Help with DIC claim

[elin]

Hello all, 

I am a widow and I am trying to file a DIC claim, but I need help.

My husband died March 21, 2020 from liver failure (primary) and chronic cirrhosis (secondary). There was not an autopsy.  He was an OIF veteran, and was rated 100% due to PTSD and major depression on August 12, 2013.  His rating was made permanent and total in December 1, 2019, so I know I don't qualify based on the 10 year requirement. 

However, I believe his death from alcohol is directly related to his PTSD and major depression. I had conversations with him while he was still alive where he admitted as much.  He was seeing a counselor to help with his depression, I have some notes from her, where she notated that he was drinking less that week.  I called her to see if she could provide a statement to help, but she had to call her malpractice insurance company first, and I have not heard back. 

I have initiated the claims process with the VA, and am currently working on form 21-4138 Statement in Support of Claim.  I have family and friends who can make statements supporting my claim that he drank to self-medicate for his PTSD. 

Any tips or advice you can give me to help fill this form out without screwing myself over would be appreciated!

Thanks, 

Erin  

 

[Berta]

 

Thanks for moving the profile question to our DIC forum.

As I mentioned in my profile response this will fall under Allen V Principi.

The link to the law firm explains more.

These cases are very difficult to succeed in.

You will need to get a copy of your husband;s C file from your VARO.

You will need to get copies of all of his private and VA medical Records.

And I suggest that you get his SMRs and 201 Personnel file from the Military-

Vets can get their C files with a 21-3288. The widows forms have changed- I am not sure what form you need.

I will check tomorrow with the Office of Survivors-VA.

The form for his C file must go to the VA Regional Office he dealt with.

I suggest you call the VA medical Center where he was treated to see if they have a brief form you need to fill out and sign for his VA medical records. You would need to speak to their Records Access Officer ( sometimes called their FOIA,Privacy Act officer)The medical records form has to be submitted to the VAMC where he was treated.I obtained my dead husband's medical records this way, by contacting the main VAMC who was treating him when he died. I believe I had to show them a copy of his death certificate to prove I was his surviving spouse.

The SMRs and 201 file can be obtained here :

https://www.google.com/search?q=NARA&rlz=1C1CHBF_enUS695US695&oq=NARA&aqs=chrome..69i57.2884j0j8&sourceid=chrome&ie=UTF-8

Click on the Veterans Records button. You can file out the SF180  on line and they will need info from his DD 214 (and 215 if he has  a DD 215)

Unless the process has changed, you will need to print off the bar coded thing they tell you to print off, and then sign, copy  and keep copy for your records, and mail it to specifically where they direct you to.

Did he ever have Hepatitis C? If that is in his records it is important that VA knows that and also an independent Medical doctor-because you will need a very strong medical opinion to support your DIC claim.

One of the vets I knew from the Vet Center I volunteered at had a severe alcohol problem.

He also had 100% P & T SC for PTSD. After we moved to NY and got a phone installed ( not easy in rural NY in those days) we called the Vet Center to see how everyone was doing.

 

I was heartbroken to learn that this vet had died, after we moved, due to cirrhosis of the liver. A highly decorated Vietnam veteran, dead at age 39,

 

I knew his family, and he left a devastated wife and three young sons. The VA did all they could to help him stop drinking.

 

His death was declared as willful misconduct. His 100% P & T award was only 4 years old, so no DIC under 1318.No DIC at all.

 

I have no idea if the wife even tried to obtain a strong IMO, because at that time, pre -internet as it is today, it was practically impossible to find an IMO doctor. There was no other income to this family when the veteran died.I also knew the wife and she had apparently told VA some stuff , about his heavy drinking before he entered the Army, when he first filed the PTSD claim, that sure would not help any DIC claim,- in a documented interview she had with a VA social worker.

 

 

 

 

This vet had service connected "PTSD with alcoholism,"  and the BVA applied Allen V Principi.

 

"As there is no negative medical evidence to the contrary (i.e. evidence reflecting that the Veteran's alcohol disorder was not related to his PTSD, and/or evidence reflecting that the Veteran's fatal metastatic adenocarcinoma was not related to his alcohol and tobacco use), the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD was a contributory cause of death.  See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (providing that compensation may be paid "for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability").  Entitlement to service connection for the cause of the Veteran's death is therefore warranted.  38 U.S.C. § 1310; 38 C.F.R. § 3.312."

The widow had a Very strong IMO from a psychologist as well as a superb vet attorney:Robert V. Chisholm, Esq. 

https://www.va.gov/vetapp17/files9/1759897.txt

 

The BVA awarded DIC. ( Did the VA award him with PTSD with alcoholism on that PTSD award letter? As in above case? Still you will need a very strong IMO from a Psychologist or psychiatrist with enough expertise to opine on the claim.

 

I only found one other case that is similar-

"FINDINGS OF FACT

1.  The Veteran's alcoholism has been shown to be secondary to his service-connected PTSD.  

2.  Competent medical evidence of record is in equipoise as to whether the Veteran's end stage liver disease to include hepatitis C and cirrhosis, was caused or aggravated by his alcoholism.  

3.  The Veteran's death certificate shows that he died in July 2011 and the immediate cause of his death was listed as end stage liver disease.  

4.  At the time of the Veteran's death, he was service-connected for PTSD, rated as 50 percent disabling; and bilateral tinnitus, rated as 10 percent disabling.  

5.  Resolving all doubt in favor of the appellant, the Veteran's PTSD with alcoholism combined with other factors to cause death, and aided or lent assistance to the production of death."

The most probative medical opinion came from https://www.google.com/search?q=NARA&rlz=1C1CHBF_enUS695US695&oq=NARA&aqs=chrome..69i57.2884j0j8&sourceid=chrome&ie=UTF-8a VA nurse practitioner who had reveiwed all of the veterans medical records.(this does not happen much today as VA medical people are unwilling to be that thorough and dont have the time. Many are federal contractors anyhow and might be prohibited by writing IMOs))

 

 

 

https://www.va.gov/vetapp15/files2/1517822.txt

 

Allen V Principi is here:

https://casetext.com/case/allen-v-principi

 

An Independent Medical examiner will need to follow our IMO guidelines in our IMO forum.

They (IMOs)can be quite expensive but often the only way these type of claims  can be awarded- if,in fact, the independent doctor makes a full and substantial medical rationale for service connected death , and cites not only specific medical records of the veteran,  but also specific treatises or studys on how veteran's can self medicate PTSD and other MH issues. Their opinion must be strong enough to rule out "willful misconduct", before the VA tries to use that ,to deny.

 

An independent medical doctor, with expertise in the field of PTSD,  will give all of your husband's medical records the most thorough review they will ever have.And hopefully their opinion will advance the claim to an award....but sometimes an IMO will not help.It all depends on the circumstances of his death . the information in his C file and medical records, and all other facts such as within Allen V Principi.

 

We have a list of IMos doctor here at hadit and even your state might have their own list , if you google Doctors who do Independent Medical Reviews in the state of  '.........'.    .

 

 

 

 

Edited July 28, 2020 by Berta
added more (see edit history)

[Berta]

This might come out better- I could not use the text feature:

