Citation Nr: 21075433 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-35 064 DATE: December 20, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits is denied. Entitlement to nonservice-connected death pension (survivor's pension) benefits is denied. FINDINGS OF FACT 1. The Veteran died in September 2013 as the result of a probable accident resulting from combined drug toxicity. 2. At the time of the Veteran's death, service connection was in effect for right hamstring myositic ossificans, right sciatic nerve injury, lumbar spine degenerative disc disease (DDD) with spondylosis, and right thigh post-surgical scar 3. A competent and probative medical opinion indicates that it is at least as likely as not that the Veteran's chronic pain and mental illness, that developed as a result of his service-connected disabilities, led to a substance abuse disorder that resulted in his death by drug toxicity. 4. The appellant did not file her present claim for accrued benefits within one year following the Veteran's reported death. 5. The Veteran did not have the requisite wartime service to establish basic eligibility for nonservice-connected death pension benefits. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1310, 1331, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1101, 1131, 5121; 38 C.F.R. § 3.1000. 3. The criteria for basic eligibility for nonservice-connected death pension benefits have not been met. 38 U.S.C. §§ 101, 503, 1521, 1541, 1543, 7104; 38 C.F.R. §§ 3.2, 3.3, 3.23. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1979. He died in September 2013. The appellant is the Veteran's surviving spouse. This appeal before the Board of Veterans Appeals (Board) arose from a December 2015 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant was scheduled to appear for a Board hearing in October 2019. However, VA's Veterans Appeals and Controls Locator System (VACOLS) indicates that the hearing was cancelled by the appellant. 38 C.F.R. § 20.704(e). In a February 2020 decision, the Board reopened the appellant's previously denied claim for service connection for the cause of the Veteran's death, denied the claim on its underlying merits, and also denied claims for death pension benefits and accrued benefits. She appealed the Board's February 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for the appellant and VA, which vacated the Board's denial of these claims, and remanded the matters to the Board for further proceedings consistent with the JMPR. Entitlement to service connection for the Veteran's cause of death Service connection for the cause of a veteran's death requires evidence that a disability incurred in or aggravated by service, or caused or aggravated by other service-connected disability, either caused or contributed substantially or materially to death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal cause of death when the 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 disability contributed to death, it must be shown that it contributed substantially or materially, 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 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service- connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Compensation shall not be paid for disability that is the result of a veteran's own willful misconduct, or the result of abuse of alcohol or drugs. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(c). Service connection for alcohol and drug abuse may, however, be established on a secondary basis where it is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit held that a claimant could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability. Specifically, "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See id. at 1381. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, the Veteran's death certificate shows that he died in September 2013 as the result of a probable accident resulting from combined drug toxicity. In an October 2019 report, a private physician noted that it was highly likely that the Veteran's prescribed medications and other pharmacologic agent were the predominant factors in his death from drug toxicity. The physician further noted that the Veteran was obviously not utilizing the pharmacologic agents as prescribed and that this was a continuation of his long-standing and profound substance use disorder, a disease process directly connected to his chronic pain syndrome and mental illness. The Veteran reported at a September 2010 VA mental disorders examination that he began using heroin at the age of 20 and that he had been arrested multiple times for drug-related charges. He reported that he began developing psychiatric symptoms when he was being treated with interferon in December 2009. Review of the record reveals that he continually sought treatment for chronic pain following his separation from service, including for his service-connected right thigh disability, since at least February 1980. The evidence indicates that he has frequently been prescribed with pain medications for his chronic pain. His service treatment records also reflect multiple instances of treatment for pain, and he reported having painful joints at the time of his separation from service. In the October 2019 private opinion report, the physician noted that the record showed that the Veteran developed multiple orthopedic injuries during service as a result of his duties as a lineman and while competing as a boxer. This led to a variety of diagnoses, including myositis ossificans, chronic pain syndrome, and right sciatic nerve injury. The physician noted that the Veteran had been prescribed with opioids on multiple occasions during his service, including for appendicitis in February 1977, following dental surgery in October 1977, and due to pain from competing as a boxer in April 1978. The physician also explained that the consequences of the Veteran's chronic pain syndrome led to the development of a severe and pervasive mental illness, which progressed from the time of his active service. The physician maintained that the causal relationship between chronic pain and the development of mental illness had been extensively described in medical literature for decades. The physician further noted that the Veteran was treated for a severe depressive disorder over the course of his life, described how the Veteran's depressive disorder became as severe as his chronic pain syndrome, and noted that the two disorders, combined with the Veteran's substance use disorder, completely disenfranchised the Veteran and eventually was a causative factor in his demise. Notably, an October 1987 psychology note stated that the Veteran had requested help getting off of heroin which he began using in 1977, proximate to the time he was first prescribed opioids during service. The physician concluded that there was clear evidence of serious injury to the Veteran's right leg during service, and that he also suffered from other painful joints and headaches during service. The physician maintained that, as the medical chronology in the record indicates, these disabilities led to a lifetime of escalating and intractable pain, and frequent medical and surgical interventions. The physician specifically described that the Veteran developed chronic leg pain and back pain over the course of his life as a result of his in-service injuries, which was consistent with chronic pain syndrome. The physician further concluded that the Veteran's chronic pain syndrome caused profound disability and the development of severe mental illness. Consequently, the Veteran developed a substance abuse disorder, utilizing opiate-based medications and sedative/hypnotic/anxiolytic agents. He progressively utilized illicit drugs as a mechanism to mitigate the pain and emotional disarray he was experiencing. Due to the overwhelming effects of his chronic pain and mental illness, the Veteran began using ever-increasing amounts of narcotic-based medications, developing a significant tolerance to them. The physician concluded that this escalation led to severe consequences and more likely than not resulted in his demise. The Board finds the private physician's opinion to be fully informed, fully articulated, and well-reasonedand, thus, probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The physician fully described the Veteran's history of orthopedic pain, describing the pain associated with his service-connected disabilities as constituting a chronic pain syndrome, and his treatment history, beginning in service, with multiple opioids. Further, the physician described how the Veteran developed severe mental illness as a result of the chronic pain associated with his service-connected disabilities, and the subsequent development of his substance abuse disorder associated with his pain and mental illness. The physician clearly concluded that these disorders more likely than not resulted in the Veteran's death. This opinion, together with the other medical evidence of record, support a finding that the Veteran's service-connected disabilities, and resultant mental illness and substance abuse disorder (including use of medications to treat his disabilities) ultimately contributed substantially to his death. Although service connection for a mental health disorder or substance abuse disorder was not in effect at the Veteran's death, the Board finds that he need not have been service connected for such disability in order for service connection to be awarded for his cause of death. DeLaRosa v. Peake, 515 F.3d 1319, 1323 (Fed. Cir. 2008); Patricio v. Shulkin, 29 Vet. App. 38, 44 (2017). It is sufficient if a nonservice-connected disability is later determined to be incurred in or aggravated by active military service, or secondary to service-connected disability, such that it would have been service connected. See, generally, id. "[I]ssues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran's lifetime." 38 C.F.R. § 20.1106. While the examiner who conducted the September 2010 VA examination opined that a claimed anxiety disorder was not caused by, or a result of, the Veteran's service-connected muscle injury and sciatic nerve paralysis, in reaching this opinion, the examiner indicated that an anxiety disorder was attributed to the Veteran's treatment for hepatitis C and human immunodeficiency virus (HIV), based significantly on his self-report. Notably, however, the examiner did not address evidence of mental health symptoms present prior to the Veteran's hepatitis C and HIV diagnoses, as illustrated in the private physician's report. The Veteran also reported beginning using heroin at age 20, which would have corresponded to the time period he began being prescribed opioids for various pains during his active service, which is consistent with the private physician's opinion. Thus, the September 2010 examiner's opinion is of limited probative value in this matter. In view of the totality of the evidence, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, and resultant mental illness and substance abuse disorder, contributed to his cause of death. In such circumstances, the regulations dictate that reasonable doubt is to be resolved in the claimant's favor. As the benefit-of-the-doubt rule is for application, the Board finds that service connection for the Veteran's cause of death is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56, 38 C.F.R. § 3.102. Entitlement to accrued benefits Accrued benefits are periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). In the instant case, prior to the Veteran's death in September 2013, an August 2013 rating decision decided higher rating claims for his right hamstring myositis ossificans, right thigh surgical scar, lumbar spine DDD, and right sciatic nerve disability. Cf. Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007) (where a veteran dies before the expiration of the one year period following a rating decision, and an accrued benefits claimant files a claim within that same year, there is a claim pending at the time of the veteran's death). While the appellant initially filed a claim for accrued benefits in September 2013, that claim was denied in a February 2014 decision, and she did not appeal the decision. 38 C.F.R. §§ 3.104, 20.1103. The appellant subsequently filed a new claim for death pension benefits, which was construed by the Agency of Original Jurisdiction as including a claim for accrued benefits, in July 2015. This claim, however, was received more than one year after the Veteran's death. Based on the foregoing, the Board finds that, without reaching the merits of the underlying higher rating claims, the award of accrued benefits is precluded by law. The appellant's present application for accrued benefits was not filed within one year of the Veteran's death as mandated by law. See 38 C.F.R. § 3.1000(c). Thus, her accrued benefits claim is barred as untimely, regardless of whether the Veteran would have ultimately prevailed on any underlying claim. In sum, because the appellant's present claim for accrued benefits was not filed within one year following the Veteran's death, she is not eligible for accrued benefits. Thus, the claim is precluded by law. In cases such as this, where the law is dispositive, the claim must be denied because of the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Entitlement to nonservice-connected death pension benefits Death pension is a benefit payable in certain circumstances to a veteran's surviving spouse because of the veteran's nonservice-connected death. Basic entitlement exists if (i) a veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4), 3.23(a)(5), (d)(5). VA presently recognizes the following as periods of war: January 1, 1817, through December 31, 1898, inclusive; April 21, 1898, through July 4, 1902, inclusive; May 9, 1916, through April 5, 1917; April 6, 1917, through November 11, 1918, inclusive; December 7, 1941, through December 31, 1946, inclusive; June 27, 1950, through January 31, 1955, inclusive; August 5, 1964, through May 7, 1975, inclusive; and August 2, 1990, through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2. Here, the Veteran served on active duty from July 1976 to July 1979. Thus, his only period of service began subsequent to the Vietnam Era, which ended on May 7, 1975; and he was discharged from active service prior to the beginning of the Persian Gulf Era, which commenced on August 2, 1990. The appellant does not dispute the Veteran's recorded dates of service, and the record does not otherwise reflect that the Veteran had any additional periods of service. The Board graciously recognizes the late-Veteran's service and commitment to his country, but the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As periods of war are defined by statute, the Board does not have jurisdiction to extend those periods for equitable reasons. Accordingly, where the Veteran did not have qualifying service during a period of war recognized by (CONTINUED ON NEXT PAGE) VA, basic eligibility for death pension benefits is not established, and the appellant's claim must be denied as a matter of law. See Sabonis, Vet. App. at 429. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.