Citation Nr: 21031291 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-46 529 DATE: May 21, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. 1318 is dismissed as moot. FINDINGS OF FACT 1. The Veteran died in June 2014. The immediate cause of death listed on the death certificate was end stage liver disease with no other significant contributing conditions. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD) and tinnitus, and the Veteran received a total disability rating based on individual unemployability (TDIU). 3. The preponderance of the evidence establishes that the cause of the Veteran's death was etiologically related to his active service, to include his service connected PTSD. 4. DIC based on service connection for the cause of the Veteran's death is a greater benefit than DIC based on section 1318; therefore, the latter claim is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1963 to May 1966. He died in June 2014. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans Appeals (Board) from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In her September 2016 formal appeal to the Board, the appellant requested a videoconference hearing before the Board. See VA Form 9, received by VA September 9, 2016. In an August 2019 communication, the appellant withdrew her hearing request. See representative statement, received by VA August 30, 2019. As such, the Board considers the hearing request to be withdrawn. In October 2019, additional evidence was submitted by the appellant's attorney. Initial consideration of this evidence by the agency of original jurisdiction (AOJ) was waived. Therefore, the Board may consider this evidence in the first instance. 1. Service Connection for the Cause of the Veteran's Death 2. DIC under 38 U.S.C. 1318 The appellant asserts that the Veteran's service-connected PTSD caused his alcoholism, and alcoholism caused or aggravated the Veteran's end stage liver disease from cirrhosis, which eventually led to his death. To prevail on a direct service connection claim, there must be evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection may be granted for the cause of the veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. By law, compensation shall not be paid if a disability is the result of the Veteran's own willful misconduct or abuse of alcohol. 38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301. Willful misconduct precludes a finding of service connection for the purposes of establishing service connection for the cause of death under 38 U.S.C. § 1310. Myore v. Nicholson, 489 F.3d 1207, 1212 (2007). The Veteran's alcoholism would fall under "willful misconduct." When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Compensation can be allowed in case where the Veteran's alcohol abuse disability "results from" a line of duty disease or disability. Allen (William F.) v. Principi, 237, F.3d. 1377-78 (Fed. Cir. 2001). In this case, there is medical evidence that has been submitted to support the appellant's contention that the Veteran's PTSD caused his alcoholism. There is medical evidence stating that the Veteran's alcohol abuse was involuntary in nature and/or had secondarily resulted from a disorder of non-willful misconduct origin or his service-connected PTSD. The Veteran's PTSD was "severe" by clinical standards he received a 70 percent rating for it since May 2008. He also received individual unemployability (a total rating) since May 2008. VA treatment records show that the Veteran was diagnosed with end stage liver disease from cirrhosis. See VA treatment records, May 29, 2014. Multiple clinical records showed that the Veteran's alcohol abuse was secondary to his service-connected PTSD. The Veteran was noted to engage in heavy alcohol use as a coping mechanism and that he wished to learn how to manage his PTSD symptoms without the use of alcohol. See VA treatment records, December 20, 2004. Another treatment note stated that the Veteran wanted to cut down on his alcohol use but that it was his primary coping skill. See VA treatment records, August 6, 2004. A December 2007 examiner diagnosed the Veteran with alcohol dependence, most likely related to PTSD, and that the Veteran spend much of each day drinking heavily to mask or numb his PTSD symptoms. See Initial Evaluation for PTSD, December 24, 2007. Another examiner opined that the Veteran's alcohol dependence was more likely than not secondary to his PTSD. See PTSD examination, July 12, 2008. An October 2019 private psychologist opined that the Veteran's clinical records indicated that his alcohol use disorder was related to, and secondary to, his service-connected PTSD. As such, the psychologist continued, the alcohol use disorder was at least as likely as not incurred in, or caused by, the service-connected PTSD. See medical opinion, A.H., received by VA October 21, 2019. There is no contrary opinion of record. Although this October 2019 opinion contains only a brief rationale, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). The Veteran's contemporaneous clinical records further support this opinion. Based on the medical evidence of record and when resolving the benefit of the doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran's death is warranted. As DIC based on service connection for a veteran's cause of death is a greater award than that for DIC benefits under 38 U.S.C. § 1318, when the former is awarded, the latter will be rendered moot. In this decision, the Board has found that the appellant is entitled to DIC benefits based on entitlement to service connection for the Veteran's cause of death. Thus, the claim for DIC based on 38 U.S.C. § 1318 is rendered moot and dismissed. As such, service connection for the cause of the Veteran's death, namely end stage liver disease, is warranted. 38 U.S.C. § 1116; 38 C.F.R. § 3.309, 3.312. Resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lech, 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.