Citation Nr: 1759897 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-27 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for lung cancer, to include as due to herbicide exposure and/or as secondary to a service-connected disability, for purposes of accrued benefits under 38 U.S.C. § 5121A. 2. Entitlement to service connection for metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes, to include as due to herbicide exposure and/or as secondary to a service-connected disability, for purposes of accrued benefits under 38 U.S.C. § 5121A. 3. Entitlement to service connection for the cause of the Veteran's death. 4. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to January 1969. He died in December 2008, and the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. After reviewing the contentions and evidence of record, as well as the applicable case law and regulations, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. In October 2008, the Veteran submitted a claim for service connection for lung and bone cancer, to include as due to herbicide exposure. In this regard, the service connection issues on appeal encompass all diagnosed cancers (in addition to the claimed lung and bone cancer), to include metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Prior to any development or adjudication of the claim, the Veteran died in December 2008. In an August 2015 decision, the Board denied the appellant's claim of entitlement to service connection for lung cancer, and remanded the remaining claims to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. In that August 2015 decision, the Board determined that the appellant was substituted for the Veteran in this case. The appellant appealed the August 2015 Board denial of service connection for lung cancer to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in February 2017, the Court vacated the Board decision to the extent that in denied the claim for service connection for lung cancer for accrued benefits purposes under 38 U.S.C. § 5121A, and remanded the matter to the Board for additional proceedings consistent with the Memorandum Decision. Although there is no formal substitution document from the Agency of Original Jurisdiction (AOJ), given the procedural background of the case, it is proper to treat the appellant as substituted for the Veteran in this case. Pursuant to the August 2015 remand directives, the AOJ issued a Statement of the Case (SOC) in connection to the issue of entitlement to DIC benefits under 38 U.S.C. § 1318, dated in September 2015. The Veteran perfected a timely appeal of this claim dated in October 2015. The AOJ also referred the claims file to a VA physician for a medical opinion addressing whether the Veteran's metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands and lymph nodes is related to his service, to include as due to exposure to herbicides. After reviewing the claims file, the VA physician issued a medical opinion dated in September 2015 which addressed the August 2015 Board remand instructions. A copy of the September 2015 addendum opinion has been associated with the claims file. The AOJ considered this evidence, and readjudicated the claim by way of the August 2016 Supplemental Statement of the Case (SSOC). The appellant's claims file has since been returned to the Board. As will be discussed further herein, the Board finds that the AOJ substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant requested a hearing before the Board, and was scheduled for a videoconference hearing in September 2017. However, in correspondence dated in August 2017, the appellant withdrew her hearing request. Under 38 C.F.R. § 20.704 (e), a request for a hearing may be withdrawn by an appellant at any time before the hearing. The issue of entitlement to service connection for lung cancer to include as secondary to a service-connected disability, for purposes of accrued benefits under 38 U.S.C. § 5121A, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's alcoholism was caused and therefor secondary to his service-connected PTSD. 2. The Veteran's metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes, was caused, in part, by his alcohol use. 3. The Veteran's original death certificate was dated in January 2009, and reflects that he died in December 2008 with the immediate cause of his death listed as metastatic cholangiocarcinoma. An amended death certificate was submitted in June 2009 and listed metastatic adenocarcinoma of unknown etiology as the immediate cause of the Veteran's death. 4. At the time of the Veteran's death, he was service-connected for PTSD, rated as 50 percent disabling; residual malunion from fracture of the left humeral shaft with left impingement syndrome, rated as 30 percent disabling; tinnitus, rated as 10 percent disabling; residuals of concussion, rated as 10 percent disabling; post-traumatic arthritis of the left elbow, rated as noncompensably disabling; and residuals of fractured right jaw, rated as noncompensably disabling. 5. The Veteran's PTSD with alcoholism combined with other factors to cause death, and aided or lent assistance to the production of death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes, have all been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for the cause of the Veteran's death have all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1310, 5107 (2012), 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2017). 3. The appellant's claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is moot. 38 U.S.C. § 1318 (2012). 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Prior to his December 2008 death, the Veteran maintained that he developed metastatic adenocarcinoma as a result is his military service, to include his exposure to herbicides in-service. See October 2008 Statement in Support of Claim submitted by Veteran. In addition, the appellant contends that the Veteran self-medicated with alcohol to help cope with his posttraumatic stress disorder (PTSD) symptoms, which developed due to his combat experiences, and the traumatic events he was exposed to, in Vietnam. According to the appellant, the Veteran's treatment records reflect that the Veteran drank excessively as a way to alleviate his symptoms, and his excessive drinking led to the development of his metastatic adenocarcinoma of unknown primary origin. Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Secondary service connection is also available for chronic aggravation of a nonservice-connected disorder. In reaching the determination as to aggravation of a nonservice-connected disability, the baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular nonservice-connected disorder. See 38 C.F.R. § 3.310. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). If a Veteran was exposed to an herbicide agent, certain diseases listed at 38 C.F.R. § 3.309(e) will be considered service connected even though there is no record of such disease in service. Lung cancer is among the listed disabilities attributable to herbicide exposure. Although the law provides that no compensation shall be paid if the disability for which service connection is sought is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs, the statute does not preclude compensation for an alcohol abuse disability secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001); 38 U.S.C. §§ 105 (a), 1110. Instead, the law precludes compensation for "primary" alcohol abuse disabilities and for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Id. at 1376. "Primary" means an alcohol abuse disability arising during service from voluntary and willful drinking to excess. Id; see also 38 U.S.C. § 105 (a). The cases where service connection may be granted and compensation paid for an alcohol abuse disability are quite limited. Allen, 237 F.3d at 1381. Service connection and compensation may only be granted if such Veterans can "adequately establish that their alcohol . . . disability is secondary to or is caused by their primary service-connected disorder." Id. "uch compensation would only result 'where there is clear medical evidence establishing that the alcohol . . . disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.'" Id. The Veteran died in December 2008, at the age of 61. According to the original death certificate (dated in January 2009), the immediate cause of his death was listed as metastatic cholangiocarcinoma. An amended death certificate was submitted in June 2009, and listed metastatic adenocarcinoma of unknown etiology as the immediate cause of the Veteran's death. The Veteran's records reflect that he served in the Republic of Vietnam during the applicable time period, and thus he is presumed to have been exposed to herbicide agents in service. 