Citation Nr: 21021347 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-31 069A DATE: April 12, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died in October 2013 due to acute renal failure, metabolic acidosis, cirrhosis, and anemia. 2. At the time of his death, the Veteran had the following service-connected disabilities: left and right lumbar radiculopathy and degenerative joint disease and degenerative disc disease of his lumbar spine. 3. A service-connected disability did not cause or contribute substantially or materially to his death. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for the cause of his death. 38 U.S.C. §§ 1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March to December 1973. He died in October 2013. The appellant is his surviving spouse, so widow. She appealed to the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although she initially requested a hearing concerning her claim, in February 2015 she withdrew that request. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e). In August 2018, the Board remanded this claim back to the RO for further development and consideration – including especially to obtain all medical treatment records immediately preceding the Veteran’s death (“terminal” medical records) and then for a medical opinion concerning whether his fatal liver and kidney disease were as likely as not related to (either caused or aggravated by) his use of Oxycontin for the low back pain attributable to his service-connected disability. Entitlement to service connection for the cause of the Veteran’s death is denied. The Veteran died in October 2013 from acute renal failure, metabolic acidosis, cirrhosis, and anemia. During his lifetime, he had established service connection for a lumbar spine disability and for associated radiculopathy of his left and right lower extremities. The Appellant-widow contends that the medication (Oxycontin) he took for his low back pain resulting from his service-connected lumbar spine disability caused his terminal liver and kidney disease (organ failure). She maintains that he had been taking that medication for many years and that, over time, it had a fatal toll on his health. Service connection may be established for disability resulting from disease or injury incurred in or aggravated during active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. This determination requires a finding of current disability that is related to an injury or a disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).   Service connection may be established for a disability diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. §3.312 (a). 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). To be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the Veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had a material influence in accelerating death, thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that a service-connected disability casually shared in producing death, rather, it must be shown there was a causal connection. 38 C.F.R. § 3.312 (c)(1). However, if the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(3). The file was forwarded to a VA examiner in March 2014 for comment, and the examiner rendered an unfavorable opinion but explained that the only medical records in the file at that time dealing directly with the details of the Veteran’s death was the death certificate. The examiner added that no records concerning the Veteran’s terminal hospitalization were available for consideration. But that is precisely why the Board subsequently remanded this claim back to the RO in August 2018 – to obtain authorization and request these additional records.   The March 2014 VA examiner also explained that the opinion was given “because there is no scientific evidence that indicates that oxycontin CAUSES liver or kidney damage.” (Emphasis in original.) The examiner did not, however, also address whether the Veteran’s use of this medication alternatively aggravated the liver or kidney conditions contributing to his death. So that, too, was another reason for the Board’s August 2018 remand of this claim. 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). But, before that, a second VA examiner also had reviewed this case in May 2014, and this other examiner also gave a negative opinion. In doing so, this other examiner materially relied on a private doctor’s assessment in October 2008 that the Veteran’s “elevated liver function tests were probably due to the steatohepatitis that was diagnosed by biopsy in 1999 and the fact that I could find no clear evidence to support the above claim.” In the Board’s August 2018 remand, it was determined that this other examiner’s opinion also was problematic, primarily because it was based on the same, incomplete medical record. As identified by the first VA examiner, the Veteran’s terminal records were not available. Moreover, the second VA examiner did not explain why the terminal records were not needed, even though the first VA examiner already had identified them as relevant. And, to reiterate, this in turn led the Board to conclude in August 2018 that more medical comment was needed because the VA examiners admittedly had not identified or reviewed available information, which, in turn, had diminished the probative weight assignable to their opinions. Thus, the Board sought to rectify these failings by obtaining a third opinion on remand after obtaining the terminal hospitalization records. To this end, VA sent a development letter to the Appellant-Widow in April 2019 and included VA Form 21-4138 so she could provide additional information about all outstanding private medical records that might be helpful in deciding her appeal, including the terminal hospitalization records mentioned. She did not provide the requested information, but in April 2019 she did provide additional private medical records from 2006 that have been added to the file so they may be considered in deciding this appeal. Also, in compliance with the Board’s other August 2018 remand directive, a third VA medical opinion was provided in May 2019. This examiner opined that the Veteran’s cause of death—especially his liver and kidney disease—was less likely than not related to his use of Oxycontin. Her rationale was that blood tests and liver function tests performed approximately a year prior to the Veteran’s death ruled out viral causes of hepatitis B and C and showed a marked “transaminitis” (high levels of enzymes) most consistent with alcoholic cirrhosis. This examiner also explained that those blood/liver function tests showed a pattern of liver elevation seen with alcohol use. Additionally, she pointed out that alcohol can produce steatohepatitis, which, along with diabetes mellitus, contributes to the development of cirrhosis. This is significant because the Veteran had received diagnoses of both steatohepatitis and diabetes. As a general matter, VA law and regulations preclude an award of direct service connection for disability owing to substance abuse, drugs or alcohol, as this is deemed to constitute willful misconduct. 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(b), (d); VAOPGPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, has held that there can be compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (indicating that Veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder."). This dynamic must be considered when, as an example, a Veteran alleges his substance abuse was, in actuality, just a means of coping with the effects of his service-connected disability (e.g., a coping mechanism to counteract the effects of a mental disorder). But this is not the situation here. Rather, service connection is expressly precluded when, as another notable example, the Veteran drinks alcohol to the point of developing cirrhosis of his liver. In this latter circumstance, it is the drinking that causes the additional disability, not, instead, the disability that causes the drinking.   This most recent VA examiner also concluded the Veteran’s terminal liver and kidney disease were not alternatively aggravated by his use of Oxycontin to treat the low back pain owing to his service-connected lumbar spine disability. In explanation, this most recent examiner noted that reputable pharmacological resources, including the Clinical Pharmacology “clinicalkey.com” website, do not include mention of adverse effects of Oxycontin causing or contributing to renal failure or hepatitis. Viewed holistically, the Board takes these statements to mean the Veteran’s Oxycontin use did not render him less capable of resisting the effects of other diseases. Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (medical reports must be read as a whole and in the context of the evidence of record). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim for service connection for the cause of the Veteran’s death, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, this claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.