Citation Nr: 0732416 Decision Date: 10/15/07 Archive Date: 10/26/07 DOCKET NO. 03-01 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Michael R. Viterna, Esq. WITNESSES AT HEARING ON APPEAL Appellant and her sister ATTORNEY FOR THE BOARD S. Yim, Counsel INTRODUCTION The veteran served on active duty from July 1952 to March 1973. He was a combat veteran. He died in January 2000. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2004, the Board denied the claim. On further appeal, in November 2006, the United States Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the appeal for readjudication consistent with its order. FINDINGS OF FACT 1. The appellant was notified of the evidence necessary to substantiate her claim, and all relevant evidence necessary for an equitable disposition of this appeal was obtained. 2. The veteran died in January 2000, of laceration of the brain with expulsion of the brain due to crush injury of skull with skull fractures, incurred in an automobile accident. 3. The veteran's post-mortem ethyl alcohol level was 0.14 grams %. 4. During the veteran's life, service connection was in effect for post-traumatic stress disorder (PTSD), rated as 70 percent disabling effective January 4, 1999; ligament laxity, left knee, rated as 20 percent disabling effective January 4, 1999; post-traumatic degenerative arthritis, right knee, rated as 10 percent disabling effective January 4, 1999; post-traumatic degenerative arthritis, left knee, rated as 10 percent disabling effective January 4, 1999; and prostate cancer, rated as noncompensable effective January 4, 1998. 5. Post-mortem, service connection was granted for macular degeneration of the left eye, rated as 10 percent disabling effective January 4, 1999; a total disability rating based on individual unemployability due to service-connected disabilities also was granted effective from January 4, 1999. 6. The cause of the veteran's death was not related to any service-connected disability, and the fatal injury was the result of willful misconduct. CONCLUSION OF LAW A disorder causing or contributing to the veteran's death, including laceration of brain with expulsion of brain due to crush injury of skull with skull fractures, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.301, 3.302, 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection - Cause of Death The veteran served in combat during the Korean Conflict and received, among other service awards, the Purple Heart Medal. During his lifetime, service connection was in effect for a number of disabilities, including post-traumatic stress disorder (PTSD) deemed associated with combat action. In May 1999, a 70 percent disability rating was assigned for PTSD effective January 4, 1999, and that rating was in effect through the date of death. The medical evidence of record, including autopsy results, and police accident investigation results show that the veteran died in January 2000, in a single-automobile accident, as a result of laceration of the brain with expulsion of the brain due to crush and fracture injury to the skull. According to the post-mortem toxicology report, his blood ethyl alcohol level was 0.14 grams %. In the death certificate, the coroner ruled the manner of death as accidental. Service connection is granted for the cause of a veteran's death with evidence that a service-connected disability caused death or contributed materially or substantially to produce death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2006); 38 C.F.R. § 3.312 (2007). A service-connected disability is considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death, however, is inherently one not related to a principal cause. In determining whether the 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; rather, it must be shown that there was a causal link. 38 C.F.R. § 3.312(c). The appellant's primary contention is that her late husband's alcohol abuse was a form of self-medication to manage the psychological and emotional effects of PTSD and that his post-mortem blood alcohol level should not be deemed evidence of willful misconduct that precludes service connection for the cause of his death. The appellant also appears to be asserting that PTSD symptoms might have been severe enough immediately before the fatal accident such that they somehow impaired the veteran's ability to control or safely operate his vehicle. She further maintains dizzy spells caused by medication or radiation therapy for service-connected prostate cancer might have played a material role in the accident. She also appears to be contending, alternatively, that the veteran's death was not purely accidental, but rather, that her husband, so "depressed" due to PTSD or so "haunted" by PTSD, excessively drank and drove an automobile on the date of death, disregarding safety, and possibly intended to end his life that day. During the veteran's lifetime, service connection was in effect for PTSD, rated as 70 percent disabling; ligament laxity, left knee, rated as 20 percent disabling; post- traumatic