38 U.S.C. § 1116 (f) (2012). At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), which was evaluated as 50 percent disabling; residual malunion from fracture of the left humeral shaft with left impingement syndrome, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; residuals of concussion, evaluated as 10 percent disabling; post-traumatic arthritis of the left elbow, evaluated as noncompensably disabling; and residuals of fracture right jaw, evaluated as noncompensably disabling. He had a combined rating of 70 percent, effective from March 15, 2004, and he had been granted entitlement to a total rating based on individual unemployability due to his service-connected disabilities (TDIU) effective from September 8, 2004. The appellant essentially contends that the Veteran's PTSD contributed to his cause of death. Specifically, she maintains that the Veteran began using alcohol and tobacco as a way to cope, treat, and alleviate his PTSD symptoms, and that the cause of his death (diagnosed as metastatic adenocarcinoma of unknown etiology) was due to his alcohol/substance abuse. In a July 2017 affidavit, the appellant asserted that the Veteran told her that he continued to drink and smoke to forget about his experiences in Vietnam, and that these activities were the only way he could calm his nerves. In the alternative, the appellant also contends that the Veteran's metastatic adenocarcinoma arose as a result of his in-service herbicide exposure. Review of the Veteran's post-service VA treatment records reflect that he was seen at the VA Mental Health clinic on a regular basis with complaints of irritability, depressed mood, anger, increasing nightmares, and difficulty working with others. During a March 2004 VA outpatient visit, the Veteran reported symptoms of increasing anger, and stated that he drinks on a daily basis to help stop his nightmares. During a subsequent VA treatment visit also dated in March 2004, the Veteran reported to drink beer on a regular basis, and stated that he drinks somewhere between 24 to 74 ounces of beer a day. The treatment provider noted that they discussed the Veteran's alcohol use and how it relates to his mood symptoms, as well as how it works against the effects of his prescribed medications. He also reported to smoke regularly and stated that he would consider smoking cessation counseling at a later time, but not at this time because he was under "too much stress." The Veteran was assessed with ongoing diagnoses of PTSD, depression, and alcohol abuse during these treatment visits. At the April 2004 VA examination, the Veteran reported a history of alcohol and drug use and the VA examiner noted that his current alcohol use consisted of up to 72 ounces of beer daily, and the Veteran had undergone counselling on the dangers of mixing alcohol with his medications. The Veteran also reported to smoke tobacco. He declined to join an alcohol treatment program or a smoking cessation program. During an August 2004 VA treatment visit, the Veteran admitted to recently drinking a few beers a day to help steady his bad nerves. It was noted that he had a history of treatment for alcohol dependence. The Veteran specifically reported to drink three to four drinks a day and approximately two quarts of beer twice a week. At a November 2004 VA treatment visit, the Veteran stated that he drinks two quarts of beer daily during the week and three quarts a day on weekends. He also added that he started smoking and drinking heavily while serving in Vietnam. During a subsequent treatment visit also dated in November 2004, the Veteran reported that he had not had alcohol for one week but felt more depressed since stopping his alcohol use. VA treatment records detailed the history of the Veteran's treatment for, and diagnosis of, metastatic adenocarcinoma. In October 2008, the Veteran presented at the hospital with right upper quadrant pain of one week duration. He was initially taken to Corpus Memorial Hospital and a liver/gallbladder mass was found on computerized axial tomography (CT) dated October 11, 2008. Also, at that time, the CT revealed visualized portions of the lung bases that were significant for atelectasis in the dependent portions of the lungs, which were otherwise clear with no pleural fluid collection or pneumothorax present. Atelectasis is defined as "incomplete expansion of a lung or a portion of the lung; airlessness or collapse of a lung that had once been expanded." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 173 (31st Ed. 2007); see also 38 C.F.R. § 20.903(b)(2) (2017) (notice to the appellant is not required if the Board uses a recognized medical treatise or medical dictionary for the limited purpose of defining a medical term and that definition is not material to the Board's disposition of the appeal). The Veteran was subsequently transferred to VA for medical treatment, and during an October 2008 treatment visit, a CT showed a suspicious lesion in the liver, adjacent to the gallbladder with sclerotic bony metastatis. On October 15, 2008, a liver mass biopsy showed poorly differentiated adenocarcinoma. In addition, a CT of the head showed enhancing lesion in the sphenoid bone, which extended into the left retrobulbar fat planes, displaced the left lateral rectus muscle medially, and caused mild proptosis of the globe. In a CT of the chest, the impression was multiple sclerotic bone lesions consistent with extensive skeletal metastases with several small pulmonary nodules lying within the areas of fibrosis. Given this association, the VA radiologist suspected that these were probably post-inflammatory or post-infectious; however, the VA radiologist indicated that there was absolutely no way to exclude developing pulmonary metastases. Significantly, in subsequent VA treatment records, the Veteran was diagnosed with metastatic adenocarcinoma with unknown primary and metastatic cholangiocarcinoma. Cholangiocarcinoma is defined as "an adenocarcinoma arising from the epithelium of the intrahepatic bile ducts, composed of eosinophilic cuboidal or columnar epithelial cells arranged in tubules or acini with abundant fibrous stroma. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 173 (31st Ed. 2007). In a VA discharge note dated on December 20, 2008 (just nine days prior to the Veteran's death on December 29, 2008), the discharge diagnosis was shown to be metastatic carcinoma, presumed biliary primary, and metastatic lesions with compression of spinal nerves. In a May 2009 letter, the Veteran's treating VA oncologist indicated that the Veteran was treated for poorly differentiated adenocarcinoma with unknown primary that was metastatic to the bone, liver, adrenal glands, and lymph nodes. Pursuant to the August 2015 remand directives, the Veteran's claims file was referred to a VA physician in September 2015. Upon reviewing the claims file, the VA physician concluded that it was less likely than not that that the Veteran's poorly differentiated metastatic adenocarcinoma with unknown primary was incurred in, or caused by an in-service injury, event or illness, to include his in-service herbicide exposure. In reaching this opinion, the VA physician took note of the Veteran's diagnosis at the time of his death, but noted that gallbladder origin was highly suspected for the development of his metastatic adenocarcinoma based upon a liver lesion near the gallbladder and enlarging lymph nodes in that area. The VA physician further noted that the diffuse metastases with a lesion in the brain, numerous bone sites, and possibly within his