Citation Nr: 21029287 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-37 499 DATE: May 13, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. REMANDED Entitlement to a rating in excess of 30 percent for an acquired psychiatric disorder, to include depressive disorder, is remanded. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran died on October [REDACTED], 2013; a medical examiner report and certificate of death both list cocaine toxicity as the immediate cause of death. 2. The Veteran was service connected for an acquired psychiatric disorder at the time of his death; the evidence is at least in equipoise as to whether he had a cocaine abuse disorder that was secondary to his acquired psychiatric disorder and which was the primary cause of his death due to cocaine toxicity. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty, including from November 1985 to October 1988. He died in October 2013. The appellant is the Veteran's surviving spouse. These matters were last before the Board in October 2019, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for it to make a determination as to whether the appellant is a proper substitute for the Veteran's extant claim of service connection for an acquired psychiatric disorder. In a December 2019 correspondence, the AOJ notified the appellant that her substitution request had been accepted and that she was a proper substitute. The AOJ then returned the case to the Board for its own adjudication. The Board notes that it has considered whether a claim for TDIU has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU with increased rating claims when the issue of unemployability either is raised expressly or by the record. Here, the Board confirms that the issue of entitlement to TDIU is presently before it, given the Veteran's prior April 2010 TDIU application wherein he asserted that his mental health issues contributed to his inability to secure and maintain substantially gainful employment. Accordingly, this issue has been added to the appeal and is addressed below. Service connection for the cause of the Veteran's death The appellant contends that the Veteran's service-connected acquired psychiatric disorder was a contributory cause of his death. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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. 38 C.F.R. § 3.312. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The record demonstrates that the Veteran died on October [REDACTED], 2013. A February 28, 2014 report of investigation by a medical examiner found that the cause of the Veteran's death was cocaine toxicity, and that the manner of death was accidental. The report also lists arteriosclerotic cardiovascular disease cardiomegaly as a contributing cause of death. To the extent that the appellant's death is attributed to cocaine abuse, the service connection entitlement statutes set forth in 38 U.S.C. § 1131 provides that no compensation shall be paid if the disability is a result of a veteran's own willful misconduct or abuse of alcohol or drugs. The regulatory provisions of 38 C.F.R. § 3.301 address line of duty and misconduct determinations. Under 38 C.F.R. § 3.301(a), direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of a veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. See also 38 C.F.R. § 3.1 (m). The Veteran was not service connected for a substance abuse disorder at the time of his death. That said, the appellant asserts that the Veteran's acquired psychiatric disorder directly caused his substance abuse disorder which was the principal cause of his death. Service connection may be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (b); Id. In order to qualify for service connection in this regard, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by a service-connected disorder. In support of her contention that the Veteran's substance abuse disorder was secondary to his service-connected acquired psychiatric disorder, and thus eligible for service connection for the cause of the Veteran's death, the appellant has submitted a July 2018 correspondence from a Dr. P.J., who indicated that she spoke with the appellant and reviewed the toxicology report and medical examiner report. Dr. P.J. opined that it was at least as likely as not that the Veteran's acquired psychiatric disorder directly caused his cocaine abuse which in turn was the primary cause of his death. As justification, Dr. P.J. referred to treatment records in the few months prior to the Veteran's death which show that he exhibited symptoms of severe depression as well as the appellant's testimony that the Veteran was using cocaine regularly in the weeks leading up ot his death. Dr. P.J. also detailed several excerpts from medical treatises which further suggested a significant correlation between substance use and depression. The Board notes that there is no VA examination or opinion of record which has addressed the appellant's contention that the Veteran's cocaine abuse was secondary to his service-connected acquired psychiatric disorder, and by extension that his acquired psychiatric disorder was a contributory cause of death by cocaine toxicity. What is of record, however, is the positive opinion of Dr. P.J., which the Board finds to be highly probative as it was based on at least some review of the claims file and was supported by a rationale that referred to medical literature suggesting a connection between depressive disorders and substance abuse. Sklar v. Brown, 5 Vet. App. 140 (1993). Resolving all doubt in favor of the appellant, the Board must conclude that the evidence is at least in equipoise as to the question of whether the Veteran's abuse of cocaine, which was the primary cause of his death, developed as secondary to service-connected acquired psychiatric disorder. Consequently, service connection is warranted for the cause of the Veteran's death. REASONS FOR REMAND 1. Increased rating for an acquired psychiatric disorder The appellant contends that the Veteran's acquired psychiatric disorder worsened in severity prior to his death. A review of the claims file reflects that the most contemporary available VA medical records in the claims file date from December 2011. However, the appellant's representative in a November 2018 correspondence as well as during the January 2019 hearing referred to treatment records from Daytona OPC that pertain to the time period in the months immediately preceding the Veteran's death. These purported treatment records were also detailed by Dr. P.J. in her July 2018 correspondence. A thorough review of the claims file does not reflect that a copy of these records has been added to the claims file. According to both the appellant's representative as well as Dr. P.J., these records suggest that the Veteran began to exhibit more severe symptomatology related to his acquired psychiatric disorder, to specifically include suicidal ideation. Such evidence, if reviewed by VA, may provide support for a determination that an increased rating is warranted for the acquired psychiatric disorder. On remand, the AOJ should attempt to obtain any additional records pertaining to the Veteran's post-service treatment for an acquired psychiatric disorder, and then reevaluate the appellant's claim seeking an increased rating. 2. Entitlement to TDIU is remanded. The claim of entitlement to TDIU is inextricably intertwined with the increased rating claim still on appeal, and accordingly must be deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Contact the appellant and afford her the opportunity to identify or submit any additional pertinent evidence regarding the Veteran's treatment for his acquired psychiatric disorder prior to his death. To that end, the appellant should also be invited to submit additional evidence in support of her claim, to include statements from friends and relatives of the Veteran. Based on her response, the AOJ must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Specifically, the AOJ must attempt to obtain copies of treatment records from Daytona OPC that have been detailed on numerous occasions by the appellant's representative. Furthermore, regardless of how the Veteran responds, the AOJ must obtain and associate any heretofore unavailable treatment records from any VA medical center at which the Veteran sought treatment prior to death, pursuant to the provisions of 38 C.F.R. § 3.159(e). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.