degenerative arthritis, right knee, rated as 10 percent disabling; and post-traumatic degenerative arthritis, left knee, rated as 10 percent disabling. The effective date of each of these ratings was January 4, 1999. Service connection also was in effect for prostate cancer, rated as noncompensable effective January 4, 1998. A post-mortem rating decision (February 2000) granted service connection for macular degeneration, left eye, rated as 10 percent disabling effective January 4, 1999. It also granted a total rating based on individual unemployability due to service- connected disabilities effective January 4, 1999. The California Highway Patrol accident report notes that the veteran was the sole occupant of the vehicle and was found pinned in the driver's seat wearing a three-point continuous loop lap/shoulder restraint. At the time of the accident, the weather was cloudy; the road was dark with no street lights; the roadway surface was dry; and there were no unusual road conditions. A witness reported that he noticed the veteran's sedan was within the lane over the next three or four miles as it traveled approximately 300 feet ahead. However, the sedan veered approximately three or four feet into the freeway center divider. It veered to the right proceeding across the road and "ran off" the right side of the roadway. The witness saw a large cloud of dust and a fallen tree. Based on physical evidence at the scene, the vehicle damage, and information obtained from an eyewitness, the responding police officer concluded that the veteran had traveled at a stated speed of 75 miles per hour and for unknown reasons, his vehicle veered to the left side of the road into the freeway center divider. As a result, he over- corrected the steering to the right, which caused him to lose control of the vehicle. The vehicle then proceeded across the road and to the right side of the roadway, continued across the shoulder, and then crashed through the freeway perimeter fence. The left side of the vehicle struck a large tree in the field near the fence, causing the tree to fall. The vehicle came to rest on its left side in the field near the fence. The responding officer concluded that the primary cause of the accident was "[u]nsafe turning movement" and that the associated factor was "[f]ailure to maintain a vehicle within its designated lane." There is no indication that the action or inaction of another driver in another vehicle played a role in the veteran's ability to control or maneuver his vehicle. The Madera County Sheriff's Department case report dated in March 2000 shows that the responding officer noted that for an unknown reason, the veteran's vehicle left the roadway into the median, crossed over the road, and hit a tree and a fence. His vehicle flipped over onto its top after sustaining severe damage to the driver's side door. The responding officer noted that the appellant reported that the veteran was previously treated for cancer, but the veteran was currently only taking aspirin, Cozaar, and Naproxen. The officer further noted that the appellant indicated that the veteran left for Oakland on the morning of the accident to attend a Masonic Lodge meeting and that he was returning home when the accident occurred. A blood alcohol percentage of .10 or more raises a presumption that the person was under the influence of intoxicating liquor under VA's Adjudication Procedure Manual. See M21-1, (M21-1), Part IV, Chapter 11, 11.04(c)(2) (applying standards of the National Safety Council, U.S. Department of Transportation and the Departments of the Army, Navy and Air Force and Defense Supply Agency). In Forshey v. West, 12 Vet. App. 71, 73 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), the Court noted, based on treatise evidence, that a blood alcohol level in the range of 0.080% to 0.100% results in intoxication that, in turn, results in loss of judgment and muscular coordination. Even Dr. Pankiewicz, whose July 2007 report was proffered after the Court's order was issued, conceded that that percentage "clearly" represents a blood alcohol level "above the legal limit." The Board finds that post-mortem blood alcohol level of 0.14 obtained by objective laboratory testing is reliable and probative as to the veteran's state of intoxication at the time of the fatal accident. There is neither clinical evidence, nor contention, that the veteran's death is directly associated with any service- connected disability other than PTSD, the only psychiatric disorder for which service connection was in effect. As for the apparent contention that the veteran might have suffered from residual effects of medication or treatment for prostate cancer, it is merely that - the record does not substantiate it. Medical records do not document complaints deemed residual complications of treatment for service-connected disability and which a clinician opined or suggested might have played any role in the fatal accident. More specifically, a VA clinical record dated about a month after the veteran's death indicates that