lungs made another origin possible. According to the VA physician, "the differential diagnosis for origin of adenocarcinoma includes primary lung cancer and prostate cancer, but there is no evidence for either of these sites as the origin, based on lack of finding a primary lesion on CT scan." The VA physician determined there to be no evidence of primary lung cancer, prostate cancer, multiple myeloma, Hodgkin's Disease, non-Hodgkin's lymphoma or a soft tissue sarcoma; cancers associated with herbicide exposure. Therefore, the VA physician determined there to be no evidence to support the appellant's assertion that the Veteran's cancer was caused by his in-service exposure to Agent Orange. Instead, the examiner determined that the Veteran's metastatic adenocarcinoma was more likely to have been caused by "his long history of both tobacco exposure by smoking cigarettes and his history of alcohol abuse both of which can lead to cancer. . . ." In reaching this determination, the VA physician referenced a medical literature article from the National Cancer Institute website (www.cancer.gov) which indicated that alcohol abuse was an independent risk factor for the development of liver cancer. He (the VA physician) found that it would be "mere speculation" to find that his herbicide exposure nearly 40 years earlier is at least as likely as not to have caused his metastatic adenocarcinoma - a disease outside the known disorders associated with Agent Orange exposure which are supported by the scientific literature. The VA physician did not address whether the Veteran's PTSD contributed, or was any way related to, the cause of his death. The appellant (through her attorney) referred the Veteran's claims file to a licensed psychologist, J.S., Ph.D. HSPP, for a medical opinion addressing whether the Veteran's PTSD was a contributory cause of his death. Upon reviewing the claims file in detail, and interviewing the appellant, Dr. S. determined with "the highest degree of certainty" that it was at least as likely as not that the Veteran used alcohol, cigarettes, and marijuana as a way to treat his PTSD symptoms and, as such, his use of substances at least as likely as not developed secondary to his service-connected PTSD "as a means of self-medicating. . . ." In reaching this determination, Dr. S. acknowledged that the Veteran was a heavy alcohol drinker, a heavy cigarette smoker, and a marijuana smoker for years leading up to his death, and that despite being warned of the dangers of tobacco use and excessive drinking, he continued to engage in these vices as a way to cope with his PTSD symptoms. During his interview of the appellant, she reported that the Veteran had guilt due to his years in Vietnam, and confided in her that the only reason he started smoking and drinking was because he wished to forget what happened during his period of service in Vietnam. According to the appellant, "[the Veteran's] smoking was terrible...and he was drinking a lot...he was always drinking. . . ." She stated that while the Veteran attempted other courses of treatment, including taking thirty different types of medication for his PTSD, these measures were not helpful. With regard to the severity of the Veteran's symptoms, the appellant recalled how the Veteran experienced ongoing panic attacks, depression, mood swings, impaired sleep habits, and nightmares that caused him to wake up screaming and hitting her. The appellant also recalled how the Veteran sometimes had thoughts of killing himself, and ended up at the hospital several times due to his suicidal thoughts. She also described the Veteran as occasionally violent in nature, and stated that at times he hit her. According to the appellant, the Veteran's self-medicating behavior persisted at an extreme level because his PTSD symptoms were severe in nature. She claims the Veteran tried to give up drinking and smoking, and even attended Alcoholics Anonymous meetings for a while, but ultimately could not stop because drinking and smoking were the only things that "would give him a little peace." Dr. S. provided a detailed review and recitation of the medical records and lay statements within the claims file, and found the appellant's self-reports to be credible and valid given the consistency between her self-reports and the records reviewed in the evaluation process. In reviewing the Veteran's medical records, Dr. S. noted that a majority of the Veteran's medical records documented the Veteran's worsening PTSD symptoms, and reflected that he had no social life, was increasingly reactive to triggers that resembled the traumatic events he encountered in service, and remained isolated and detached from other people. Dr. S. also took note of several statements issued by the appellant dated in June 2009, March 2010 and July 2017 attesting to the severity of the Veteran's PTSD symptoms. In the July 2017 affidavit, the appellant asserted that the Veteran felt he needed to drink as a way to cope with his memories of service. In addition, Dr. S. took into account the September 2015 VA examiner's conclusion that the more likely cause for the Veteran's adenocarcinoma was "his long history of both tobacco exposure by smoking cigarettes and his history of alcohol abuse both of which can lead to cancer." Based on his training, experience, and review of the relevant records, Dr. S. determined "within a high degree of medical certainty" that it is at least as likely as not that the Veteran's alcohol and tobacco use developed as secondary to his service-connected PTSD as a means of self-medication. In reaching this determination, Dr. S. relied on his review of the medical records and his interview with the appellant. Dr. S also took note of a report issued through the National Center for PTSD, and dated on August 13, 2015, which reflected that "PTSD increases the risk that you will develop a drinking problem." In another report issued from the National Institute on Drug Abuse (and dated in June 2015), it was noted that "ixty to eighty person of Vietnam Veterans seeking PTSD treatment have alcohol use problems...as compared to the rate of alcohol use problems in the general public being less than [seven percent]. . . ." According to Dr. S., "[t]his indicates that [V]eteran's being treated for PTSD are at least 9 times more likely to have alcohol use problems than the general population. . . ." As a frequent independent medical examiner of combat veterans, and as a clinical psychologist trained directly in the VAMC with combat veterans in the Houston VAMC chemical dependency unit, Dr. S. determined it to be "extremely common for veterans diagnosed with PTSD to engage in self-medication of their PTSD symptoms, using one substance or another" and "as such...it is at least as likely as not that [the Veteran] developed the use of substances, in his case alcohol, cigarettes, and marijuana, secondary to his service-connected PTSD, as a means of self-medication." Based on the statements made by the appellant, Dr. S. determined that "the [V]eteran's use of alcohol, cigarettes, and marijuana did provide some level of temporary relief from these symptoms; which, would have reinforced their continued and increased use." Dr. S. also determined, with a high degree of certainty that it was at least as likely as not that the Veteran's PTSD led to a lack of judgment/insight into the dangers of smoking and excessive drinking. In reaching this determination, Dr. S. explained that the Veteran's lack of judgment/insight stemmed both directly from his PTSD symptoms, and from his PTSD-induced self-medication with excessive alcohol use. Dr. S. relied on the medical records, his interview with the appellant, and the October 2004 rating decision, wherein the Veteran was deemed incompetent, as the basis for his conclusion. With regard to whether the Veteran's service-connected PTSD was a contributory cause of his death, Dr. S. concluded, with a high degree of certainty that: "by way of the [V]eteran's service-connected PTSD and its disturbing symptoms not being adequately treated through sanctioned and prescribed treatment methods, by way of the [V]eteran self-medicating with substances to where the [September 2015 VA examiner] stated 'can lead to cancer' and which were stated to "more likely to have caused his adenocarcinoma", by way of the [V]eteran being found 'incompetent' and having a gross lack of judgment/insight into the dangers of smoking and excessive drinking, and by way of chronic stress disorders such as PTSD causing general organ and system breakdown and immune suppression, it is at least as likely as not that the [V]eteran's service-connected PTSD was a contributory cause of death, such that it aided in the production of the [V]eteran's death." In reaching this determination, Dr. S. again relied on the Veteran's VA treatment records which reflected that he drank large quantities of alcohol to help numb his symptoms, sleep, and give him peace. He (Dr. S.) also took note of the September 2015 VA examination report, wherein the VA physician related the Veteran's metastatic adenocarcinoma to his alcohol and tobacco use. Dr. S. also took note of a research study provided by W.H., M.D., who was described by the Institute for Natural Resources, as a board-certified clinical neuro-psychologist and health psychologist who is an internationally-recognized authority on brain-behavior relationships. According to Dr. S., on July 28, 2017, Dr. H. gave a presentation related to stress for the Institute of Natural Resources, and in his presentation, he reported there to be a causal connection between chronic stress disorders such as PTSD and the development of cancer, "both by way of general organ and system breakdown and by way of chronic immune suppression creating heightened susceptibility to infection and cancers." According to Dr. S., Dr. H. asserted that those with chronic stress, to include PTSD, had an 80 percent risk of death due to cancer. When asked where PTSD ranked on the list of chronic stressors, Dr. H. replied "90th percentile in life disruption." Dr. S. further wrote that in his comments, Dr. H. added that "chronic stress causes system breakdown and chronic medical disorders" and "[t]he stress response throws [one's] immune system into overdrive...and, in chronic stress, [a person's] immune system goes into immune suppression." Based on Dr. S.'s lengthy professional opinion, the research findings reported by Dr. H. indicate that the risk of the Veteran developing lung, liver, and other forms of cancer involved in his metastatic adenocarcinoma at least as likely as not become markedly elevated due to his service-connected chronic stress disorder of PTSD. The evidence favorable to the claim demonstrates that the Veteran was service-connected for PTSD, and includes VA treatment records dated in 2004 documenting his dependence on alcohol and his claims that alcohol did help alleviate some of his psychiatric symptoms. The record also includes a VA medical opinion stating that the Veteran's fatal metastatic adenocarcinoma of unknown etiology was, in part, secondary to his alcohol abuse, as well as a private medical opinion submitted by a psychologist which concluded that the Veteran had developed alcohol dependency secondary to his service connected PTSD. A review of the records is absent any negative evidence with regard to the relationship between the Veteran's service-connected PTSD and his alcohol disorder, as well as the relationship between his alcohol disorder and the development of his metastatic adenocarcinoma. Although the September 2015 VA physician found that the Veteran's metastatic adenocarcinoma was less likely as not due to or caused by his military service, to include his in-service herbicide exposure, he did not discuss whether his PTSD led to, or caused the development of, his metastatic adenocarcinoma. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Further inquiry could certainly be undertaken with a view towards development of the claim. However, the case has already been remanded for a medical opinion and, as noted above, the reasonable-doubt rule operates in favor of the claimant when the positive and negative evidence is in approximate balance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As there is no negative evidence to the contrary, the Board finds that the Veteran's metastatic adenocarcinoma is due, in part to his alcohol abuse, which has been found to be secondary to his PTSD. Accordingly, the Board finds that the Veteran's PTSD and subsequent alcoholism combined with other factors did contribute to the development of his metastatic adenocarcinoma. As such, service connection for metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes is warranted. Cause of Death The appellant is claiming entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. § 1310. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). This question will be resolved by the use 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). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). In determining whether a 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). As noted above, the appellant essentially contends that the Veteran's longstanding alcohol abuse was associated with his service-connected PTSD, and that his alcoholism and tobacco use led to the development of his metastatic adenocarcinoma and subsequent death. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for the cause of the Veteran's death is warranted. At the time of the Veteran's death, the Veteran was service-connected for PTSD, residual malunion from fracture of the left humeral shaft with left impingement syndrome, tinnitus, residuals of concussion, post-traumatic arthritis of the left elbow, and residuals of fracture right job. As discussed above, the appellant has contended that the Veteran began drinking alcohol as a way to cope with his PTSD symptoms, and his history of alcohol abuse contributed and led to the development of his metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes which was the immediate cause of his death. As discussed above, in the September 2015 VA medical opinion, the VA physician determined that the Veteran's fatal metastatic adenocarcinoma with an unknown primary was more likely caused by his long-standing history of both tobacco exposure due to cigarette use, and his history of alcohol abuse - both of which can lead to cancer. In reaching this determination, the VA physician referenced a medical journal article issued by the National Cancer Institute which reflected that alcohol abuse was an independent risk factor for developing various types of cancer. In the September 2017 medical opinion, Dr. S. agreed with the September 2015 VA physician's determination relating the Veteran's metastatic adenocarcinoma to his alcohol and tobacco use, and further found that the Veteran's alcohol and substance use was a direct result of his service-connected PTSD. In this regard, Dr. S. concluded that the Veteran's PTSD was a contributory cause of his metastatic adenocarcinoma that had affected various areas of his body and ultimately led to his death. In reaching this opinion, Dr. S. not only reviewed the Veteran's claims file and took into account his history of alcohol abuse throughout his post-service years, but he also interviewed the appellant regarding the severity of the Veteran's PTSD symptoms, and he referenced a number of medical literature articles as well as a research study issued by Dr. H. (a Board-certified clinical neuro-psychologist and health psychologist, who is reportedly an authority on brain-behavior relationship) , all of which highlighted the increased risk of alcohol and tobacco abuse among veterans with PTSD. Given the evidence of record, the Board finds that service connection for the cause of the Veteran's death is established. At the time of the Veteran's death, he was service-connected for PTSD and evidence has established that the Veteran's alcoholism was secondary to his PTSD. Furthermore, as stated by the September 2015 VA physician and Dr. S. in his September 2017 opinion, the evidence reflects that the Veteran's alcoholism, which developed due to his PTSD, contributed and led to the development of his metastatic adenocarcinoma with metastases to the bone, liver, adrenal glands, and lymph nodes which was the immediate cause of his death. As there is no negative medical evidence to the contrary (i.e. evidence reflecting that the Veteran's alcohol disorder was not related to his PTSD, and/or evidence reflecting that the Veteran's fatal metastatic adenocarcinoma was not related to his alcohol and tobacco use), the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD was a contributory cause of death. