Citation Nr: 1806429 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-17 19 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1971. He died in September 2010. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for the cause of the Veteran's death. A hearing before the Board was scheduled at the RO in November 2017; however, in a November 2017 letter, the appellant's representative withdrew the request for the hearing and asked that the appeal be adjudicated on the evidence of record. FINDINGS OF FACT 1. The Veteran's death certificate reflects that he died of cardiac arrest with cirrhosis of the liver, in part, being the underlying cause of death. 2. The treatment records establish that the Veteran's alcohol abuse was a longstanding addiction during and after his combat service in Vietnam and is related to service-connected posttraumatic stress disorder (PTSD), but the medical evidence also establishes that the Veteran's PTSD aggravated the his alcohol abuse. 3. The Veteran's service-connected PTSD contributed substantially and materially to the severity of his alcoholism and subsequent alcoholic liver disease, liver failure, and death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant maintains that the cause of the Veteran's death was related to PTSD, to include self-medicating with alcohol due to PTSD. During the Veteran's lifetime, service connection was in effect for PTSD, evaluated 70 percent disabling effective from September 7, 2005. The Veteran died in September 2010. His death certificate reflects that he died from cardiac arrest with the underlying cause of death from cirrhosis of the liver and hypertension. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay 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 the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Dependency and indemnity compensation (DIC) benefits are 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. In order 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 (a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312. The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). 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. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (a). Although the law prohibits compensation for primary alcohol abuse which begins in service, and also prohibits compensation for conditions which are secondary to such primary alcohol abuse, the law does not prohibit compensation for an alcohol abuse disorder which is secondary to an established service-connected condition (such as when secondary to a service-connected psychiatric disorder). Allen v. Principi, 237 F.3d 1368 (Fed. Cir 2001). During his lifetime, the Veteran was granted service connection for PTSD. At the time of his death, the Veteran's service-connected PTSD was 70 percent disabling, effective from September 7, 2005 until his death. Service treatment records (STRs) do not show the presence of any liver abnormality in service. However, he did receive a reprimand for driving while intoxicated. Service connection for alcohol abuse, as a primary disability, is prohibited, even if of service onset. 38 U.S.C.A. § 105. Sections 1110 and 1131 prohibit the payment of disability compensation for a substance-abuse disability, whether claimed on the basis of direct or secondary service connection. VAOPGCPREC 7-99. Thus, the Veteran could not, during his lifetime, obtain payment of compensation for any disability due to alcohol abuse. Nevertheless, service connection may be granted for alcohol abuse and disabilities resulting therefrom, if the alcohol abuse is secondary to or aggravated by service-connected PTSD. However, the statutory preclusion of direct service connection for substance abuse does not preclude establishing service connection for an alcohol or drug abuse disability secondary to a service-connected disability. Allen v. Principi, 237 F. 3d 1368, 1376 (2001). Compensation for a disability so service-connected is barred, however. VAOPGCPREC 7-99, 5, 6, 7. However, since the appellant seeks service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310, not under 38 U.S.C.A. § 1110 or 1131, the law does not preclude an award to her of payment of DIC benefits based on aggravation of a substance abuse disorder. VAOPGCPREC 7-99 (holding at C). Prior to his demise, the Veteran has been reported to have been a chronic alcoholic since service (return from Vietnam). He received a DWI in service and another DWI in 1977. The VA examiner concluded that his PTSD was related to service and that his reported symptoms of anxiety and depression were secondary to the diagnosis of PTSD. (See August 2002 VA examination). An August 2005 VA treatment record noted, in part, that he masked the severity of his PTSD symptoms through alcohol consumption. He had been sober for one year at that time. An October 2005 VA examination noted that he had alcohol dependence for many years which he claimed was to reduce his anxiety. VA treatment records reflect that from February 2007 through July 2010, he was treated for alcohol abuse as an "in patient" numerous times. In an April 2008 VA treatment record, he was admitted for alcohol abuse and alcohol hepatitis. He drank one pint of rum per day for the last four years. He was found by his wife with a lacerated left index finger while lying in a pool of blood. He reported getting intoxicated to the point of passing out every weekend. During his treatment he went into delirium and tremors from alcohol withdrawal. He was discharged a month later. He was diagnosed with liver cirrhosis from chronic alcohol abuse. Since the medical evidence establishes that the Veteran's alcohol abuse was aggravated by his service-connected PTSD, and that such aggravation contributed materially and substantially to the Veteran's death, the criteria for service connection for the cause of the Veteran's death are met. The appeal is granted. ORDER Service connection for the cause of the Veteran's death is granted. _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs