BVA9504753 DOCKET NO. 92-18 672 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and M. M. ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from February 1966 to December 1971. He died in June 1988. This appeal arises from a rating decision of March 1991 from the San Francisco, California, Regional Office (RO). The Board notes that, while the record contains a prior and final denial of service connection for the cause of the veteran's death, the RO, in the course of the current adjudication, determined that new and material evidence had been received to reopen that claim. Accordingly, the Board will, at this time, review the complete evidentiary record. Manio v. Derwinski, 1 Vet.App. 140 (1991). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the RO erred when it denied service connection for the cause of the death of the veteran. She specifically alleges that, while he in fact died as a direct result of a fire, his death was materially influenced and accelerated by his service-connected post-traumatic stress disorder and the symptoms thereof, to include drug abuse, alcohol abuse, and suicidal thoughts. She also alleges that the alcohol abuse caused by his post-traumatic stress disorder in turn resulted in liver cirrhosis. It is also alleged that the veteran had suicidal intent immediately prior to his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellant's claim has been developed. 2. The veteran's death in June 1988 was due to thermal burns sustained as a result of a fire. Amputation of both legs and liver cirrhosis were also identified as a cause of death. 3. Neither thermal burns, amputation of both legs, nor liver cirrhosis was present during the veteran's active service, or manifested until many years after his separation therefrom. 4. Prior to the veteran's death, service connection had been established for post traumatic stress disorder and dermatitis of the hands. These disabilities were rated as 40 percent disabling when considered on a combined basis. 5. The evidence does not demonstrate that the veteran's service- connected disabilities, either singularly or collectively, were related to the cause of his death, contributed to or accelerated his death, or rendered him materially less capable of resisting death. 6. Death due to suicide or mental unsoundness, as a result of a service-connected disability, is not shown. CONCLUSIONS OF LAW 1. Neither thermal burns, amputation of the legs nor cirrhosis of the liver were incurred in or aggravated by active service, nor may cirrhosis of the liver be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 2. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. She has not asserted that any records of probative value that may be obtained and which have not already been associated with the veteran's claims folder are available. The Board accordingly finds that all relevant facts have been properly developed, and that the duty to assist her, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the appellant contends that the death of the veteran was related to his active service, in that it was the product of his service-connected post-traumatic stress disorder, and that service connection for the cause of his death is accordingly warranted. After a review of the record, however, the Board finds that her contentions are not supported by the evidence, and that her claim fails. The basic facts are not in dispute. The veteran died in June 1988, one day after receiving serious burn injuries requiring above-the-knee amputation of both legs. The death certificate identifies thermal burns sustained as a victim of a fire as the immediate cause of death. It was also reported that death was due to or as a consequence of amputation of both legs and liver cirrhosis. Upon review of the fire marshal's report, the cause of death was deemed to be thermal burns due to a fire, and the manner of death was determined to be accidental. Governing statutory and regulatory provisions stipulate, in pertinent part, that service connection can be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (1994); see also 38 U.S.C.A. § 1310 (West 1991). This can be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of his or her death, or that his or her death was the result of a disability for which service connection should have been established. In the instant case, the veteran's death was due to severe burns that resulted in amputation of both legs above the knee; cirrhosis of the liver is also shown to have been a contributing factor, according to the death certificate (but not according to official reports compiled thereafter). Since it is uncontroverted that his thermal burns, and the resultant amputations, were incurred in June 1988, many years after his separation from service, it is clear that his service medical records do not demonstrate that either disability was manifested during his period of service, or were otherwise directly caused thereby; see 38 C.F.R. § 3.303(d) (1994). In addition, a review of the veteran's service medical records does not demonstrate that cirrhosis of the liver was manifested during his period of active service. These records do not show treatment for liver problems of any sort, nor do they show any complaints indicative thereof. The report of the separation medical examination shows that he was clinically evaluated as normal in all relevant aspects, and does not indicate any inservice history of liver problems. The clinical evidence first demonstrates the presence of liver disease in November 1987, in the form of a Department of Veterans Affairs (VA) hospitalization summary indicating diagnoses to include diffuse hepatocellular disease. It must be pointed out, however, that this report is dated more than 16 years after his separation from service. While it shows that he indicated at that time a history of alcohol abuse, it must be emphasized that the medical evidence does not demonstrate that a liver disability was clinically discerned prior to 1987. As noted above, service connection for the cause of death can also be found when it is shown that death was the result of a disability for which service connection has already been established. Pertinent regulations stipulate that, when demonstrating that 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." 38 C.F.R. § 3.312(c)(1) (1994). These regulations also provide that "[i]t is not sufficient to show that [a service-connected disability] 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) (1994). Prior to his death, the veteran in this case had established service connection for post-traumatic stress disorder and dermatitis of the hands. The evidence, and specifically the records compiled in June 1988, in conjunction with the burn injuries he incurred in that month and his death one day after those injuries were received, does not indicate that either a mental disability or a skin disorder of the hands was in any manner related to his death; rather, to reiterate, the evidence clearly shows that his death was caused by those burn injuries. (See 38 C.F.R. § 3.312(c)(4) (1994), the provisions of which stipulate, in pertinent part, that "[t]here are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions....") While it is noted that a statement from a person who treated the veteran for post-traumatic stress disorder "between 1985 - 1986" indicates that this disability "contributed to the deterioration of his condition, the breakdown of his family, and at the end to his death," it must be emphasized that this statement, while perhaps inferring that the veteran's behavior was in some manner related to the fatal June 1988 fire, does not furnish any clinical support for a finding that there was a relationship between his mental disorder and that fire. It must also be emphasized that the other clinical evidence pertaining to treatment of the veteran for his post-traumatic stress disorder, along with the investigatory records compiled in June 1988 cited above, does not establish that there is any such relationship. The Board must find that the regulatory criteria set forth above, with regard to the standards by which a service- connected disability is considered to have contributed to death, are not satisfied. See 38 C.F.R. § 3.312(c)(1) (1994). The Board acknowledges that the appellant contends, in essence, that the veteran's behavior, to include his alcohol abuse, was a symptom of his service-connected post-traumatic stress disorder, and that he was thereby prevented from seeking emergency assistance immediately following the June 1988 fire. It is also alleged that the veteran was suicidal immediately prior to the fatal fire, and that this was also due to his service-connected mental disorder. The appellant has submitted lay statements and testimony in support of these positions. While it is noted that service connection was not established for alcohol abuse, that does not, in and of itself, preclude a grant of service connection for the cause of the veteran's death, if it can be demonstrated that his post-traumatic stress disorder was in fact manifested by alcohol abuse (and that such abuse was related to the fire that caused his death). A review of the record, however, does not indicate any clinical findings that demonstrate that the veteran's alcohol abuse was a product or symptom of his post-traumatic stress disorder. Rather, the record clearly indicates that there was in fact no such relationship. At the request of the Board, the veteran's claims folder was reviewed by a VA staff psychologist in order to ascertain whether such a relationship was shown; her finding was that, "[w]hile a patient may suffer from both [post-traumatic stress disorder] and substance abuse, there is no causal link between these two conditions. Further, I cannot establish any causal link between this veteran's death following a fire to his service in Vietnam." In view of the clinical evidence, and the finding of the VA staff psychologist, it must be concluded that the appellant's assertion as to a relationship between the veteran's post-traumatic stress disorder and his alcohol abuse is nothing more than conjecture. It accordingly follows that the question of whether the veteran's alcohol abuse was related to the fatal June 1988 fire is irrelevant. Similarly, the clinical record does not demonstrate that he was suicidal in the period immediately preceding the fatal fire; it is not shown that the fire was deliberately set or was otherwise a suicidal act, or that suicidal tendencies were a symptom of his service-connected post-traumatic stress disorder. See 38 C.F.R. § 3.302 (1994). In the absence of any such evidence, the appellant's contentions in this regard can be considered to be no more than allegations that are unsupported by the record. In view of the foregoing, therefore, the Board must conclude that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.312 (1994). ORDER Service connection for the cause of the veteran's death is denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.