the appellant contacted the VA medical facility around that date to inquire whether her husband had complained of, e.g., dizziness, blurry vision, headaches, or even flashbacks while driving, but that the VA counselor who spoke to the appellant told the appellant that the veteran had not reported such problems. That record also documents a notation to the effect that the appellant expressed a desire to find a causal link between the fatal accident and PTSD. Kaiser Permanente records dated from July 1983 to August 1999, as well as Fresno Community Hospital records dated from February 1996 to November 1996, show that, in 1996, the veteran underwent radiation therapy for prostate carcinoma. Several residual problems due to radiation therapy were noted, none of which included complaints of dizzy spells. Kaiser Permanente records include an October 1996 record that noted that the veteran took Zoladex and Flutamide for treatment of his prostrate cancer. The medical literature indicated that a side effect of Flutamide was dizziness. A June 1998 record notes that there was no evidence of the disease. A February 1999 record notes an assessment of vertigo in connection with an examination of the ears that revealed retracted tympanic membranes. The physician noted possible Eustachian tube dysfunction. An August 1999 record notes that an examination revealed no clinical evidence of recurrent prostate cancer. Records from Kaiser Permanente dated in 1996 state that the veteran's medication regime for treatment of prostate cancer included Flutamide. The medical literature contained in the private treatment records note that a side effect of Flutamide is dizziness. The medical evidence does not show that the veteran continued to take Flutamide around the time of his death. Rather, the private treatment records show that as late as in August 1999, an examination revealed no clinical evidence of recurrent prostate cancer. It is also significant that, although private treatment records and the February 1999 VA genitourinary examination report note several residual problems of prostate cancer - both temporary and permanent - none included dizzy spells. The February 1999 assessment of vertigo was deemed related to a disease process of the ears. Licensed clinical social worker, H.L., advised the appellant that the veteran never complained of episodes of dizzy spells while driving, according to a February 2000 record from the Concorde Vet Center. The weight of the evidence is against the assertion that the veteran died to due dizzy spells he experienced as the result of medication taken for service-connected disabilities. Accordingly, the discussion below is focused primarily upon the role, if any, of PTSD on the veteran's functioning and, ultimately, the cause of his death. That said, the relevant inquiries are: (1) whether the veteran's alcohol use was a form of self-medication to cope with or control the psychological and emotional effects of PTSD such that his intoxication at the time of death should not be deemed willful misconduct that precludes service connection for the cause of his death; (2) notwithstanding the veteran's inebriated state at the time of the fatal accident, whether the veteran might have been so afflicted by PTSD symptoms that his ability to maintain control over, or otherwise safely operate, his vehicle was compromised or impaired to result in the accident; and (3) whether he was so impaired due to severity of PTSD, particularly, depressive symptoms, such that he could not help but engage in suicidal behavior or that he did in fact commit suicide. On the last issue, 38 C.F.R. § 3.302 provides that an intentional act of self-destruction is deemed willful misconduct that precludes service connection (see 38 C.F.R. § 3.301(a) and (b)), but that a person of "unsound mind" cannot be deemed to have been capable of forming an intent to commit an act of self- destruction. The act of suicide or bona fide attempted suicide is considered evidence of mental unsoundness. 38 C.F.R. § 3.302 (b)(2). Issues numbered 2 and 3 are first addressed. Whether or not the veteran suffered from PTSD-specific symptoms immediately before the fatal accident such that they played a role in causing the accident is an unknown, and ultimately, unknowable, variable in this case, as the veteran alone would have experienced them, if any. And he was the sole occupant of his vehicle, and therefore, there is no other individual with personal knowledge, based on what the veteran might have said or through observation of the veteran, of information material on this issue. What the Board must do is to consider what is available - in other words, historical evidence of the extent of PTSD - to determine whether that proposition is more plausible than not. It concludes that it is not. As a general matter, the percentage rating assigned for PTSD (70 percent) itself is some indication that the extent of functional impairment due to PTSD is more than minor or inconsequential. Although a review of treatment records dated within the last few years before death do document complaints of difficulty sleeping, and in particular, feelings of anger, irritability, anxiety, survivor guilt, and sadness, but not reports of PTSD-specific symptoms of the type that, if experienced, are most likely to adversely affect the physical ability to control a vehicle - visual or auditory hallucinations. See, e.g., February 1999 VA examination report documenting the veteran's report that he had had experienced flashbacks about Korea, but not hallucinations or delusions. And, again, as noted earlier, a VA counselor reportedly told the appellant post-mortem that the veteran had not complained of problems, like visual disturbance, that impaired his driving. Those considerations, viewed in the context of police investigation results concerning the circumstances of the accident strongly indicating that intoxication played a major role in the loss of control of or unsafe operation of the vehicle (traveling some 75 miles/hour intoxicated, at night), tend to outweigh post-mortem lay reports by family members, who presumably are interested parties in this appeal, that the veteran had mentioned episodes of flashbacks while driving. See, in particular, October 2000 statement of the veteran's niece, who stated that her uncle reportedly had experienced flashbacks while driving, "trying to get away from the enemy." As for whether the veteran might have been so afflicted by PTSD (particularly severe depression) that he committed suicide on the accident date, several family members have stated to the effect that he previously had expressed, at various times, a loss of desire to live and had vaguely spoken about ending his life, but, as with the issue of whether he might have had flashbacks that caused him to lose control of his vehicle, it is, ultimately, an unknown. What is highly probative is that his body was found secured with a seatbelt. That, in the Board's view, is most contemporaneous evidence available as to the veteran's state of mind immediately before the accident. The veteran presumably had consumed alcohol before he began driving toward home (the record does not indicate otherwise), alone, and, even in his inebriated state, behaved in a manner expected of a person with sufficiently intact mental faculty to be concerned with the safety of his physical person by securing his seatbelt. Such evidence is, in the Board's view, even more probative than the appellant's report that, on the day of the fatal accident, before the veteran left home, the appellant had asked him if she had the right to be happy, to which he replied, "'yes, you will be happy soon'", even if the Board were to construe that report, however vague, as evidence of suicidal intent. Also, it has been reported that the veteran was returning home when the accident occurred, which would tend to indicate that, despite what he reportedly said before leaving home that day, he likely had not intended to carry out the apparent suicide threat. Moreover, it is relevant that clinical records dated within the last few years before the accident consistently document denials of suicidal plan or attempt. See, in particular, December 1999 VA record memorializing the veteran's vague, generalized expression of anger toward "the system," and his statement that he is "not that crazy" such that he would hurt himself or others. This is evidence in the form of the veteran's own words less than two months prior to his death that, when viewed with the foregoing, tends not to support a conclusion that he was "unable to resist" a suicidal "impulse" (38 C.F.R. § 3.302(b)(1)) because of PTSD symptoms. See also October 1998 VA medical record and February 1999 VA psychiatric examination report reflecting a denial of suicidal ideation. Evidence of deliberate intent to kill oneself and suicide, carried out, could preclude service connection for the cause of death, as such action could be characterized as "willful misconduct." 38 C.F.R. § 3.302. But the record in this case does not support a conclusion that that is what occurred. No clinician has opined that, based on the nature and extent of PTSD symptoms, it is likely that the veteran had, through drinking alone or in combination with drinking and reckless driving, intended to kill himself on the date of the accident. Police investigative records, summarized earlier, too, indicate that the event that took the veteran's life was accidental automobile injury involving driving while intoxicated. Even Dr. Pankiewicz, whose report seems to be the most favorable evidence in this claim, does not actually reach that conclusion. Rather, the doctor's opinion, ultimately, is that the veteran had self-medicated with alcohol to cope with PTSD and "co-morbidity" (combination of PTSD and self- medication with substances typical of individuals with PTSD) caused the fatal accident. Further on the same point, the Board is aware that family members have reported past incidents when the veteran reportedly had "blacked out." Based on the hearing testimony and written layperson statements, it is evident that some "black out" episodes might have involved alcohol consumption. That evidence, along with multiple lay reports to the effect that the veteran said he had flashbacks while driving, is considered in light of other evidence that the veteran was thoroughly familiar with the stretch of road on which the accident occurred having driven there many times (see Board hearing transcript; testimony of appellant's sister) and history of multiple prior arrests for driving under the influence of alcohol (see February 1999 examination report of Dr. Wajda). Such evidence would tend to indicate a pattern of careless or reckless behavior, and not that the veteran had actually intended to carry out a plan to kill himself on the road on the date of the accident. As discussed above, accident investigation results indicate accidental death due to injuries sustained as a result of impaired judgment and coordination associated with inebriation that significantly affected the ability to control the vehicle. What the family members report as to what the veteran might have said to them various times before death, be it about the extent of PTSD manifestations, or ruminations about suicide, do not, in the Board's view constitute sufficient evidence to overcome what is undisputed - that he died of severe head injury resulting from unsafe driving involving intoxication. Such lay evidence, when viewed in the context of the whole record, does not prove that, despite highly probative, undisputed evidence of intoxication, the veteran had, or likely had, PTSD-induced hallucinations or flashbacks that caused him to lose control of his vehicle, or that he purposely, with a desire to "end it all," swerved his vehicle intending to cause the accident. To do so, based on lay evidence from family members who, after the loss of a loved one, understandably want to identify a cause of death, would be speculation inconsistent with post-mortem investigative findings. And, although it is reasonable to argue that a person inebriated such that he has a blood alcohol level of 0.14 grams % and who drives 75 miles/hour on a multi-lane freeway at night is not exercising sound judgment about his own safety or that of others, it is speculative to conclude wholesale that such action was prompted purely by severe manifestations beyond his control - PTSD flashbacks or hallucinations. As for whether the veteran's alcohol use was a form of self- medication to cope with the psychological and emotional effects of PTSD, and thus, his intoxication should not be deemed evidence of "willful misconduct" precluding a grant of this claim, 38 C.F.R. § 3.301(c)(2) states, in pertinent part: The simple drinking of alcoholic beverage is not of itself willful misconduct . . . If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. [Italics supplied.] The Court concluded that the Board, in August 2004, failed to address the italicized portion of the regulation and incorrectly restated its understanding of the regulation as follows: "[I]f intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct." The Court also found that the Board had failed to explicitly address whether the veteran had ingested alcohol to "enjoy its intoxicating effects" or that his admitted long-term alcohol abuse was the result of, or associated with, PTSD (in other words, whether the "self- medication" theory is valid in this case). It is arguable that, at the most basic level, any alcohol consumption would be with the intent to experience its immediate euphoric or pleasurable effects. However, the narrow distinction as it applies to this case is between the deliberate, intentional act to become intoxicated to merely enjoy those effects (whether an individual is drinking in moderate amounts and/or occasionally such that he is engaging in "social drinking," or is drinking frequently and in such quantities such that it is indicative of, or results in, physical addiction, despite awareness of the danger of such action) and the act primarily prompted or driven by a need to control, or "escape," PTSD symptoms. The former would be willful misconduct and would preclude service connection. Dr. Pankiewicz, in essence, opined that the latter is the case. The veteran himself reported that his drinking began in Korea, and that he used alcohol to control his emotions and to induce sleep. He had a history of four marriages and self-reported social isolation and estrangement. Dr. Wajda, in February 1999, noted the veteran's report that his drinking as "temporally related" to combat experience, and in that sense, it is indicative of "self-medication." These considerations tend to favor the "self-medication" theory advanced by the appellant. The Board, however, ultimately concludes that the record does not sufficiently support that theory, and that the veteran died due to injuries sustained in an accident involving willful misconduct (intoxication) as a major factor in causing the accident. The veteran himself reported, as long ago as in August 1996 (Fresno Community Hospital records), that he stopped