Citation Nr: 0007811 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 96-34 228 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to non-service-connected death pension. ATTORNEY FOR THE BOARD Kimberly E. Harrison Osborne, Counsel INTRODUCTION The veteran had active military service from March 1968 to October 1969. He is deceased and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision by the RO which denied service connection for the cause of the veteran's death (claimed for the purpose of obtaining Dependency and Indemnity Compensation (DIC)) and from an April 1995 decision which denied non-service-connected death pension. FINDINGS OF FACT 1. The appellant has not submitted competent evidence to show a plausible claim for service connection for the cause of the veteran's death. 2. The appellant's annualized countable income exceeds the maximum annual income for improved death pension benefits for a surviving spouse with one child. CONCLUSIONS OF LAW 1. The claim for service connection for the cause of the veteran's death is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). 2. The appellant's excessive income is a bar to improved death pension benefits. 38 U.S.C.A. §§ 1503, 1541, 5312 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.23, 3.24, 3.271, 3.272, 3.273 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran had active military service in the Marine Corps from March 1968 to October 1969, including service in Vietnam. In September 1989, the veteran was awarded service connection for post-traumatic stress disorder (PTSD) and he was assigned a 30 percent rating effective from May 1987. The 30 percent remained in effect until his death. PTSD was the veteran's only service-connected disability. Medical reports from 1985 to 1994 show the veteran was treated for psychiatric problems and for substance abuse (a variety of illegal drugs). A January 1992 outpatient treatment report notes the veteran related he began using drugs while he was to Vietnam. The veteran died in October 1994. The death certificate shows that the cause of the veteran's death was acute mixed drug intoxication (morphine, cocaine, fluoxetine and carbamazepine). In November 1994, the veteran's widow filed a claim for DIC (i.e, service connection for the cause of the veteran's death) and for death pension. She stated she and the veteran had one child, and she submitted a birth certificate showing that the child was born in January 1982. She reported she had $2,500 a month in salary and had $1 a month in interest. She reported no income for the child. No deductions from income were reported. In May 1995, the veteran's widow stated the veteran developed a drug problem as a result of being in Vietnam. She argued, in essence, that the veteran's death was related to disability which he incurred as a result of service. She claimed her daughter was entitled to benefits. In a March 1996 substantive appeal, the veteran's widow noted that he had received disability benefits as a result of PTSD. She stated his drug addiction, although not specifically proven, was a result of his experiences in the Vietnam War. She stated that her daughter, the veteran's child, was therefore entitled to benefits regardless of her income. II. Analysis A. Service connection for the cause of the veteran's death Service connection may be granted for disability resulting from disease or injury that was incurred in or aggravated in the line of duty during active service, but no compensation shall be paid if the disability is a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to or the result of an established service- connected disability. 38 C.F.R. § 3.310. To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) 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 must contribute substantially or materially; 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.A. § 1310; 38 C.F.R. § 3.312. The threshold question in this case is whether the appellant has met her initial burden of submitting evidence to show that her claim, for service connection for the cause of the veteran's death, is well grounded, meaning plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski 1 Vet. App. 78 (1990). If she has not done so, there is no VA duty to assist her in developing the claim, and the claim must be denied. Id. For a claim of service connection for the cause of the veteran's death to be well grounded, there must be competent medical evidence that an established service-connected disorder caused or contributed to death, or medical evidence that the conditions involved in death are linked to service or to an established service-connected condition. Ruiz v. Gober, 10 Vet App 352 (1997); Johnson v. Brown, 8 Vet. App. 423 (1995). The record demonstrates the veteran was service-connected for only one disability, PTSD, and such was rated 30 percent disabling. It is not shown that PTSD played a role in death. A death certificate reveals the veteran died in 1994 due to acute mixed drug intoxication (morphine, cocaine, fluoxetine and carbamazepine). The veteran's widow claims the veteran's drug abuse problem, which caused his death, was the result of his experiences in Vietnam or the result of his service-connected PTSD. Direct service connection may not be granted for alcoholism or drug abuse for the purpose of any VA benefit including DIC. However, the VA may award DIC to a veteran's survivors based on the veteran's death from a substance-abuse disability which is secondarily service connected under 38 C.F.R. § 3.310. See 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.301; VAOPGCPREC 7-99 and 2-97; Barela v. West, 11 Vet. App. 280 (1998). Hence, in the instant case service connection for the cause of the veteran's death can be granted if his fatal drug abuse can be linked to service-connected PTSD. There is no competent medical evidence of record linking the veteran's PTSD to his drug abuse. The veteran's widow's assertion that the veteran's service-connect PTSD caused drug abuse which led to his death is insufficient to well ground the claim of service connection. As a layman, she has no competence to give a medical opinion on diagnosis and causation. Grottveit v. Brown, 5 Vet.App. 91 (1993). In sum, there is no competent medical evidence that the service-connected PTSD caused or contributed to death, or that the actual cause of death (drug abuse) is linked to the service-connected PTSD. Thus, the claim for service connection for the cause of the veteran's death is implausible and must be denied as not well grounded. 38 U.S.C.A. § 5107(a); Ruiz, supra; Johnson, supra. B. Death Pension Non-service-connected improved death pension is a benefit payable by the VA to a surviving spouse and children of the veteran for non-service-connected death. Among other requirements, the benefit may be paid only if annual income is not in excess of the maximum annual pension rate which is established each year. 38 U.S.C.A. §§ 1503, 1541, 5312; 38 C.F.R. §§ 3.23, 3.271, 3.272, 3.273. In determining countable income, payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Id. The Board notes that the veteran's widow has argued throughout the appeal that her income should not be counted because she is claiming death pension on behalf of her daughter. Children in the custody of a surviving spouse who has basic eligibility to receive improved pension do not have separate entitlement. 38 C.F.R. § 3.24. Consequently, income of both the surviving widow and the child must be considered when determining income eligibility for death pension. The appellant filed her claim for death pension in November 1994. Effective December 1993, the maximum annual rate of improved death pension for a surviving spouse with one child was $6,863. Effective December 1994, the maximum annual rate was $7,056. There have been gradual annual increases since then, and effective December 1998 the maximum annual rate for a surviving spouse with one child is $7,706. 38 U.S.C.A. §§ 1541, 5312; 38 C.F.R. § 3.23. On her November 1994 application for death pension, the veteran's widow indicated she had a monthly income of $2,501, being the sum of $2,500 in earnings and $1 in interest. This translates into a total annual income of $30,012. No income for the child was reported, and no deductions were reported. Given the total annual countable income of $30,012, it is clear that the appellant has exceeded the income limitation for death pension (for a surviving spouse with one child). Thus, the claim must be denied due to excessive income. ORDER Service connection for the cause of the veteran's death is denied. Non-service-connected death pension is denied. L. W. TOBIN Member, Board of Veterans' Appeals