Khadijah El-Amin v. Eric K. Shinseki

26 Vet. App. 136, 2013 WL 151154, 2013 U.S. Vet. App. LEXIS 73
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 15, 2013
Docket10-3031
StatusPublished
Cited by38 cases

This text of 26 Vet. App. 136 (Khadijah El-Amin v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Khadijah El-Amin v. Eric K. Shinseki, 26 Vet. App. 136, 2013 WL 151154, 2013 U.S. Vet. App. LEXIS 73 (Cal. 2013).

Opinions

HAGEL, Judge:

On May 17, 2012, the Court issued a memorandum decision affirming an August 16, 2010, Board of Veterans’ Appeals (Board) decision that denied Khadijah El-Amin entitlement to VA benefits for the cause of her husband’s death. On June 6, 2012, Mrs. El-Amin, through counsel, filed a motion for reconsideration or, in the alternative, a decision by a three judge panel. On August 29, 2012, the matter was submitted to a panel of the Court and oral argument was held on November 15, 2012. The Court will withdraw the May 17, 2012, memorandum decision and issue this opinion in its stead.

The precise question for the panel is whether a VA examiner’s statement that deceased veteran Khalil El-Amin’s alcoholism was “related to” factors other than his service-connected post-traumatic stress disorder is sufficient to permit the Board to conclude that Mr. El-Amin’s service-connected post-traumatic stress disorder did not aggravate his alcoholism. We conclude that it is not. Further, we find that the Board erred in relying on an inadequate medical opinion to conclude that Mr. El-Amin’s non-service-connected alcoholism was not aggravated by his service-connected post-traumatic stress disorder. Accordingly, the Court will vacate the August 2010 Board decision and remand the matter for further development and read-judication consistent with this decision.

I. FACTS

Mr. El-Amin served on active duty in the U.S. Marine Corps from September 1966 to May 1969, including service in Viet Nam. The record reflects that, during his lifetime, Mr. El-Amin was diagnosed with and treated for drug and alcohol abuse and hepatitis C, none of which was ever determined to be connected to his military service.

Mr. El-Amin died in October 2006, and his death certificate lists the cause of death as hepatic cirrhosis. At the time of his death, Mr. El-Amin was in receipt of VA disability benefits for post-traumatic stress disorder, with a 70% disability rating. Mrs. El-Amin seeks benefits for the cause of her husband’s death, asserting that Mr. El-Amin’s service-connected post-traumatic stress disorder either caused or aggravated his alcoholism, which in turn led to the cirrhosis that caused his death.

In the August 2010 decision on appeal, the Board denied Mrs. El-Amin’s claim on the basis that there is no evidence that Mr. El-Amin’s death was a result of any service-connected condition. The decision was based almost exclusively on an Octo[138]*138ber 2008 VA medical opinion, which was based on a records review, in which the examiner stated:

[I]t is this examiner’s conclusion that there is no confirmatory or supportive evidence that the veteran’s post-traumatic stress disorder caused his alcohol abuse, and thus it is NOT at least as likely as not that the veteran’s [post-traumatic stress disorder] caused his alcohol abuse. Conversely, it is more likely than not that the veteran’s alcohol abuse was related to factors other than the veteran’s post-traumatic stress disorder.

Record (R.) at 93. When considering the record evidence, the Board adopted this opinion as the rationale for its decision:

The Board finds the October 2008 opinion of the VA examiner to be the most probative evidence of record regarding whether [Mr. El-Amin’s] cause of death was related to service. The Board notes that there is no medical evidence of record that contradicts the opinion of the examiner.
Also, the Board acknowledges [Mrs. El-Amin’s] contention that [her husband’s] service-connected [post-traumatic stress disorder] caused him to drink, which in turn caused or aggravated his cirrhosis. Certainly, [she] is competent to report how much and how often [her husband] was drinking during the marriage. She is not competent, however, to opine as to the cause of [his] addiction to alcohol or his cirrhosis, and, even if the Board found [her] competent in that regard, the Board nevertheless finds the opinion of the October 2008 examiner to be the most probative evidence regarding the relationship between [Mr. El-Amin’s] [post-traumatic stress disorder] and cirrhosis.

R. at 11,12. This appeal followed.

II. ANALYSIS

A. Cause of Death and Aggravation

A veteran’s death will be considered service connected when a service-connected disability “was either the principal or a contributory cause of death.” 38 C.F.R. § 3.312(a) (2012); see 38 U.S.C. § 1310. For a service-connected disability to be considered a contributory cause of death, it must be shown that it contributed substantially or materially to the production of death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c).

In a decision early in its history, the Court determined that “any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated.” Allen v. Brown, 7 Vet.App. 439, 448 (1995). More specifically, “when aggravation of a veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.” Id. It follows logically from this holding that the “compensation” for such aggravation by the service-connected condition includes the death benefits that Mrs. El-Amin seeks here, if it can be shown that the non-service-connected disability was aggravated to the degree that it contributed substantially or materially to the production of death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Such a find[139]*139ing would result in an unbroken chain between the service-connected disability and the condition that caused the veteran’s death. Here, for example, the chain would proceed: Mr. El-Amin’s service-connected post-traumatic stress disorder aggravated his non-service-eonneeted alcoholism, which caused or contributed to his cirrhosis, which caused his death.

To be sure, the question of whether any aggravation of Mr. El-Amin’s non-service-connected alcoholism contributed to his development of cirrhosis is a factual one that has not yet been addressed by the Board. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) (“Fact-finding in veterans cases is to be done by the expert [Board], not by the Veterans Court.”). The Board did not reach this question below because the inquiry ended when the Board determined that there was no connection between Mr. El-Amin’s service-connected post-traumatic stress disorder and his non-service-connected alcoholism. At oral argument, however, the Secretary conceded that there is prima facie evidence that Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

200515-83608
Board of Veterans' Appeals, 2021
200514-86032
Board of Veterans' Appeals, 2021
20-19 530
Board of Veterans' Appeals, 2021
200420-79025
Board of Veterans' Appeals, 2021
200303-72526
Board of Veterans' Appeals, 2021
210125-130836
Board of Veterans' Appeals, 2021
200426-81405
Board of Veterans' Appeals, 2021
200612-91182
Board of Veterans' Appeals, 2021
Ronald v. Garner v. Dat P. Tran
Veterans Claims, 2021
200102-52477
Board of Veterans' Appeals, 2020
191224-50894
Board of Veterans' Appeals, 2020
190904-29417
Board of Veterans' Appeals, 2020
190329-6893
Board of Veterans' Appeals, 2020
190902-32939
Board of Veterans' Appeals, 2020
190605-11299
Board of Veterans' Appeals, 2020
200306-68318
Board of Veterans' Appeals, 2020
190717-15997
Board of Veterans' Appeals, 2020
190820-27585
Board of Veterans' Appeals, 2020
190617-10128
Board of Veterans' Appeals, 2020

Cite This Page — Counsel Stack

Bluebook (online)
26 Vet. App. 136, 2013 WL 151154, 2013 U.S. Vet. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khadijah-el-amin-v-eric-k-shinseki-cavc-2013.