Citation Nr: 21062701 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 10-45 667 DATE: October 12, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 2005 from asphyxiation due to hanging; no underlying causes were listed on the death certificate. 2. An October 2005 Coroner's Report indicated the Veteran's cause of death was asphyxiation due to hanging, secondary to cocaine use. 3. At the time of his death, he was not service connected for any disabilities. 4. The competent and probative medical evidence shows that the Veteran's stimulant use disorder and depression clearly and unmistakably pre-existed service and clearly and unmistakably were not aggravated during service, to include as a result of his injury and/or early return from deployment ahead of his unit. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.159, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1988 to November 1988 and May 2003 to August 2005. The Veteran died in October 2005. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2013, the Appellant testified before the undersigned Veterans Law Judge (VLJ). A transcript is associated with the claims file. In October 2014, the Board remanded this claim for additional development. In October 2017, the Board requested an expert medical opinion from the Veterans' Health Administration (VHA). See 38 C.F.R. § 20.901. A VHA opinion was received in November 2017. In a June 2018 decision, the Board denied this claim. The Appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 Memorandum Decision, the Court vacated the Board's decision and remanded the case for compliance with the terms of the Court's decision. In August 2020 and May 2021, the Board remanded this claim for additional development. Entitlement to service connection for the cause of the Veteran's death. The Appellant contends that the Veteran's death was due to his period of service. The Appellant asserts that the Veteran experienced an injury during service, which required surgery and prescription narcotic medication. She contends the Veteran then began experiencing depression due to having to return home early because of his injury, and he also began taking illegal narcotics as a result of becoming addicted to the prescribed narcotics for his in-service injury. The Appellant argues that the Veteran then committed suicide as a result of his psychiatric disorder and addiction to drugs. Applicable Laws Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110. VA death benefits are payable if a Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. 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 contributing cause of death. 38 C.F.R. § 3.312. 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. 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. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The statute provides that the presumption of soundness applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's psychiatric disorder and substance abuse disorder preexisted his military service. Facts Upon entry to the Veteran's second period of service, his February 2003 entrance examination did not document any psychiatric disorders and the Veteran denied the use of any illegal drugs. In January 2004, the Veteran was sent to Iraq in support of the Persian Gulf War. In December 2004, the Veteran returned home early without his unit due to a right arm/cervical spine injury that required surgery and convalescence. Upon returning home from Iraq, the Veteran's service treatment and personnel records document suicidal ideations and diagnoses of major depressive episode, cocaine induced mood disorder, and cocaine dependence, as well as periods of absent without leave (AWOL) that required confinement and eventually early military discharge in August 2005. The Veteran was hospitalized in May 2005, where he reported that he overdosed on aspirin 10 years prior but did not tell anyone. He also reported that in 1998 to 1999 he had four sessions with a psychiatrist due to symptoms of depression and was started on free samples of Zoloft, but only took it for four weeks. The Veteran also reported that he experimented with marijuana and cocaine at the age of 20. The Veteran was assessed with substance-induced mood disorder versus major depressive disorder, recurrent. One month after his military discharge, in September 2005, the Veteran sought psychiatric treatment from the VA Medical Center (VAMC) for depression with suicidal ideation and concern over cocaine use. He stated that he felt lost, out of place after receiving an injury in Iraq, and depressed since leaving the military. The September 2005 VA treatment note indicates the Veteran reported he began smoking crack cocaine in 1997. He was assessed with substance induced mood disorder, cocaine abuse, superimposed adjustment disorder with depressed and anxious features, rule out cyclothymia. In October 2005, the RO received the Veteran's application for compensation benefits, including a claim for service connection for depression. That same month, the Veteran died from asphyxiation, due to hanging. The October 2005 Report of Investigation by the County Medical Examiner also notes that the Veteran's cause of death was asphyxiation, due to hanging, secondary to cocaine use. The Veteran's death certificate reflects that he died in October 2005. His immediate cause of death was listed as asphyxiation due to or as a consequence of hanging. No underlying causes were listed on the death certificate. An October 2005 Coroner's Report indicated the Veteran's cause of death was asphyxiation due to hanging, secondary to cocaine use. At the time of his death, the Veteran was not service connected for any disabilities. Analysis As noted, the Veteran's February 2003 entrance examination is absent any notations of psychiatric defects, infirmities, or disorders. His drug screening tests were negative. Under the physical profile section, the Veteran was assigned a 1 for each category, including for the "S" category for psychiatric, indicating no psychiatric pathology. Therefore, the presumption of soundness attaches. 38 C.F.R. § 3.304 (b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's depression and substance abuse disorder pre-existed service. The Board notes that both the Veteran's military roommate (in a December 2005 statement) and the Veteran's spouse (at the Board hearing) stated that the Veteran did not have any psychological problems prior to entering the military or during his military service from 2003-2004. However, evidence indicates the Veteran was hospitalized in May 2005, wherein he reported that he overdosed on aspirin 10 years prior but did not tell anyone. He also reported that in 1998 to 1999 he had four sessions with a psychiatrist due to symptoms of depression and was started on free samples of Zoloft, but only took the medication for four weeks. The Veteran additionally reported that he experimented with marijuana and cocaine at the age of 20. A September 2005 VA treatment note indicates the Veteran reported he began smoking crack cocaine in 1997. Multiple VA opinions have been obtained. The medical evidence indicates that the Veteran's depression and substance abuse pre-existed his entrance to service. In October 2017, the Board requested an expert medical opinion from the VHA. See 38 C.F.R. § 20.901. A VHA opinion was received in November 2017. The psychiatrist noted that the Veteran began using cocaine when he was 24 years old preceding his time in active duty, while in the reserves, and after leaving the reserves. The psychiatrist stated there is a reference to the Veteran being started on sertraline (Zoloft) in the late 1990's preceding military duty. In addition, he was also using cocaine at this time as well. The specialist explained that the Veteran did not have a post-service psychiatric disorder attributable to his military service; his illegal drug use preceded service by many years. Concluding, the specialist stated the clinical and other data gathered from the record and placed in the timeline above indicates that the Veteran had a substance abuse problem that preceded military duty. In September 2020, a VA examiner opined that the Veteran's substance abuse and depression clearly existed prior to service. The examiner noted that records indicate the Veteran first used illicit substances at approximately 20 years of age (cocaine and marijuana) and alcohol use was noted as regular from approximately 19 to 22 years old, while the Veteran attended college. The examiner stated that later medical records are grossly consistent, as the Veteran then reported having started cocaine use at approximately 23 or 24 years old (e.g., 1991/1992). Continuing, the examiner noted that the Veteran consistently endorsed that he attempted suicide, experienced symptoms of depression, and was briefly seen for counseling in 1998/1999, prior to his time in service. In July 2021, a VA examiner opined that there was clear and unmistakable evidence that the Veteran had mental health issues of stimulant use disorder and depression prior to military service, noting that the Veteran himself admitted to beginning to use crack cocaine prior to his time in service and receiving treatment for depression. As noted, both the Veteran's military roommate and the Veteran's spouse, the Appellant, reported that the Veteran did not have any psychological problems prior to entering the military or during his military service from 2003-2004; however, the medical evidence indicates the Veteran himself reported an onset of stimulant use and depression prior to service. As these lay statements are inconsistent with the earlier contemporaneous evidence from the Veteran, the Board finds these lay statements not credible. Furthermore, all medical opinions of record have opined that these disorders clearly and unmistakably pre-existed service. The Appellant has not submitted any medical opinions to the contrary or any evidence, other than lay statements that have been deemed not credible, that indicate the Veteran's depression and substance abuse disorder did not pre-exist service. As such, the Board finds that there is clear and unmistakable evidence that the Veteran's depression and substance abuse disorder pre-existed service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence that "there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the pre-existing condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Here, there is clear and unmistakable evidence that the Veteran's substance abuse disorder and depression were not aggravated during service. An October 2020 VA examiner opined that the Veteran's pre-existing substance abuse disorder and depression clearly and unmistakably were not aggravated by service. The examiner explained that there is evidence the Veteran continued to suffer from his mental health disorders during service, with occasional waxing and waning, which is typical of mental disorders. The Board acknowledged that the October 2020 VA medical opinion lacked a complete and thorough rationale and requested an opinion from a psychiatrist, as directed in a May 2021 remand. A December 2020 VA psychiatrist opined that the Veteran's substance abuse disorder and depression clearly and unmistakably were not aggravated by service. The examiner explained that the Veteran's depression and comorbid substance use were consistent with the long and variable course of the disorders, which tend to wax and wane. The examiner indicated that the course of a depressive disorder is such that some individuals rarely ever experience remission, while others experience few or no symptoms between episodes of depression. Additionally, substance use disorders are characterized by periods of remission and relapse as noted per the Veteran's symptom development prior to enlistment and course development through 2005. The examiner stated that symptom exacerbation during periods of stress does not indicate that symptoms are "permanently aggravated" but rather are secondary to a specific situational stressor and does not imply permanent aggravation. Continuing, the examiner indicated that it is well documented that depressive disorders are comorbid with opioids and stimulants and the vice versa (DSM-5); however, there is no evidence of a cause-and-effect relationship between depression and substance use. As noted by the Veteran he "tried to stop the physical and emotional pain" by using opioids to help him calm down, decrease his anxiety/depression, and followed by stimulant, i.e., cocaine, to help enhance/counteract withdrawal symptoms of opioids, which also helps produce a sense of euphoria, energy, decrease