Citation Nr: 21077217 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-35 675A DATE: December 29, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is granted. FINDINGS OF FACT 1. The appellant is the Veteran's surviving spouse. 2. The Veteran was service connected for posttraumatic stress disorder (PTSD) at the time of his death. 3. The record reflects that the Veteran died of hepatocellular carcinoma in February 2013. 4. The most probative evidence reflects that the Veteran's fatal hepatocellular carcinoma was the result of hepatitis C. 5. The most probative evidence reflects that hepatitis C was the result of the Veteran's in-service and post-service alcohol abuse and intravenous drug use. 6. The most probative evidence reflects that the Veteran's in-service and post-service alcohol abuse and intravenous drug use was secondary to his service-connected PTSD. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.102, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1971 to August 1974. He died in February 2013, and his surviving spouse is the appellant in this matter. This matter comes to the Board of Veterans' Appeals (Board) from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). This rating decision subsumed a May 2014 rating decision which denied the same benefits. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The appellant expressed timely disagreement with this determination, and the present appeal ensued. In August 2021, the appellant presented oral testimony in support of her appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the August 2021 Board hearing is associated with the file. Additional matter At the time of the Veteran's February 2013 demise, he had an appeal seeking an initial evaluation in excess of 30 percent for service-connected PTSD. Upon notification of the Veteran's death, the Board dismissed this appeal in June 2013. On February 28, 2014, the AOJ received the present claim and the appellant's request to "revive" and continue the Veteran's appeal that was pending at the time of the Veteran's death. Regarding the latter matter, a February 2016 deferred rating decision reflects the AOJ's finding that the appellant's request for substitution was ineffective because it was received 17 days after the statutory deadline for such a filing; however, there is nothing in the file indicating that the appellant has been notified of this conclusion or her right to appeal such. In view of above, the Board wishes to make clear that the appealed issue readjudicated in this decision is unrelated to the appeal pending at the time of the Veteran's death which was dismissed by the Board in June 2013 and the appellant's request to "revive" such via substitution. The appellant is encouraged to consult with her accredited representative and engage the AOJ concerning her February 2014 substitution request and her right to appeal any conclusion on the matter reached by the AOJ. 1. Entitlement to service connection for cause of the Veteran's death The appellant seeks Dependency and Indemnity Compensation (DIC) benefits based on the assertion that psychiatric disability related to service was a contributory cause of the Veteran's death. Such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of a veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312 (b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312 (c). Additionally, VA law and regulations generally preclude a grant of service connection for a disability that originated due to substance abuse, as that is deemed to constitute willful misconduct on the part of the Veteran. See 38 U.S.C. § 105; 38 C.F.R. § 3.301 (d); see also, VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). There is a limited exception, however, when there is clear medical evidence that the alcohol or drug abuse is secondary to a primary service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Analysis The facts pertinent to the appellant's appeal are largely undisputed. The Board initially notes that the Veteran's Air Force Specialty Code (AFSC) was a Law Enforcement Specialist during active duty. While stationed in Taiwan in November 1972, the Veteran was called upon, by virtue of his AFSC, to "crawl through" the wreckage of a severe motor vehicle accident to identify the bodies of two fatally wounded Americans. While undertaking this task, the Veteran became "stuck" in the debris while in close proximity to the dead bodies, and he was eventually pulled to safety by assisting Chinese policeman. During his lifetime, the Veteran asserted that the incident described above had an immediate negative impact on his life and ability to function in the Air Force and society. The Veteran's file includes evidence bolstering this assertion, as his personnel records reflect a sharp Veteran's decline in the quality of his supervisory reviews subsequent to November 1972, and the record is replete with reports of maladaptive behavior and extensive alcohol and polysubstance abuse, to include intravenous drug use, subsequent to this incident. Due to the Veteran's declined behavior and performance after November 1972, his Air Force discharge was characterized as "Under Honorable Conditions." After service separation, the Veteran experienced extended periods of incarceration due to maladaptive behavior and activities unrelated to the present appeal. In May 2007, the Veteran filed a claim to establish service connection for PTSD resulting from his in-service exposure to the fatal November 1972 motor vehicle accident. While the AOJ initially denied this claim, such was granted on appeal in an April 2008 Decision Review Officer (DRO) decision; a 10 percent initial evaluation for this disability was assigned from May 14, 2007. As alluded to in the Introduction, the Veteran appealed the initial evaluation assigned for this disability, which was partially granted by the AOJ (to 30 percent from the date of service connection) in an October 2009 rating decision; however, he died prior to the Board's readjudication of this appeal, and such was dismissed in June 2013. The record reflects that the Veteran's death certificate indicates that his February 2013 demise was due to hepatocellular carcinoma. The appellant avers that this fatal disease was caused by hepatitis C, which was the result of the Veteran's in-service and post-service alcohol abuse and intravenous drug use secondary to his service-connected PTSD. In sum, the appellant contends that the Veteran's alcohol abuse and intravenous drug use was self-medication for his service-connected PTSD, and such led to hepatitis C and the eventual development of the Veteran's fatal hepatocellular carcinoma. The appellant's contention described above forms the crux of her appealed issue. The Veteran was provided a VA psychiatric examination in connection with his initial claim to establish service connection for PTSD in March 2008. After completing a review of the file and interview with the Veteran, the March 2008 VA examiner noted the Veteran's reports experiencing psychiatric symptoms since the November 1972 in-service stressor event and his subsequent daily use alcohol and drugs to "numb himself." Unfortunately, the March 2008 VA examiner did not provide further comment on the interplay between the Veteran's PTSD and his alcohol abuse and drug use; however, the Veteran's statements regarding such, specifically his intended self-medication for psychiatric symptoms with drugs and alcohol, are considered competent evidence in the appellant's favor. In connection with the present appeal, the Veteran's file was transferred to a VA physician (a general practitioner) for the purpose of obtaining medical opinions addressing the appellant's contentions. After a review of the file, the VA clinician opinioned that the Veteran's fatal hepatocellular carcinoma was at least as likely as not the result of his hepatitis C, which was at least as likely as not due to his intravenous drug abuse. While these opinions are favorable to the appellant's appeal, the VA clinician further opined that the Veteran's military less likely as not contributed to the Veteran's death because his intravenous drug use was not due to military service. The Board concludes that the opinions rendered by the VA general practitioner in April 2014 regarding the causation of the Veteran's fatal hepatocellular carcinoma and hepatitis C to be adequate and highly probative, the same is not true concerning the unfavorable opinion involving the relationship between the Veteran's "military service" and his intravenous drug use. Specifically, the offered opinion does not state that a connection between the Veteran's PTSD and his drug use was considered. Further, the opinion does not account for the fact that the Veteran, during his lifetime, admitted in-service intravenous drug use. The AOJ also obtained a VA opinion from a VA psychologist in April 2014, who opined that the Veteran's intravenous drug use was less likely as not related to his service-connected PTSD. As rationale, the VA psychologist noted that the March 2008 VA examiner and medical providers treating the Veteran during his incarceration did not comment on an association between the Veteran's PTSD and his drug abuse. Further, the VA psychologist opined that the Veteran's intravenous drug abuse may have pre-existed the November 1972 stressor event based on the March 2008 VA examiner's notation of a "likely antisocial personality disorder" on Axis II, which, by definition, would have pre-existed the Veteran's service as a congenital disease. The Board finds the opinion offered by the VA psychologist to be inadequate for several reasons. First, the opinion was partially based on evidence which did not address (positive or negative) the dispositive matter in the present appeal, and such circular reasoning cannot serve to bolster a medical nexus opinion in the negative or affirmative. Second, the Board finds the rationale concerning the pre-existing nature of the Veteran's psychiatric state and intravenous drug use to be highly speculative and not amply supported by the most probative evidence of record. Specifically, the August 2008 VA examiner's Axis II diagnosis was merely provisional, and the Veteran's statements of intravenous drug use prior to November 1972 are refuted by contrary lay statements within the Veteran's file. In sum, for the reasons discussed above, while the April 2014 VA opinions regarding the causation of the Veteran's fatal hepatocellular carcinoma and hepatitis C are adequate and highly probative, these opinions are not adequate regarding whether the Veteran's alcohol abuse and/or intravenous drug use are secondary to his service-connected PTSD. To the above point, the appellant has submitted a private medical opinion in support of her appealed issue. After a review of the Veteran's complete file, a private psychologist previously employed by VA opined that the Veteran's in-service and post-service alcohol use and intravenous drug abuse were at least as likely as not secondary to his service-connected PTSD. In support of this conclusion, the private psychologist cited to medical treatises, studies by the United States Government, and medical literature pertinent to drug use among Veterans exposed to in-service stressor events. The Board finds the October 2014 private opinion to be highly probative of the dispositive of the matter forming the crux of the appellant's appeal, as such is clearly stated and is accompanied by a full rationale which cites to accepted medical principles and facts congruent with the evidence within the Veteran's file. Bloom v. West, 12 Vet. App. 185, 187 (1999) In sum, the Board finds that the adequate conclusions of the VA general practitioner in April 2014 paired with the October 2014 private psychologist's opinion bolster the appellant's assertion that the Veteran's demise was ultimately due to alcohol abuse and intravenous drug abuse secondary to service-connected PTSD. Consequently, the Veteran's alcohol abuse and intravenous drug use was not willful misconduct, and as all evidence to the contrary has been found to be inadequate, the Board concludes that service connection for cause of the Veteran's death is, therefore, warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.