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) (providing that compensation may be paid "for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran's service-connected disability"). Entitlement to service connection for the cause of the Veteran's death is therefore warranted. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Entitlement to DIC benefits under 38 U.S.C. § 1318 In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. See, generally, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). Because, in the current appeal, the Board has granted service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310, the matter of the appellant's alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Cf. Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). [In light of this basis of outcome, no discussion of VA's duties to notify and to assist is necessary.] ORDER Entitlement to service connection for metastatic adenocarcinoma, for accrued benefits purposes under 38 U.S.C § 5121A, is granted. Entitlement to service connection for the cause of the Veteran's death, pursuant to the provisions of 38 U.S.C. § 1310, is granted. The claim for entitlement to DIC, pursuant to the provisions of 38 U.S.C. § 1318, is dismissed as moot. REMAND In the August 2015 decision, the Board denied the appellant's claim for service connection for lung cancer, on the basis that the Veteran did not have, nor had he had at any time during the course of the appeal, a current diagnosis of lung cancer. In reaching this denial, the Board determined that a remand for a VA medical opinion was not necessary because the weight of the evidence demonstrated that the Veteran did not have, and had not ever had, a diagnosis of lung cancer. In the February 2017 Memorandum Decision, the Court determined that the Board provided an inadequate statement of reasons and bases for its failure to obtain a medical opinion addressing the etiology of the Veteran's lung cancer. In this regard, the Court found the Board's reasoning was inconsistent given that the denial of the claim was based on the Veteran not have a diagnosis of lung cancer, yet the record was somewhat unclear as to whether the Veteran's adenocarcinoma had metastasized to the lungs. As such, the Court remanded this claim for the Board to provide an adequate statement of reasons or bases, particularly in regards to the duty to assist, and whether the lung cancer claim is inextricably intertwined with the metastatic adenocarcinoma claim. As reflected in the section above, in the September 2015 VA medical opinion, the VA physician, after reviewing the claims file in detail (to include the diagnostic test findings), determined that while the Veteran had poorly differentiated metastatic adenocarcinoma with an unknown primary, gallbladder origin was highly suspected based upon the presence of a liver lesion near the gallbladder and enlarging lymph nodes in that area. The VA physician noted that while a differential diagnosis for the origin of adenocarcinoma included primary lung cancer and prostate cancer, "there is no evidence for either of these sites as the origin, based on lack of finding a primary lesion on CT scan." Indeed, results of the October 2008 CT of the chest revealed several small pulmonary nodules within areas of fibrosis, which the radiologist suspected were post inflammatory or post infectious. Although these diagnostic test findings did not reveal any signs or evidence of a primary lesion, the radiologist did note that there was "absolutely no way" to exclude the development of pulmonary metastases. While the September 2015 VA physician noted that the multiple small nodules discovered on the CT scan could have been metastatic cancer to the lungs, he noted that no autopsy had been performed. A review of the medical evidence of record is absent any findings of an autopsy report, and the appellant has not indicated that an autopsy of the Veteran was performed after his death. The Board finds both the report of the October 2008 CT of the chest, and the September 2015 VA medical opinion, to be somewhat speculative in nature as to whether the Veteran's adenocarcinoma metastasized and spread to his lungs. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). While it would appear that the October 2008 radiologist who interpreted the CT of the lung region was inclined to attribute the pulmonary nodules discovered in the lungs to be post-inflammatory or post-infection in nature, "inferring" that this is what the radiologist meant from what he did or did not say would be tantamount to the Board rendering its own unsubstantiated medical opinion, and the Board is precluded from doing so. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that Board must rely on independent medical evidence to support its findings and must not refute medical evidence in the record with its own unsubstantiated medical conclusions), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board therefore concludes that an additional VA medical opinion is necessary to address whether the Veteran's metastatic adenocarcinoma had also metastasized to his lungs. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159 (c) (4) (2017) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In light of the fact that the evidence remains unclear as to whether the Veteran's metastatic adenocarcinoma metastasized to his lungs, and if so, whether the Veteran developed lung cancer due to his metastatic adenocarcinoma, a remand is necessary for a clarifying medical opinion addressing these questions. 38 C.F.R. § 3.159 (c)(4)(i). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and ask her whether an autopsy was performed on the Veteran at the time of his death. If so, ask the appellant to provide the full address for the facility where the autopsy was performed as well as the date the autopsy was performed. After acquiring this information, instruct the Veteran to complete a release form authorizing VA to request the Veteran's autopsy records from the above-referenced facility. After obtaining the appropriate release of information forms where necessary, procure and associate with the claims folder copies of the Veteran's autopsy records. All such available documents should be associated with the Veteran's claims folder. Any negative responses should be properly annotated into the record. 2. Then, forward the claims file to a physician with expertise in oncology, particularly lung cancers. The claims file, a copy of this remand, and all records in the electronic claims file, must be provided to and reviewed by the medical reviewer prior to his/her providing an opinion. After this review, the reviewer should address whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's metastatic adenocarcinoma had metastasized to his lungs at the time of his death, and if so, whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran developed lung cancer as a result of his metastatic adenocarcinoma. Specifically, the VA reviewer should take note of the October 2008 CT of the chest and determine the likelihood that pulmonary nodules present were signs/manifestations of pulmonary metastases or post inflammatory or post infectious. A complete rationale for any opinion provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If the reviewer determines that he/she cannot provide an opinion on any of the issue at hand without resorting to speculation, the reviewer should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the reviewer be undertaken so that a definitive opinion can be obtained.) 3. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue on appeal. If the benefit sought is not granted, the appellant and her attorney should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