inhibition. Inadvertently, leading to a vicious cycle of depression, opioids, and stimulants. Thus, given above, the examiner opined that the Veteran's symptom development and course, which was noted to exist prior to enlistment, is consistent with the natural progression of the above noted disorders and symptoms thereof which wax and wane over time. In conclusion, the examiner opined that the Veteran's depressive disorder and substance abuse disorder pre-existed service and was not aggravated beyond its natural progression as a result of his surgery or his early return from deployment ahead of his unit, given the Veteran's symptom development and course was consistent with the natural progression of the disorder and there is no evidence that his symptoms were permanently aggravated. The July 2021 VA examiner opined that the Veteran's pre-existing disorders clearly and unmistakably were not aggravated beyond a natural progression by an in-service injury or event. The examiner explained that the Veteran continued to suffer from the mental health disorders during military service, with occasional waxing and waning of symptoms, which is typical of these disorders. The examiner opined that the Veteran's mental health condition throughout the medical records was approximately at the same level of severity as it was prior to military service. The examiner explained that it is also known by those who work in mental health and as explained in peer reviewed articles, that stimulant/cocaine dependence and depression are chronic conditions. The examiner concluded that there is no objective evidence or clear and unmistakable (undebatable) evidence, that the pre-existing psychiatric disorder underwent a permanent increase in severity during service, to include as a result of his injury and/or early return from deployment ahead of his unit. In providing the opinion, the July 2021 VA examiner was specifically directed by the Board to consider and discuss the Appellant's testimony regarding the Veteran's change in behavior and demeanor following his in-service injury in Iraq and that the Veteran became depressed following his in-service injury because he could no longer participate in physical fitness, which he always enjoyed and used as an outlet, explaining "his commanding officer...stat[ed] he was a stellar soldier. He was a great leader. He had great physical capabilities. He received numerous outstanding awards. He graduated top of his class in bootcamp. He was very smart. But then, there was just this downward spiral when he came back from -you know, brought back from Iraq in January2005." The examiner was also asked to consider the Appellant's testimony that, "He also expressed to me that he was depressed, because he liked working out. He liked being fit, and of course, due to the injury, he could no longer have that as an outlet." The July 2021 examiner indicated the testimony was considered and opined that these statements were simply a guess as to the reason for the Veteran's depression and drug use. The examiner noted that many other guesses as to the source of his mood and drug use are in the record, including family, marital and medical problems; however, the inability to conclude the source of the Veteran's mood and drug use is indicative of drug and mood disorders in general, as mentioned in peer-reviewed articles. The examiner also noted that treatment records noting both prior treatment and symptoms as well as the military separation examination, which noted no mental health concerns simply attest to the known waxing and waning nature of stimulant (cocaine) use disorder and depression, which is also highlighted in many peer-reviewed articles. Therefore, the probative and persuasive evidence of record indicates the Veteran's pre-existing depression and substance abuse disorder was not aggravated beyond a natural progression during service. There are no medical opinions to the contrary. After thorough consideration of the evidence of record, the Board concludes that service connection is not warranted for the cause of the Veteran's death. The Appellant's assertions and the lay statements are the only evidence of record linking the Veteran's cause of death to his time in service. There is no medical opinion or persuasive evidence of record suggesting that the Veteran's cause of death was due to or a result of his time in service. The Appellant and the lay persons who provided the statements are competent to describe the Veteran's symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). They are also credible to the extent that they sincerely believe that a link exists between the Veteran's service and his cause of death. However, neither the Appellant nor the individuals who submitted the lay statements have been shown to have the requisite knowledge or training to render a medical opinion or identify the etiology of the Veteran's conditions. While lay persons are competent to provide opinions on some medical issues, determining the cause and nature of a complex condition such as a psychiatric disorder and/or drug addiction falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The evidence of record does not persuasively demonstrate that the cause of the Veteran's death, a psychiatric disorder, or a drug abuse disorder, was caused by or aggravated by his active duty service. The Board acknowledges the Appellant's arguments and those put forth by the lay statements that the Veteran's psychiatric disorder and drug abuse disorder led to his death and was caused by or related to service. However, as noted, these assertions and arguments do not persuasively show a link between the Veteran's illnesses and his service. The probative medical opinion of record indicates that the Veteran's death is not due to service. Unfortunately, there are no medical opinions to the contrary, of record. The Appellant and her attorney were notified several times that they were free to obtain a medical opinion to substantiate the Appellant's claim, but no evidence, other than lay statements, were submitted in support of this claim. The Board is not free to ignore the medical opinions of record and substitute its own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, service connection for the cause of the Veteran's death is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.