Citation Nr: 1756493	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO. 13-36 364	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for the cause of death of a veteran.


ORDER

Service connection for the cause of death of a veteran is granted.


FINDINGS OF FACT

1. At the time of the Veteran's death, service connection was in effect for a left knee disability, major depression, a low back disability, a right hip disability, right hearing loss, and a bilateral foot disability.

2. The official cause of the Veteran's death was "acute intoxication by morphine[, ]service related injuries."


CONCLUSION OF LAW

The criteria for service connection for the cause of death of a veteran have been met. 38 U.S.C.A. §§ 1131, 1310, 1312, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant was the spouse of a veteran (the Veteran) who had active duty service from February 1982 to September 1990. The Veteran died in July 2012.  

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Pension Management Center at the RO in Milwaukee, Wisconsin.

In May 2017, the appellant presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). A transcript of the hearing is associated with the claims file.

The appellant submitted additional medical evidence after the most recent RO adjudication of her claim; however, she waived initial consideration of this evidence by the RO.

To establish a service-connected cause of death, it must be shown that a service-connected disability either caused death or substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during active service, or one which was proximately due to or the result of, or aggravated by, a service-connected disability. 

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). 

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).

A 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2).

Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3).

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

The Veteran died in July 2012. At the time of the Veteran's death, service connection was in effect for a left knee disability, major depression, a low back disability, a right hip disability, right hearing loss, and a bilateral foot disability. The official cause of death listed on the initial (pre-amended) death certificate was acute intoxication by morphine. The appellant asserts that a reaction in the Veteran's liver between Citalopram, taken for his service-connected psychiatric disability, and morphine, taken for his service-connected knee disability, caused or contributed to cause his death.

The RO obtained a medical opinion from a VA practical nurse in February 2013. The opinion was that the Veteran's death was not caused by or a result of Veteran's medication Citalopram. The VA clinician noted that the Veteran was prescribed Citalopram 40mg to be taken daily, and that a normal maintenance dose for Citalopram is 20mg to 40mg per day. She also noted that the Veteran's morphine sulfate was not prescribed by the VA Medical Center. The VA clinician stated: "I do not believe the VA Medical Center is at fault for this Veteran's death. First, the VA Medical Center did not prescribe the Veteran's morphine sulfate. Secondly, the VA Medical Center prescribed citalopram at normal dosage range. 

A November 2013 addendum by the same VA clinician opines that the Veteran's death is a result of medication (morphine Sulfate) prescribed for the Veteran's service-connected left knee condition. The rationale for this opinion was that morphine sulfate was prescribed for Veteran's service-connected left knee. The death certificate documents that the Veteran died in July 2012. The cause of death is shown as accident, acute intoxication by morphine (VBMS record 12/26/2013). 

Just prior to the hearing, in April 2017, the appellant submitted a September 25, 2013, letter, addressed to the appellant, from the Office of the Medical Examiner in Columbia Missouri which issued the death certificate. According to the individual who conducted the autopsy and completed the certificate, "it is clear that if I had access to his records, I would rule the cause of death to be intoxication with morphine, the manner of death to be accidental and that the underlying cause is the treatment of [his] severe service connected injuries."

At the Board hearing, the appellant testified that she had obtained an amended death certificate and updated records from VA showing that morphine had been prescribed by VA for the service-connected knee disability at the time of the Veteran's death. 

An amended death certificate dated May 8, 2017, lists the underlying cause of death as "acute intoxication by morphine[, ] service related injuries."

After a review of all of the evidence, the Board finds that the cause of the Veteran's death is related to his service-connected disabilities. It would appear that there is no longer any dispute as to any material fact in this case. The nexus opinion against service connection has been amended by the opining clinician who now agrees that morphine was prescribed to treat service-connected disabilities. The Board notes that it does not matter for purposes of this determination who prescribed the morphine, only that it was prescribed for a service-connected disability. It also does not matter for purposes of this determination whether there was any fault with respect to the VA prescribing clinician. Accordingly, the Board concludes that service connection for the cause of the Veteran's death is warranted. 

The Board acknowledges the appellant's testimony that she has remarried since the Veteran's death. The Board makes no finding as to whether, or for what period, Dependency and Indemnity Compensation (DIC) benefits may be payable to the appellant or other eligible claimants, as these determinations will be made by the RO in the first instance upon implementation of the Board's decision to grant service connection for the cause of death. 




____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	L. Cramp, Counsel

Copy mailed to: Missouri Veterans Commission 
 

Department of Veterans Affairs