Citation Nr: 1420003 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 07-00 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to service connection for dementia, for accrued benefit purposes. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Appellant and D.B. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to February 1946. He died in 2005. The appellant is his surviving spouse. This matter came before the Board of Veterans' Appeals (Board) on appeal of from a May 2006 rating decision of the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2009, the Board denied the appellant's claim for service connection for the Veteran's cause of death. The appellant subsequently appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court). The appellant and VA filed a Joint Motion for Remand with the Court. In a June 2010 Order, the Court remanded the claim to the Board for compliance with the instructions in the 2010 Joint Motion for Remand. During the pendency of her appeal, the appellant clarified that her application for death compensation and accrued benefits specifically included claims of entitlement to service connection for dementia and a somatization disorder and claims of entitlement to a disability rating in excess of 10 percent for schizophrenia and to a special monthly pension. The Board notes that the RO timely received the appellant's claims for accrued benefits in January 2006, which was within one year of the Veteran's death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. Entitlement to a special monthly pension was granted in an April 2006 rating decision and the RO adjudicated the remaining three (3) claims in a December 2008 rating decision. The appellant submitted a timely Notice of Disagreement (NOD) with the RO's July 2008 denial and the RO issued a statement of the case in March 2010. The RO did not receive a substantive appeal; however, given that the RO took no steps to close the appeal, the Board waived the requirement that there be a substantive appeal (see September 2010 Board decision). In the September 2010 decision, the Board denied the service connection claim for a somatization disorder and the increased rating claim for schizophrenia, both for accrued benefit purposes. In addition, the Board remanded the issue of entitlement to service connection for cause of death and did not address the matter of entitlement to service connection for dementia, finding that it was inextricably intertwined with the remanded claim. In July 2011, the appellant and D.B. appeared before the below-signed Veterans Law Judge in a videoconference hearing. A transcript of that hearing is of record. In September 2011, the Board denied the appellant's claims of entitlement to service connection for the cause of the Veteran's death and for dementia, for accrued benefits purposes. The appellant subsequently appealed the September 2011 Board decision to the Court. In a May 2012 Order, the Court remanded the claims to the Board for compliance with the instructions in the 2012 Joint Motion for Remand. In March 2013, referred the claim for a Veterans Health Administration (VHA) medical expert opinion and such opinion was received in June 2013. To resolve the dispositive issues in this case, the Board in November 2013 sought an additional medical opinion, but through an independent source rather than through the VHA. In April 2014, the Board received an additional medical opinion from the appellant, along with a waiver of initial RO consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in 2005. The death certificate lists the immediate cause of death as dementia, due to vascular disease. Arteriosclerotic heart disease and hypertension were listed as significant conditions contributing to, but not resulting in the underlying cause of death. 2. Service connection was in effect for paranoid schizophrenia and a tender scar residual of shrapnel wounds during the Veteran's lifetime. 3. At the time of the Veteran's death, there was a pending claim for service connection for dementia, as relevant, that was not finally adjudicated. 4. Resolving any doubt in the appellant's favor, the Veteran's alcohol abuse was caused or aggravated by his service-connected schizophrenia and contributed materially to the development of his fatal dementia. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2013). 2. The criteria for service connection for dementia, for accrued benefit purposes, have been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Pertinent Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388 , 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection in this regard, the veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Certain survivors of a deceased veteran or VA claimant are eligible to receive from VA payments of "accrued benefits" based upon the deceased veteran's or claimant's statutory entitlement to such benefits. 38 U.S.C.A. § 5121(c). An accrued benefit is a periodic payment to "to which [the veteran] was entitled at death under existing ratings or decisions, or ... based on evidence in the file at date of death ... and due and unpaid." Id.; see also 38 C.F.R. § 3.1000. Applications for accrued benefits must be filed within one year after date of death. 38 U.S.C.A. § 5121(c). 38 U.S.C.A. 5121(a)(2)(A) provides that upon the death of a veteran payment of accrued benefits will be made to the surviving spouse of the veteran, if he or she is living. For a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death or else be entitled to benefits under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed.Cir.1998); Zevalkink v. Brown, 102 F.3d 1236, 1241 (Fed. Cir .1996) ("[A]n accrued benefits claim is derivative of the veteran's claim for service connection, i.e., the claimant's entitlement is based on the veteran's entitlement."). Whether accrued benefits should be awarded "must be determined based on evidence that was either physically or constructively in the veteran's file at the time of his death." Ralston v. West, 13 Vet. App. 108, 113 (1999); see Hayes v. Brown, 4 Vet. App. 353, 358-59 (1993); 38 C.F.R. § 3.1000(d)(4) (defining "[e]vidence in the file at date of death"). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3 .1000(d)(4). When examining clinicians are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a nonservice-connected disorder, VA must consider all of the symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. Analysis In this decision, the Board grants in full the claims of entitlement to service connection for the cause of the Veteran's death, and service connection for dementia, for the purpose of accrued benefits. As a result, no further discussion of VA's duty to notify and assist is required with respect to these claims. The appellant essentially asserts that the Veteran's reported cause of death was etiologically related to his service-connected paranoid schizophrenia. By way of history, the record shows that the Veteran was treated for, and diagnosed with, schizophrenia during service. A January 1946 certificate of disability for discharge reflects that he had experienced an acute paranoid type schizophrenic reaction from which he had recovered. He was discharged from service in the following month. The evidence also reflects that the Veteran drank excessively. He subsequently died in 2005; the death certificate lists the immediate cause of death as dementia, due to vascular disease. Arteriosclerotic heart disease and hypertension were listed as significant conditions contributing to, but not resulting in the underlying cause of death. The record contains multiple opinions, both favorable and unfavorable, as to whether the Veteran's cause of death is related to his military service or a service-connected disability. An October 2010 VA opinion and December 2010 addendum noted that the Veteran's excessive drinking could not be attributed to his service-connected schizophrenia. The examiner explained that the treatment record showed that the Veteran had only experienced a schizophreniform disorder for a six (6) month period of time during service and did not have any subsequent diagnoses of schizophrenia. In July 2011, D.N.G, M.D., a private physician wrote a medical opinion as to the etiology of the Veteran's excessive drinking. He stated that he had discussed the Veteran's medical history with the appellant and understood that the Veteran was discharged from the service with a diagnosis of schizophrenia. He stated that the Veteran's sister had informed the appellant that the Veteran was treated at a hospital for bipolar disease shortly after his discharge from service. The physician noted that the Veteran began a "life-long" problem of drinking when he was in the service. He stated that "in [his] experience it was common in the forties, fifties, sixties, and even seventies for patients with chronic psychiatric disorders to self-medicate with alcohol." Based on that experience, the physician opined that "most likely due to lack of effective treatment [of his mental disorder] at that time [the Veteran] began self-medicating with alcohol and subsequently became addicted." The physician concluded that the Veteran's chronic alcohol use had a "significant causative affect" on his dementia. In a December 2012 medical opinion, Michael L. Cesta, MD, FACP, determined that although the Veteran's in-service diagnosed schizophrenia was found to have resolved, the disorder does not resolve; the Veteran essentially self-medicated and became alcohol dependent and that dependence led to hypertension, vascular compromise and dementia. However, a June 2013 medical opinion by a VA psychiatrist noted that the Veteran had been found in 1946 to have "recovered" from his in-service schizophrenic reaction; that he denied psychiatric symptoms in 1947 and 1949 and that although he was noted to have slow mental deterioration in 1999 and diagnosed with dementia in 2000 his symptoms were not the same as those present in 1945. Pursuant to the Board's request, an independent medical opinion (IME) was obtained in December 2013 from a psychiatrist associated with Wisconsin Psychiatric Institute & Clinics. That psychiatrist determined that it is unlikely that the Veteran's hypertension or dementia were related to his service-connected schizophrenia but did determine that the Veteran's hypertension and dementia were likely connected to, or exacerbated by, his abuse of alcohol which he felt may well have started during service. After receiving the independent medical opinion, the appellant submitted an addendum from Dr. M.L.C. who had an opportunity to review for the second time the Veteran's medical records, as well as the 2013 IME. In his March 2014 addendum, Dr. M.L.C. found "significant" and "gaping" flaws in the 2013 IME for various reasons, and reiterated his opinion that the Veteran self-medicated with alcohol due to his psychiatric illness and that the alcohol dependence led to hypertension, vascular compromise, and dementia. In addition, Dr. M.L.C. concluded that the Veteran's schizophrenia symptoms had persisted throughout the majority of his life; that he successfully utilized alcohol to mitigate the majority of his symptoms which masked the more florid aspects of the disease; and that his psychiatric symptoms led to the development of a severe substance abuse disorder, vascular disease and directly to his dementia and ultimately to his demise. In light of the conflicting medical opinions as described above, the Board finds that the medical evidence is at least in equipoise to show that the Veteran continued to experience schizophrenia after service discharge, that his alcohol abuse was caused or aggravated by his schizophrenia, and that his alcohol abuse contributed substantially to the development of his fatal dementia. The evidence further shows without contradiction that the Veteran died as a consequence of dementia. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With resolution of any doubt in her favor, the Board will grant the appellant's service connection claim for dementia for the purpose of accrued benefits, as well as the service connection claim for the cause of the Veteran's death. ORDER Service connection for cause of death is granted. Service connection for dementia, for accrued benefit purposes, is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs