is financially responsible for the remaining sum. See 38 C.F.R. § 3.1601(a). An award would entitle the appellant to reimbursement of the difference between $1683 and $764, the sum already paid. See 38 U.S.C.A. § 2307; see also VAOPGCPREC 15-95. 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2013). No compensation shall be paid if the death or disability is the result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. § 3.301 (2013). Service connection for compensation purposes is permitted for an alcohol or drug abuse disability acquired as secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). The Veteran's death certificate states that he died in May 2009 due to septic complications of intravenous drug use, with osteomyelitis and intravenous drug use contributing to the cause of death. The Veteran died while hospitalized at VA. The death diagnosis was cardiopulmonary arrest, liver cirrhosis secondary to alcohol and hepatitis, Candida Albicans at T10-T11 with osteomyelitis, and multi-organ system failure. A May 11, 2009 medicine inpatient note states that the Veteran had end stage liver disease identified as liver cirrhosis, renal hyponatremia, and had a large right sided pleural effusion, all likely related to underlying cirrhosis. The RO obtained two VA medical opinions in connection with this case. The first, from December 2009, indicates that the cirrhosis and osteomyelitis caused multi-organ system failure which resulted in cardiopulmonary arrest. The cirrhosis and osteomyelitis were attributed to polysubstance abuse. The examiner stated that polysubstance abuse is not a symptom of PTSD and concluded that the PTSD did not likely cause or contribute to the cause of the Veteran's death. The Board notes that substance abuse does not need to be a symptom of PTSD to be caused or contributed to substantially by PTSD. The Board is not persuaded that the examiner applied the correct standard in offering this opinion. The examiner provided another opinion in January 2010 after having been provided the claims file. The examiner indicated that a September 1988 chemical dependency treatment note indicates that the Veteran had abused a variety of substances beginning in the late 1960's and early 1970's, with only alcohol and cannabis abuse in 1988. The examiner also noted that a May 2009 death discharge note stated that the Veteran began drinking at age 17 and that the substance abuse began prior to his PTSD. The examiner again concluded that the PTSD did not likely cause or contribute to the cause of the Veteran's death. The Board finds this opinion unpersuasive as well. The examiner did not explain the conclusion that the substance abuse began prior to his PTSD. The Veteran entered active service at age 17, such that his substance abuse coincides with service. A February 1989 psychiatric evaluation report states that the Veteran reported psychiatric symptoms since leaving Vietnam in 1969. Although the Veteran was not diagnosed with PTSD until many years after service, this does not mean PTSD was not present during and persistently since service. The lack of explanation reduces the probative value of the January 2010 opinion. The Veteran's extensive psychiatric treatment records establish a relationship between PTSD symptoms and alcohol and drug abuse. A June 1983 VA psychiatric evaluation indicated that the Veteran had PTSD and substance abuse, possibly secondary to PTSD. The Veteran had a history of becoming addicted to heroin while in the military and going into detoxification shortly after separation. The February 1989 discharge summary indicates that the Veteran had begun using a variety of substances while in Vietnam. A June 1989 VA examination report indicates that the Veteran had PTSD with suicide attempts involving cutting his wrists and overdosing on heroin in 1974. A January 1990 treatment summary from a licensed psychologist states that the Veteran's previous PTSD coping mechanisms included drug dependence. A March 1991 discharge summary indicates that the Veteran was admitted the previous month for a variety of psychiatric symptoms and stating that he drank a lot in order to get to sleep. This is medical evidence tending to show that the Veteran's PTSD caused polysubstance abuse that ultimately caused his death. The evidence of record is at least in equipoise that the Veteran had service-connected PTSD, abused alcohol and drugs to cope with his PTSD symptoms, developed liver cirrhosis, renal hyponatremia, and a pleural effusion as least partially due to alcohol, and that the ensuing multi-organ system failure resulted in his death. Resolving reasonable doubt in the appellant's favor, the Board finds that the service-connected PTSD caused the Veteran's death. Consequently, the benefit-of-the-doubt rule applies, so the criteria for service-connected burial benefits are met. 38 U.S.C.A. §§ 2307, 5107(b); 38 C.F.R. §§ 3.102, 3.1600. As the Board has granted the appeal in full, discussion of VA's obligations to notify and assist claimants is moot. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). ORDER Service-connected burial benefits are granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs