Citation Nr: 1752689 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-86 646 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office and Pension Management Center in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2000 to February 2004. The Veteran died in July 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction over the appeal presently rests with the RO and Pension Management Center in Milwaukee, Wisconsin. As a matter of background, this appeal previously came before the Board in May 2015, at which time the Board granted service connection for an acquired psychiatric disorder for accrued benefits purposes, and remanded the issue on appeal for further development. The Board observes that this appeal includes documents contained in both the Virtual Benefits Management System (VBMS) and Legacy Content Manager (LCM). FINDINGS OF FACT 1. The Veteran died on July [REDACTED], 2006; his cause of death was given as an accidental overdose, with no contributing causes of death. 2. The appellant was notified in December 2015 of the additional medical evidence needed to adjudicate her claim; the appellant did not respond. 3. There is no evidence of record which indicates that the medications prescribed for the Veteran's service-connected psychiatric disorder or wrist disability contributed to his accidental overdose. 4. The day prior to his death, the Veteran explicitly denied any suicidal ideation or intent. Given the accidental nature of his death, his service-connected psychiatric disorder less likely than not contributed to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in December 2015. Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, service treatment records, VA medical opinions, death certificate, previous Board decisions, and statements from the appellant. Further, the Board finds there has been substantial compliance with its May 2015 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). To the extent that the May 2015 remand instructed VA to contact the appellant and request authorization for release of any additional medical records, as well as the Veteran's autopsy report, the Appellant was notified in a December 15, 2015, letter of those requirements. There was no indication that the letter was returned as undeliverable. That letter also provided the necessary VCAA notice, as mentioned above. (See LCM, MAP-D Development Letter, 12/15/2015). The appellant did not respond to VA's request, and VA was subsequently unable to obtain those required records. Here, the Board observes that the duty to assist is not a one-way street. An appellant may not stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The appellant was given notice of the required evidence and ample time to respond, but did not. Therefore, to the extent that VA has not obtained the evidence identified in the Board's prior decision, the Board is satisfied that the duty to assist has been met in this matter. To date, the appellant has not notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Service Connection - Cause of Death The appellant seeks service connection for the cause of the Veteran's death, for purposes of entitlement to DIC benefits. Pursuant to 38 U.S.C § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C § 1310 (2012); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). The Veteran died on July [REDACTED], 2006. His principle cause of death was given as accidental overdose. No contributory causes of death were listed on his death certificate. At the time of his death, the Veteran was service connected for a wrist disability. Per the Board's May 2015 decision, he has also been granted service connection for an acquired psychiatric disorder for purposes of accrued benefits. For her part, the appellant has essentially argued that the Veteran's service-connected disabilities were contributory causes to his accidental overdose, because he was prescribed the medication that resulted in his overdose for those disabilities. In the May 2015 remand, the Board determined that there was insufficient evidence of record to decide the claim, and remanded the issue so that the appellant could provide further evidence, to include the Veteran's private treatment records and autopsy report (or at least provide VA with adequate information and authorization so that it could obtain those records on her behalf). As discussed above, the appellant was notified of the requirements in a December 2015 letter, but failed to respond. As such, VA was unable to obtain any further treatment records, or the Veteran's autopsy report. Nonetheless, the Board obtained a medical opinion in March 2016, which addressed the possibility of an accidental overdose secondary to the Veteran's service-connected disabilities. The examiner stated that, without knowledge of what substance actually was involved in his overdose, it is impossible to answer whether the medications prescribed for his service-connected disabilities caused his death without resort to mere speculation. Certainly the combination of prescribed benzodiazepines (two different medications prescribed concurrently within the last two months of death), prescribed opioids, prescribed valproate, and alcohol could all contribute to an accidental overdose of one of those substances. But without knowing that he definitely overdosed on one or more of those particular prescribed medications, it is hard to say they directly caused his death. Therefore, any opinion would rely on purely on speculation. Further, because his overdose was described as "accidental" on his death certificate, this would imply that his psychiatric condition itself did not cause or act as a direct contributor to the overdose. (See VBMS, C&P Examination, 3/11/2016). The Board has also reviewed the Veteran's VA treatment records which indicate that on July 26, 2006, the day prior to his death, he spoke with a mental health provider. Although he indicated increased depression, he explicitly denied any suicidal ideation, stating "no, I ain't gonna commit suicide." (See VBMC, Medical Treatment Record - Government Facility, 10/10/2007, p. 1). Those records also indicate active participation in mental health treatment in the months leading to his death. (See, id., pp. 2-14). After careful review of the evidence of record, the Board finds that the claim must be denied. Here, the Board finds persuasive the March 2016 examiner's opinion. That opinion considered all of the evidence of record, including the available VA mental health treatment records and records of prescribed medication, and provided an opinion which states that, absent actual proof of what medications caused the Veteran's death, a nexus opinion cannot be rendered. Jones v. Shinseki, 23 Vet. App. 382 (2010) (The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. The examiner should clearly identify precisely what facts cannot be determined). Further, to the extent that the Veteran's disability could not directly cause an "accidental" overdose, that opinion is also probative, particularly in light of the Veteran's own assurances that he had no intention of committing suicide the day prior to his death. The Board has searched the record, but found no other evidence that would support the appellant's claim. Therefore, the Board must deny service connection for the cause of the Veteran's death. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs