Citation Nr: 1526226 Decision Date: 06/19/15 Archive Date: 06/26/15 DOCKET NO. 13-35 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Nancy L. Foti, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1960 to January 1964, from October 1964 to September 1967, and from September 1967 to December 1971. He was in receipt of the Purple Heart, among other military citations. He died in October 2010 at the age of 67. The appellant is his surviving spouse. FINDINGS OF FACT 1. The Veteran died in October 2010 of cardiac arrhythmia due to citalopram toxicity. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated at 70 percent; Parkinson's Disease, rated at 30 percent; cervical spine disc disease, rated at 20 percent; tinnitus, rated at 10 percent; and bilateral sensorineural hearing loss; rated at 0 percent. 3. Accidental overdose of medication prescribed for treatment of PTSD symptoms substantially or materially contributed to the Veteran's death. 4. The appeal for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is now moot. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2014). 2. Having been rendered moot by virtue of the award of service connection for the cause of the Veteran's death, the issue of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. §§ 1318, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Analysis for the Cause of the Veteran's Death The appellant seeks service connection for the cause of the Veteran's death. She contends that he died after accidentally overdosing on citalopram, a medication prescribed to treat service-connected PTSD. She asserts that the service-connected PTSD is a principal or contributory cause of his death. See, e.g., April 2011 VA Form 21-4138. Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). The service connected disability will be considered as the principal (primary) cause of death when such disability, 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). 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 order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, the Veteran died of cardiac arrhythmia due to citalopram toxicity in October 2010. At the time of his death, service connection was in effect for PTSD, rated at 70 percent; Parkinson's disease, rated at 30 percent; cervical spine disc disease, rated at 20 percent; tinnitus, rated at 10 percent; and bilateral sensorineural hearing loss; rated at 0 percent. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether service-connected PTSD contributed substantially or materially to the Veteran's death. Approximately five months before his death, he was hospitalized for increased symptoms of somnolence and hallucinations and was then noted to be taking prescribed citalopram (Celexa) for treatment of PTSD symptoms. See May 2010 hospitalization records. As noted above, citalopram toxicity was identified as the underlying cause of the Veteran's death. See October 2010 death certificate (noting the immediate cause of death as cardiac arrhythmia, the underlying cause of death as citalopram toxicity, and the ingestion of excess medication as how the injury resulting in death occurred); see also the October 2010 toxicology report (noting that the Veteran had greater than 6 micrograms/milliliters of citalopram in the urine at the time of his death). The Veteran's private treating medical provider opined that the medication used for management of PTSD led to his death. See February 2014 letter from the private treating physician (opining that PTSD medication, which was prescribed to treat an exacerbation of PTSD symptoms in 2010, led to the Veteran's death). Compensation will not be made where the "disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." 38 U.S.C.A. § 1110. However, compensation is permitted where "there is indeed a causal relationship between a service-connected disability . . . and an alcohol or drug abuse disability. It is up to the VA to determine how to assess whether an alcohol or drug abuse disability is actually caused by a service-connected disability." Allen v. Principi, 237 F.3d 1368, 1378 (Fed. Cir. 2001); see also Roper v. Nicholson, 20 Vet. App. 173, 179-82 (2006) (recognizing that service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder). Although the evidence shows that the Veteran had a history of multiple overdoses and opiate and benzodiazepine dependence, his death was the result of an accidental overdose from medication prescribed to treat service-connected PTSD. See, e.g., May 2010 private hospital records (noting the Veteran's history of multiple overdoses and opiate and benzodiazepine dependence, history of PTSD, and suggesting that he should not have any control over medication anymore); see also October 2010 report of death scene investigation (noting the report by his son that he had a history of not taking his medication as prescribed); but see death certificate (noting that the manner of death was "accident"); October 2010 VA medical opinion (noting that he died of an accidental overdose). Thus, it is reasonable to infer that but for the service-connected PTSD, the accidental overdose of citalopram, which was the underlying cause of the Veteran's death, would not have occurred; therefore, resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. DIC Benefits Under 38 U.S.C.A. § 1318 In light of the instant Board decision granting service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310, the claim for entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. This is because DIC benefits granted to a surviving spouse under 38 U.S.C.A. § 1318 would be paid "in the same manner as if the veteran's death were service connected," whereas the Board's grant of service connection for the cause of the veteran's death under the provisions of 38 U.S.C.A § 1310 already recognizes that the death of the veteran is from a service-connected disability. Only if an appellant's claim for service connection for the cause of the veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C.A. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310, the claim of entitlement to DIC under 38 U.S.C.A. § 1318 is moot, and this aspect of the appeal is dismissed. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). The issue of service connection for the cause of the Veteran's death has been considered with respect to VA's duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Given the favorable outcome of the appeal, which is a full grant of benefits sought, the appeal has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist with respect to the issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Service connection for the cause of the Veteran's death is granted. DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs