Citation Nr: 18157110 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16 53-475A DATE: December 11, 2018 ORDER Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in November 2014. He was not a prisoner of war, and at the time of his death, he was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of at least 5 years immediately after his discharge from active service or for 10 years or more prior to his death. 2. The Veteran died on November [redacted], 2014, with the cause of death being pulmonary edema and congestion, due to multiple drug toxicity. 3. At the time of the Veteran’s death, service connection was in effect for posttraumatic stress disorder (PTSD) and diabetes mellitus. 4. None of the disabilities causing or contributing to the Veteran’s death (pulmonary edema and congestion due to multiple drug toxicity), were present in service, or within a year following discharge from service and they are not shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. §§ 1318, 5107, 5103A, 5107 (2012); 38 C.F.R. § 3.22 (2017). 2. A service connected disability did not cause death or contribute substantially or materially to death. 38 U.S.C. §§ 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to November 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs Milwaukee VA Pension Management Center. 1. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. 1318 Under 38 U.S.C. § 1318, a surviving spouse may be entitled to DIC in the same manner as if the Veteran’s death were service-connected, under certain specific conditions. VA shall pay DIC under 38 U.S.C. § 1318 to the surviving spouse of a Veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling provided, in pertinent part, that the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. At the time of the Veteran’s death, he was service connected for PTSD at 70 percent, and type II diabetes mellitus at 20 percent. There are no other service connected disabilities. Accordingly, the criteria that he be in receipt of, or entitled to receive, a total disability rating for at least 10 continuous years preceding death are not met. There is no other basis upon which this claim may be granted. 38 C.F.R. § 3.22. Accordingly, there is no entitlement under the law to the benefit sought and this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to service connection for the cause of death VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran’s death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(b), (c). Service connection is generally denied to any disability that is a result of a veteran’s willful misconduct or abuse of drugs or alcohol. 38 U.S.C. § 1110; 38 C.F.R. § 3.301. Thus, for service connection to be granted for drug abuse, it must be established as secondary to, or a component of, a service-connected disability. The issue is whether the Veteran’s drug above was secondary to his PTSD. The appellant contends the Veteran’s death was related to his service-connected PTSD and believes that service connection should be established for the cause of his death. Specifically, the appellant asserts that because of his PTSD, the Veteran suffered from substance abuse, which then caused his pulmonary edema and congestion that was a result of multiple drug toxicity. She has argued that the Veteran used multiple drugs to control his symptoms of PTSD. The Veteran’s STRs do not indicate any treatment for or complaints of substance abuse. There is no evidence in the Veteran’s STRs that he suffered from any of the conditions which are listed as the Veteran’s cause of death. The Certificate of Death showed the cause of death was pulmonary edema and congestion due to multiple drug toxicity (toxicology positive for heroin, cocaine, cocaethylene), with additional contributing conditions of pulmonary emphysema and cirrhosis. The manner of death was deemed an accident. The claims file was referred to a VA practitioner for review of the record and an opinion as to whether a service-connected disability, including his PTSD, was the immediate or underlying cause of his death, or contributed substantially or materially to the Veteran’s death. In January 2015, following a review of the records, the examiner opined that it is less likely than not that the Veteran’s PTSD contributed substantially or materially to death from pulmonary edema and congestion, and multiple drug toxicity with contributing conditions of pulmonary emphysema and cirrhosis. The examiner opined it is less likely than not that PTSD combined to caused death, or that it aided and lent assistance to the production of death. The rationale was at the time of death he was serviced connected for PTSD, and had domiciliary treatment related to alcohol and cocaine. There is not sufficient evidence to opine that his substance use was due to the service connected PTSD, and hence played a causal role in their accidental death by drug overdose. Neither the immediate cause nor contributing factors of death listed on the death certificate include PTSD. At the most recent PTSD exam of October 2011, there was no indication the Veteran and alcohol or drug problem at that time. Similarly, in 2006, he denied any alcohol or drug problem. An addiction history taken in May 2010, indicated he started drinking alcohol at age 13 or 15, and used marijuana prior to service. He reported the first use of cocaine was around 1975, well after separation, and that his use of cocaine was for pleasure. The Board also has considered the assertions advanced by the appellant, but there is no indication that the appellant has had any medical training. As such, her statements are considered lay evidence. She is competent to testify as to symptoms she observes, and she is competent to testify as to reporting contemporaneous medical diagnoses. In this particular case, the appellant is offering her opinion regarding a medical etiology concerning inner workings of the Veteran’s body that are not apparent to an untrained observer. Rather, it involves a complex medical situation, the claimed relationship between service-connected disabilities and his death. Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the appellant’s statements are not considered to be competent nexus evidence and are of minimal probative value. The Board also considered the appellant’s submission of online articles/medical treatise evidence showing a link between PTSD and substance abuse. These articles were considered, but they are afforded little probative weight as they are not specific to the Veteran’s symptoms and circumstances. The most probative evidence as to the cause of the Veteran’s death is the January 2015 opinion from the VA examiner. It is based on a thorough review of all the evidence of record—including the appellant’s lay testimony and the Veteran’s medical history. The examiner offered a rationale, and plausible explanation for concluding that the service-connected disabilities did not cause or contribute to the Veteran’s death. The VA examiner indicated that there is no medical or scientific evidence to link PTSD to substance abuse in this Veteran. There is no probative evidence of record that shows the Veteran’s death was related, in any fashion, to his service-connected PTSD. The evidence of record does not show that PTSD, or any of the Veteran’s service-connected disabilities, contributed substantially or materially to cause the Veteran’s death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312(c)(1) (2017). Although the Board is sympathetic to the contentions of the appellant, the most probative evidence does not show a link between the Veteran’s PTSD and his death. As the preponderance of the competent evidence fails to show that the Veteran’s service-connected disabilities played any part in his death, service connection for the cause of the Veteran’s death is denied. 38 U.S.C. § 5107(b) (2012). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel