Citation Nr: 21041665 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-42 515A DATE: July 9, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran's death certificate reflects that his demise was cause by end stage liver disease. 2. Resolving all reasonable doubt in the appellant's favor, the most probative evidence is in relative equipoise concerning whether the Veteran's fatal end stage liver disease was at least as likely as not caused by service-connected schizophrenia, to include medications prescribed for treatment, thereof. CONCLUSION OF LAW The criteria to establish service connection for cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.312, 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1971 to February 1974. He died in February 2013, and the appellant in this matter is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The appellant expressed timely disagreement with this determination, and the present appeal ensued. The appellant's appeal was previously before the Board in August 2018, December 2019, November 2020, and April 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the appellant in substantiating her appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The appellant's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for the cause of the Veteran's death is granted. The appellant seeks Dependency and Indemnity Compensation (DIC) benefits, and the regulations provide that such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of a veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312 (b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of the death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran's service treatment records reflect that he began experiencing psychiatric symptoms during active duty upon hearing of his brother's involvement in a fatal motor vehicle accident in February 1972. A diagnosis accounting for these symptoms was not identified at that time, and it appeared that such resolved as Veteran separated from the United States Army without further incident in February 1974; however, he was institutionalized shortly after his service separation, and a diagnoses of undifferentiated schizophrenia was rendered in March 1975. Inpatient treatment records reflect that the Veteran was prescribed several medications, including Trilafon and Thorazine, for symptom management during this period of hospitalization and subsequent recurrences of schizophrenic episodes in 1976, 1977, 1980. The Veteran's mental health struggles continued throughout the 1980s and 1990s, and treatment records reflect his reports of high-risk activities in connection with his schizophrenia, to include abuse of alcohol, cocaine, and intravenous drugs. Consequently, the Veteran's physical health began to deteriorate, and diagnoses of thrombocytopenia, hepatitis C, cirrhosis, and choledocholithiasis, were rendered. In a June 2010 Decision Review Officer (DRO) decision, the AOJ granted the Veteran's claim to establish service connection for schizophrenia; a 100 percent initial evaluation was assigned from October 17, 2005. The Veteran relocated from the Commonwealth of Puerto Rico to Florida in late-2010 or early-2011, and a diagnosis of hepatocellular carcinoma (hepatoma) followed soon thereafter. This disease was treated with chemoembolization; however, the Veteran's liver began to fail, and it was determined that he was not a good candidate of transplant surgery. The Veteran was admitted to hospice care in December 2012 for the treatment of his various liver diseases and complications, and he subsequently experienced a progressive physical decline. Unfortunately, the Veteran died in February 2013, and his death certificate reflects end stage liver disease as the primary cause of death. The appellant has been very diligent in advancing theories of entitlement to the benefits she seeks. The Board acknowledges these various theories and that each has an amount of merit; however, for the reasons expressed below, the Board finds that the most probative evidence is in relative equipoise concerning whether the Veteran's fatal end stage liver disease was caused by his service-connected schizophrenia, to include the medications prescribed for treatment, thereof. As such, the Board's analysis will focus on this theory of entitlement without reaching the merits of the other theories asserted by the appellant, to include entitlement under the provisions of 38 U.S.C. § 1151. In support of her appeal, the appellant has submitted two statements from a private physician who treated the Veteran during his final days. After providing hospice and palliative care to the Veteran and completing a review of the record, the private physician opined in January 2013 and May 2013 that the Veteran's thrombocytopenia and fatal liver diseases "could be related" and "may have been as likely as not" due to the psychotropic medications prescribed and taken for his service-connected schizophrenia. As noted by the AOJ in the November 2015 Statement of the Case (SOC) and by the Board in the August 2018 remand, while these opinions clearly bolster the appellant's contentions in furtherance of her appeal, the probative weight of such is negatively impacted by a lack of fully stated rationales and the verbiage of possibility rather than probability. Notwithstanding the deficiencies of these opinions, the Board concludes that such are still probative of the matter before the Board, only to a lesser extent. Accordingly, it is necessary to evaluate the probative weight of the other nexus evidence of record addressing this point. As alluded to in the Introduction, the Board remanded the appellant's appeal for further development, to include obtaining medical opinions addressing the crux of the appellant's appeal, on several prior occasions. As a result of these remands, medical opinions were obtained by the AOJ in May 2019, April 2020, December 2020, and April 2021. As noted in the Board's prior remand, the May 2019 VA opinions are wholly inadequate for the purpose of readjudicating the appellant's appeal, as the VA clinician did not provide full answers to the questions posed or a rationale for any opinion expressed. Further, the December 2020 VA opinions only address the appellant's assertions regarding entitlement to compensation for cause of the Veteran's death under the provisions of 38 U.S.C. § 1151. Accordingly, the Board need not discuss these opinions further. In light of above, the Board must weigh the probative value of the favorable private January 2013 and May 2013 against that of the April 2020 and April 2021 VA opinions. After a review of the Veteran's file, the VA clinicians opined in April 2020 and April 2021 that the Veteran's service-connected schizophrenia did not cause or contribute to his demise from end stage liver disease; however, while these opinions appear to be unfavorable to the appellant's appeal, a closer reading of such reflects that the VA clinician's rationale actually bolster the appellant's assertions and the favorable January 2013 and May 2013 private opinions. To the above point, both VA clinicians noted that Trilafon and Thorazine, which were prescribed to the Veteran during inpatient treatment of schizophrenia during the 1970s and 1980s, are now known to damage the liver, and the latter medication is no longer in use because of this. Both VA clinicians based the unfavorable opinions on the premise that the liver damage caused by these medications ceased when the prescriptions were discontinued in the 1980s, and the Veteran's thrombocytopenia and other liver diseases were more likely due to his intervening abuse of alcohol, cocaine, and intravenous drugs. While the Board has considered these statements, such do not rule out that these medications initially compromised the Veteran's liver functioning or that the Veteran's alcohol and polysubstance abuse, which continued to damage the Veteran's liver, were secondary to his service-connected schizophrenia. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). To this extent, the Board concludes that the rationale of the April 2020 and April 20201 VA opinions, in fact, bolster the appellant's assertions and add probative weight to the favorable private January 2013 and May 2013 opinions. Armed with the above conclusions, the Board finds that the most probative evidence is in relative equipoise concerning whether the Veteran's fatal end stage liver disease was at least as likely as not caused by service-connected schizophrenia, to include medications prescribed for treatment, thereof. Governing VA laws provide that in cases, such as the present, all reasonable doubt must be conferred in the appellant's favor and after doing so, the Board concludes that service connection for cause of the Veteran's death is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.