Citation Nr: 21012350 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-23 708 DATE: March 4, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran’s cause of death, as shown on his death certificate, was opiate toxicity, believed to be due to heroin. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in relative equipoise that the Veteran’s service-connected traumatic brain injury was the proximate cause of his substance abuse disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. § § 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 2001 to March 2003. The Veteran passed away in March 2015. The Appellant is the Veteran’s ex-spouse who has brought this claim on behalf of the Veteran’s minor children, for whom she is legal guardian. The Appellant and the Veteran’s mother testified before the Board at a virtual hearing in September 2020. As a preliminary matter, the Board notes that the Veteran had an appeal pending at the time of his death for entitlement to service connection for PTSD. In May 2015, the Appellant filed an application with the agency of original jurisdiction (AOJ) to be substituted as Appellant on that claim, also on behalf of the Veteran’s minor children. In February 2016, the AOJ sent the Appellant a letter informing the Appellant that it had not made a decision on the claim for accrued benefits and that the AOJ would issue a letter regarding that decision when it became final. To date, the AOJ has not issued a decision on the Appellant’s substitution request, or the underlying accrued benefits claim. Therefore, the Board refers that issue to the AOJ for adjudication. Entitlement to service connection for the cause of the Veteran's death Entitlement to dependency and indemnity compensation (DIC), is provided when a disability incurred in, or aggravated by, active service was the principal or contributory cause of the Veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). Entitlement is determined under the same criteria used to establish service connection contained in 38 U.S.C. Chapter 11. 38 U.S.C. § 1310. 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. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). As was noted above, the Veteran passed away in March 2015. The information reported on the Veteran’s death certificate demonstrates that the immediate cause of the Veteran’s death was opiate toxicity, suspected to be heroin. VA law precludes compensation for primary alcohol and drug abuse disabilities, for secondary disabilities that result from primary alcohol and drug abuse, and for disabilities due to willful misconduct. See VAOPGCPREC 7-99, 64 Fed. Reg. 52375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31263 (1998). However, service connection may be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In order to qualify for service connection in this regard, it must be shown must by clear medical evidence that the alcohol or drug abuse disability is secondary to a service-connected disorder. At the September 2020 Board hearing, the Appellant and the Veteran’s mother testified to a belief that the Veteran’s death was etiologically related to his service-connected traumatic brain injury (TBI). According to this testimony, the Veteran did not have substance abuse issues prior to an in-service assault which resulted in a TBI. Thus, according to the Appellant and the Veteran’s mother, the Veteran’s death was caused by a drug abuse disability that was secondary to a service-connected disorder. The record demonstrates that the Veteran suffered an in-service assault in October 2001. At that time, the Veteran was eating at an off-base restaurant when he was beaten by several men. Emergency room records from that night show that the Veteran reported losing consciousness. His face was swollen and he suffered lacerations above and below his eyes requiring dozens of stitches. Subsequent to the October 2001 incident, service treatment records show that the Veteran began having substance use issues. In March 2002 he was evaluated for possible substance use disorder and he was eventually enrolled in the Alcohol and Drug Abuse Prevention and Treatment program. Post-service treatment records demonstrate that the Veteran’s alcohol dependence progressed after service. Although treatment records do indicate that the Veteran had begun using alcohol prior to military service, the Veteran reported that his use had increased significantly during and after service. Sometime after service, the Veteran also began using other substances, to include opioid pills and heroin. In December 2014, the Veteran underwent a VA TBI examination. There, the examiner opined that the Veteran incurred a TBI secondary to the October 2001 assault. The examiner also reported that the Veteran’s TBI resulted in neurobehavioral effects, to include depression and polysubstance abuse disorder. The AOJ awarded service connection for a TBI in a January 2015 rating decision. There are no medical opinions of record describing a direct link between the Veteran’s service-connected TBI and his cause of death. Nevertheless, the evidence documents the in-service assault which led to a TBI, and that after this event, the Veteran began to have problems with alcohol abuse. According to the December 2014 VA examiner, the Veteran’s TBI manifested in depression and polysubstance abuse disorder. The Veteran’s use of substances was a direct cause of his death. Based on the above, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s death was causally linked to his service-connected TBI. There is evidence that his substance abuse usage increased to problematic levels after his in-service assault. Most importantly, there is medical evidence—in the form of a VA examination report finding—linking his TBI to substance abuse disorder, which ultimately led to his death. As the evidence is in equipoise, the Board resolves all reasonable doubt in the Appellant’s favor to find that service connection for the cause of the Veteran’s death is warranted. The benefit sought on appeal is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.