drinking some four months before then. The Board has considered the possibility that there might be some element of denial on the part of an addicted individual in terms of accurately reporting the frequency or quantity of alcohol consumption. However, in February 1999, Dr. Wajda, who, in his professional opinion, deemed the veteran a reliable historian of his medical history, noted that the veteran reported "severe" drinking until 1995, and that he drank "moderate[ly]" (which the veteran reported as "up to three fifths of hard liquor per week") thereafter to help him sleep. That history as to when drinking declined is generally consistent with what the veteran said to other clinicians (Fresno, August 1996). Also, Dr. Wajda noted that substance-abusers are likely to divert money that should be earmarked for basic needs toward furthering their substance abuse, and thus, he typically would declare such individuals incompetent, but that, in the veteran's case an incompetence declaration is not warranted. And, a February 1999 examination report indicates that the veteran reportedly drank six or seven times a month, although he could drink a large quantity during each drinking episode. That also tends to be consistent with prior reports as to reduction in drinking. Dr. Pankiewicz, too, noted that there is evidence of "significant decline" in drinking for some five years before death. Also, to the extent that clinical records dated within the last several years before the veteran's death address his psychiatric state, they do discuss reports of emotional problems, agitation, irritability, survivor guilt, difficulty sleeping, etc., but not truly severe psychotic-type manifestations or PTSD-specific symptoms (see criteria for 100 percent rating, 38 C.F.R. § 4.130, Diagnostic Code 9411) or more obvious evidence of frequent drinking that might be detected by clinicians the veteran visited, which, if demonstrated, would help support a contention that PTSD was so significant that the veteran had to consistently drink considerable amounts of alcohol to escape unrelenting flashbacks, severe depression, psychosis, or destructive impulses. It is not unreasonable for the Board to expect more evidence than as presented where the very underpinning of the "self-medication" theory is that alcohol is a necessary, self-administered drug to "treat" or "escape" PTSD, and not that alcohol is being consumed merely for its pleasurable effects. Furthermore, Dr. Pankiewicz states that the veteran's blood alcohol level, although clearly above the legal limit, does not represent a substantially elevated alcohol level typical of individuals seeking intoxication. He states that it is well within the limits of an individual using alcohol as a form of self-treatment to suppress PTSD symptoms. However, certain facts are undisputed: that the veteran was legally intoxicated (yet had the mental faculty to consider safety and restrain himself with a seatbelt), lost control of his vehicle driving 75 miles/hour, and died as a result of injuries deemed by law enforcement personnel to have been the result of an accident. Also, Dr. Pankiewicz's conclusion is largely conclusory. He does not explain the rationale or basis for why he concluded that, in the veteran's case, he believes the self-medication theory is valid, other than to state that that is likely based on "typical" cases where individuals use alcohol to control PTSD and that there is a correlation (co-morbidity) between PTSD-sufferers and substance abuse. However, in the Board's view, this case is arguably not "typical" in the sense that, as explained, the evidence does not sufficiently support severe PTSD symptoms and indicates a declining pattern of alcohol usage in the years before death, and as well, indicates a pattern of reckless behavior (drinking and driving at a high speed on a familiar road), which, arguably, to a large measure, is indicative of individual choice. Although it is plausible that drinking an alcoholic beverage may be due in some part to "escape" negative emotions induced by psychiatric impairment, there also is an element of deliberation to repeatedly drink excessively to result in intoxication levels the medical and law enforcement community have deemed unsafe (noting, again, history of multiple driving-while-intoxicated arrests) - even if not, as Dr. Pankiewicz states, to a level "typical" of individuals who merely seek to become intoxicated - and then to drive a vehicle on a multi-lane road, at night, at a high speed, endangering himself and others. Also, based on Dr. Pankiewicz's statement as to co-morbidity, it would seem plausible that a combat veteran suffering from chronic, unrelenting PTSD symptoms, as asserted was the case here, might be inclined to drink more or more frequently to achieve the desired end (that is, to "escape" PTSD symptoms). On this point, there seems to be some inconsistency between the "co-morbidity" theory and the doctor's statement to the effect that individuals who drink merely to "get drunk" tend to have higher intoxication