https://www.va.gov/vetapp17/files9/1759897.txt

I posted this because the hepatitis case might not be relevant at all.

The widow had obtained , from "Dr S", a superb IMO that covered all bases , and totally ruled out willful misconduct.

It is the best ( actually the only) case I have found that supports my advice to you because these are very difficult claims to succeed in. There is a lot you need to do but, I am a widow as well, and I had A LOT to do myself ,to get DIC for my husband's untimely death at age 47.

 

 

 

[Berta]

If you contact the VAMC that was where your husband got treatment, ( the Records access Officer) they might have a form that they use for you to obtain copies of his VA medical records. That is how I got copies of my husband's medical records long ago.

 

However I contacted the VA Office for Survivors and when they response I will let you know- as they might know what the proper form would be. Many forms have changed. Make sure you use the proper forms for your claim.

They are here:

 

https://www.va.gov/survivor-quick-start-guide.pdf

[Berta]

I heard back from the Office of Survivors VA with this:

"Berta,

Thanks for reaching out to and thanks for all you do for survivors.

Certainly, a survivor can reach out to the last VAMC where her veteran was seen and they can provide the full medical history. It can be requested through the records office and is fairly easy to do – she will, of course, have to prove her identity and relationship to the veteran.

Checking with our experts, she can use the 21-4388 or really just a signed letter requesting the information.

Please don’t hesitate to reach out if you have any additional questions.

Kind regards,

 

Ann" ( I think she meant the 21-3288-I told her I used for my C file) I cant find the 21-4388)

In any event going to the VAMC or calling them as I suggested will get you the form they use.