Citation Nr: 21021469 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-45 708 DATE: April 13, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in June 2011; the primary cause of death was accidental mixed drug intoxication. 2. The Veteran’s accidental mixed drug intoxication was not etiologically related to service and/or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1161, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2009 to June 2011. He died in June 2011, and the Appellant is his surviving spouse. In September 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). In September 2019 and February 2021, the Board of Veterans’ Appeals (Board) remanded this case for additional development. Entitlement to service connection for cause the cause of the Veteran’s death is denied. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A service-connected disability is considered 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. A service-connected disability is considered the contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires: (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). At the time of his death in June 2011, the Veteran was not service-connected for any disability, as he was still serving on active duty. However, at the time of his death, the Veteran was receiving inpatient psychiatric care at a mental health facility (UBH) after he attempted to commit suicide by ingesting a large amount of cocaine. The Veteran’s death was determined to be accidental and was caused by mixed drug intoxication. See June 2011 Autopsy Report. The appellant argues that the Veteran should be service-connected for a claimed psychiatric disability, to include posttraumatic stress disorder (PTSD) caused by or incurred during active duty service, and that this claimed psychiatric disability contributed to the Veteran’s death. See November 2016 Appellant’s Brief and May 2012 Notice of Disagreement. In October 2020, a VA medical opinion was obtained to address whether, at the time of the Veteran’s death, he had a psychiatric disability, to include PTSD, which was etiologically related to his active duty military service. After reviewing the record, the examiner determined that, at the time of the Veteran’s death, he had diagnoses consisting of major depressive disorder, stimulant use disorder, and cannabis use disorder. Additionally, the examiner opined that these psychiatric disorders were at least as likely as not incurred during the Veteran’s active duty military service. However, despite having psychiatric disorders at the time of his death, the examiner opined that it was less likely than not that the Veteran’s psychiatric disorders caused or contributed substantially or materially to his death. In his rationale, the examiner explained that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner noted that the record did not contain sufficient evidence of a distressing experience that would satisfy the trauma criteria for a stressor-related disorder, to include PTSD. When addressing the Veteran’s substance disorders, the examiner held that it appeared that the Veteran’s pre-military drug-related behaviors continued during his military service and contributed to his inpatient psychiatric treatment. The examiner’s rationale also included excerpts from UBH treatment notes, which indicated that the Veteran was, “doing fairly well [in] the unit” and that he was “very effectively integrated.” When addressing the Veteran’s death, the examiner, citing the Department of the Army criminal investigation report, noted that, while at UBH, the Veteran took two oxycodone pills that he received from a fellow servicemember. The report found that the oxycodone, in combination with his prescribed medication proved overly sedating and ultimately led to the Veteran’s demise. The examiner cited the Veteran’s autopsy toxicology report, which showed that he died from a mixed drug intoxication; however, the death was deemed to be an accident. Based on the foregoing, the examiner ultimately concluded that neither the Veteran’s major depressive disorder nor his substance use disorders contributed substantially or materially to his death. See October 2020 VA Medical Opinion. Pursuant to the February 2021 Board remand, another VA medical opinion was obtained in February 2021 to address whether the Veteran’s substance use disorders were aggravated by his major depressive disorder, and if so, whether the substance use disorders caused or contributed materially to the Veteran’s death. The examiner opined that the Veteran’s substance use disorders were less likely than not aggravated by his major depressive disorder. In reaching this conclusion, the examiner explained that the record indicated that the Veteran’s substance use disorders predated his military service, while his diagnosis of major depressive disorder was made during service. Furthermore, the examiner noted that the Veteran had a long history of drug abuse dating back to his childhood, and that he had allegedly reported that when he got out of the military he would, “go back to selling drugs.” Ultimately, the examiner held that there was no evidence to suggest that the Veteran’s substance abuse disorders were aggravated beyond their natural progression by his major depressive disorder. To the contrary, the examiner opined that it was more likely that the Veteran’s major depressive disorder was, at least in part, related to the “consequences and distresses resulting from his involvement with substance abuse.” See February 2021 VA Medical Opinion. The Appellant believes the Veteran had a psychiatric disability, to include PTSD, that was caused or incurred during active duty military service, and that this claimed psychiatric disability contributed to the Veteran’s death. Notably, at the September 2019 Board hearing, the Appellant testified that after returning from Iraq, the Veteran had many outbursts and was very angry all the time. Additionally, she indicated that the Veteran had told she could not understand the things he had seen and had to do while serving in Iraq. See September 2019 Board Hearing. The Board acknowledges that the lay statements of record from the Appellant and her representative seem to suggest that the Veteran was different after his deployment to Iraq. However, as laypersons, they are not competent to diagnose PTSD or any other psychiatric condition or link the Veteran’s psychiatric symptoms to his cause of death. This requires medical expertise and knowledge outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In summary, the competent and probative evidence of record does not show that the Veteran's death was in any way related to his active duty service. There is also no competent and probative evidence of record that suggests a disability that warranted service connection was a contributory cause of his death. In the absence of any probative evidence that a disability incurred in or aggravated by service was either the principal or primary cause of death, or that it was a contributory cause of death, service connection for the cause of the Veteran's death is not warranted. The Board is sympathetic to the Appellant's loss of her husband, the Veteran, but for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.