levels than those with PTSD who "self-medicate," in the face of evidence, which Dr. Pankiewicz seems to have conceded, that the veteran's drinking actually declined in the years before his death. Moreover, in the Board's view, Dr. Pankiewicz seems to have been dismissive of accident investigative findings that are highly probative in this case. He cited a witness report to the effect that the veteran appeared to have been driving only slightly faster than the witness himself had and had maintained control within the lane "over the next three to four miles." However, it defies reason and common sense to conclude that that is sufficient evidence that the veteran did not exhibit "persistent or substantial signs of impairment in his capacity to drive" (quoting Dr. Pankiewicz) where, again, police investigative reports are plainly contradictory as to loss of control of the vehicle and ultimate crashing of the vehicle to result in fatal injury. It is noted that, even though the witness might have perceived that the veteran had driven only "slightly faster" that the witness himself had, the police determined that the veteran had driven, at night, approximately 75 miles per hour after drinking to the point he had a .14 grams % blood alcohol level, which, in the Board's view, is indicative of reckless behavior under the circumstances. And, elsewhere in this decision, the Board has explained why it finds the evidence does not support a conclusion that his PTSD symptoms likely were truly severe or exacerbated before his death. Also, alternatively, even assuming the validity of the assertion that alcohol, for the veteran in this case, was, to some extent, a drug to control or manage severe PTSD manifestations, in the Board's view, a pattern of drinking excessively, and then repeatedly choosing to drive a vehicle, is evidence of wanton or willful disregard for safety. The veteran, as noted, restrained himself with a seatbelt. That is indicative of his capacity to appreciate the danger of his impending action (driving his car after drinking to legal intoxication) and the possible consequences of not taking such precaution. For instance, if, here, the "drug" of choice had not been alcohol but some other controlled substance (e.g., prescription medication) used, for instance, to reduce PTSD symptoms and that individuals were not to drive or operate machinery while taking such medication, then the Board's conclusion essentially would be the same. It would be reasonable to expect an individual, even if "disabled" to some extent due to psychiatric symptoms, to recognize that such a drug should not be taken when driving or operating machinery. It is also common knowledge that prescription drugs are dispensed with written, and perhaps also verbal, notice of possible side effects and contraindications and warnings as to manner of usage. It would be reasonable for the Board to conclude that an individual who disregards those cautionary instructions, ingests pills inconsistent with instructions on usage, and then operates machinery, is acting with deliberation and a disregard for the possible consequences. That is analogous to the circumstances of this case. The act of choosing to operate a vehicle in a condition where judgment and muscular coordination are likely to be impaired due to alcohol consumption, notwithstanding the 70 percent rating in effect for PTSD, is evidence of knowing, and willful, misconduct. Based on all of the foregoing, the Board accords less weight to the opinion from Dr. Pankiewicz that it is "quite clear" that the "self-medication" theory is valid. The Board concludes that the preponderance of the evidence is against the claim and supports a finding that the accident that led to the veteran's death was the result of driving while intoxicated and, therefore, the result of willful misconduct. In conclusion, the record does not show that the veteran's cause of death was related to PTSD, or any other service- connected disability, or that the veteran's driving while intoxicated was the result of his PTSD. As the preponderance of the evidence is against the claim, 38 U.S.C.A. 5107(b) and 38 C.F.R. § 3.102 are not applicable. II. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete benefits application, VA must notify the claimant and any representative of any information, and medical or lay evidence, needed to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record needed to substantiate the claim, that VA will seek to provide, and that he should provide. It must ask him to provide any pertinent evidence he has ("fourth element"). 38 C.F.R. § 3.159(b)(1). Notice should be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA's duty to notify has been met during the appeal period such that it find no material prejudice based on any substantive notice defect, including timing of the notice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question not addressed by the AOJ, the Board must consider whether prejudice occurred); see also 38 C.F.R. § 20.1102 (2007) (harmless error). The appellant was provided the June 2000 rating decision and September 2002 Statement of the Case (SOC). Although those items may not be deemed components of requisite notice, they did discuss what evidence is needed and why the RO concluded that the evidence, to date, does not substantiate the claim. In correspondence dated in December 2000, the RO asked the appellant to provide the RO with any evidence showing that the veteran's death was due to suicide as alleged. It asked her to identify any VA medical facility that treated the veteran for PTSD. It added that, if the veteran received private treatment, then the appellant should complete the provided VA Form 21-4142, and the RO would request the records. The RO further advised the appellant that the RO requested the police report on the accident that resulted in the veteran's death. In correspondence dated in August 2001, the RO generally noted the delegation of responsibility between VA and the appellant in procuring evidence relevant to the claim. The RO specifically advised that records from Kaiser Permanente were requested and that the appellant's assistance was needed in obtaining these records as well as the autopsy report. The letter was returned to the RO in September 2001, with the stamped notification, "NO SUCH NUMBER." Although it is a claimant's duty to advise the RO of any change in address, once the RO re-established contact with the appellant, it appears that the RO made no attempt to re-deliver the August 2001 notice to her new address. The Board, however, finds that the appellant is not prejudiced by this omission. The claims file shows that records from Kaiser Permanente and the autopsy report were obtained. Also, as previously discussed, in the December 2000 letter, the RO advised the appellant of the delegation of responsibility between VA and the appellant in procuring the evidence relevant to the claim, including which portion of the information and evidence was to be provided by the appellant and which portion VA would attempt to obtain on her behalf. Quartuccio, 16 Vet. App. at 187. Also, even though the requisite notice was provided during the appeal, the claim was reconsidered in September 2002 and the SOC on the issue was provided to the appellant. Additionally, the Board notes that the December 2000 letter was sent before the transfer and certification of the case to the Board. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. There was no specific request to the appellant to provide any evidence in her possession that pertained to the claim, or something to the effect that the appellant give VA everything she has that pertains to her claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, VA asked the appellant to provide all information and evidence necessary to substantiate the claim. A generalized request for any other evidence pertaining to the claim would have been superfluous and unlikely to lead to the submission of additional pertinent evidence. Therefore, it can be concluded, based on the particular facts and circumstances of the case, the omission of the request for "any evidence in the claimant's possession that pertains to the claim" in the notice appears not to have harmed the appellant, and it would be legally proper to decide this case without further notice under the regulation. With respect to failure to provide notice consistent with Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), it, too, did not result in material prejudice. The late veteran's "veteran" status is not at issue, nor is the appellant's status as a surviving spouse. Service connection was established for several disabilities during the veteran's lifetime. The sole issue here is whether the evidence supports a conclusion that the cause of the veteran's death was related to active service or any service-connected disability. The appellant was provided notice as discussed above. Notice concerning general considerations governing assignment of percentage ratings for service-connected disabilities, or effective date criteria governing service connection or assignment of ratings for service-connected disabilities, is not material to that issue and such notice, even if provided, would not have altered the ultimate outcome in this case. VA's duty to assist a claimant in substantiating the claim (see 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d)) also was satisfied. This duty contemplates that VA will help a claimant obtain relevant records, whether or not they are in federal custody, and that VA will provide a medical examination and/or opinion if needed to decide the claim. The RO obtained Kaiser Permanente records, police accident reports, the autopsy report, and Concord Vet Center records. The appellant has not made the RO or the Board aware of any other evidence relevant to her appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the appellant in developing the facts pertinent to her claim. Therefore, the Board finds no impediment to a decision on the merits of this case. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs