Citation Nr: 0504733 Decision Date: 02/18/05 Archive Date: 02/24/05 DOCKET NO. 02-01 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for the veteran's cause of death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant; her son ATTORNEY FOR THE BOARD B. Wilson, Associate Counsel INTRODUCTION The veteran served on active duty from March 1961 to September 1967. The veteran died in February 2001. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied entitlement to the benefit currently sought on appeal. In September 2003, the Board remanded the claim for further development. It was returned to the Board in December 2004. FINDINGS OF FACT 1. The veteran's death certificate indicates he died in February 2001, and lists the immediate cause of death as presumed natural causes. 2. At the time of the veteran's death, service connection had not been established for any disability, and no claim for service connection was pending. 3. There is no competent medical evidence of record establishing a nexus or link between the veteran's death by presumed natural causes and his service. 4. There is no credible supporting evidence that the veteran was wounded during low-level flight over Vietnam. 5. There is no competent medical evidence of record that demonstrates that a disability for which service connection could be granted caused, hastened, or materially or substantially contributed to the veteran's death. CONCLUSION OF LAW The cause of the veteran's death was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans' Claims Assistance Act The United States Court of Appeals for Veterans' Claims (Court) has held that notice under the Veterans' Claims Assistance Act (VCAA), as required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The VCAA was enacted in November 2000. In the present case, the issue on appeal arises from a claim for service connection for cause of death. In this context, the Board notes that a substantially complete application was received in February 2001. In June 2004, after its adjudication of this claim, but prior to the final certification of the appeal to the Board, the AOJ provided notice to the claimant regarding the VA's duties to notify and to assist. Specifically, the AOJ notified the claimant of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the claimant was expected to provide. The appellant was further instructed to submit any evidence in her possession that pertained to the claim. Thus, the Board finds that the content and timing of the June 2004 notice comport with the requirements of § 5103(a) and § 3.159(b). The Board also notes that by letter in December 2004, the appellant notified the Board in writing that she had provided VA with all the information and evidence she had concerning the claim. Service Connection for Cause of Death The appellant, the veteran's widow, is seeking service connection for the cause of the veteran's death. She contends that service connection for post-traumatic stress disorder (PTSD) should have been established for the veteran during his lifetime, that PTSD subsequently caused the veteran's alcoholism, and that alcoholism contributed to his death. A claimant of dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1310 must establish that a disability of service origin caused, hastened, or substantially and materially contributed to death. See 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service- connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. See 38 C.F.R. § 3.312. Accordingly, service connection for the cause of a veteran's death may 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 death or for which service connection should have been established. A service-connected disability is one that was incurred in or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regarding PTSD, VA regulations reflect that symptoms attributable to the disorder are often not manifested in service. Accordingly, service connection for PTSD requires a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), credible supporting evidence that the claimed in-service stressor(s) actually occurred, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2004); Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). In making its determination, the Board must determine the credibility and probative value of the evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board may not base a decision on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The veteran's death certificate indicates he died in February 2001, and lists the immediate cause of death as presumed natural causes. No autopsy was performed. In an April 2003 video conference hearing before the undersigned Veterans Law Judge, the appellant and the veteran's son testified to events the veteran experienced during his Vietnam era service which they believe caused him to suffer from PTSD. Essentially, they testified that during the Vietnam war, the veteran was a navigator on a B-47, stationed at Eielson Air Force Base in Alaska, and often flew missions to the Philippines and the North Pole. The appellant stated that while she and the veteran were dating, he would communicate with her regularly in between missions. On one occasion, the appellant knew the veteran to be in the Philippines. After having not communicated for a longer than normal time, the veteran contacted her and indicated that he and other crew members "went over to see the war" at which time their B-47 was fired upon. The veteran stated he had sustained injuries to his buttocks and had to recover before returning. The veteran's son testified that the veteran had also told him of the incident. The veteran had relayed that he had been part of a reconnaissance aircraft team which had been alerted to a downed fighter jet that had just crashed in Vietnam. The pilot had survived the crash landing, and the commander of the veteran's aircraft decided to fly the B-47 low, directly over the crash site, in an attempt to scare away the enemy and give the pilot a better chance of escaping. The veteran's aircraft sustained gunfire, damaging the ejection seat in which the veteran sat, and as the veteran reported, causing some injury to the veteran himself. The veteran told his son that because he could not eject, the aircraft was flown back to base, rather than abandoned. The veteran had further told his son that the incident was never officially recorded because they were acting against direct orders. The appellant added that in the last years of his life, the veteran had vivid nightmares about this event, often waking up yelling. She also believed it to be one of the triggering causes of his alcoholism. As an initial matter, the veteran's DD Form 214, Report of Transfer or Discharge, confirms that his military occupational specialty was that of navigator. Available personnel records verify that he was stationed at Eielson Air Force Base in Alaska as part of a weather reconnaissance squadron from March 1965 to January 1967. Service medical records dated from October 1960 to June 1967 are negative for PTSD or other mental disturbances. They are also negative for alcoholism. Service medical records do confirm that in September 1965, the veteran was admitted for 21 days to the Clark Air Force Base Hospital in the Philippines, where he underwent surgery for the drainage of an infected perirectal abscess. The veteran was noted to have reported the onset of perianal pain four days prior to admission, which he said was aggravated by sustained sitting while flying. Separation examination in June 1967 evaluated the anus and rectum as normal. The surgical drainage of the abscess was noted in the medical history, which also indicated there had been a full recovery with no recurrence. Post service medical records, dated from July 1994 to August 2000, chronicle the veteran's treatment in both private and VA facilities primarily for alcohol dependence. Records from the following sources were secured: Jacksonville, Florida Vet Center; Savannah, Georgia VA outpatient clinic; Huntington, West Virginia Vet Center and VA Outpatient Clinic; Clarksburg, West Virginia VA Outpatient Clinic; two private facilities in Savannah, Georgia; and a private hospital in St. Augustine, Florida. Those records relevant to the issue on appeal are discussed below. In January 1997, the veteran was evaluated at the Savannah VA Outpatient Clinic. He relayed the story of attempting to eject from a hit plane over Vietnam. A "subjective diagnosis of PTSD" was noted and the veteran was scheduled for follow-up. In April 1997, the veteran contacted the clinic and indicated he would call back when he was ready to revisit issues surrounding his service and his experiences in Vietnam. The veteran "presented with symptoms of PTSD" in December 1998 at the Huntington Vet Center. Notes by the Readjustment Therapist indicated that the veteran described sleeplessness, anxiety, intrusive thoughts, nightmares, and depression. A diagnosis of PTSD, chronic, delayed onset was noted. The veteran attended a group therapy session at the Center in January 1999. In December 1999, the veteran's file was closed, as the veteran had not been seen in over 60 days. Records from the VA Outpatient Clinic in Huntington indicate that the veteran was treated for alcohol dependence. In the course of this treatment, a mental health clinic consult was requested in June 1999 to "consider PTSD." Later that same month, a diagnosis of PTSD was listed in the veteran's record; however, no examination was conducted or treatment documented. The diagnosis was again listed in September 1999, without evidence of exam or treatment. The veteran reported to a private hospital in St. Augustine, Florida in September 1999, indicating a history of treatment for PTSD by the VA in Jacksonville for 3 years. Records from the Jacksonville Vet Center confirm only rehabilitative treatment for alcohol dependence. To reiterate, the appellant contends that the veteran had PTSD during his lifetime, that PTSD led to the veteran's alcoholism, and that alcoholism contributed to his death. The Board has carefully considered the assembled evidence documenting treatment the veteran received for various disorders from July 1994 until his death in February 2001. Although PTSD is mentioned in the veteran's treatment history, the diagnosis was never established for compensation purposes as required by VA regulations. 38 C.F.R. § 3.304(f). Again, establishing a diagnosis of PTSD requires credible supporting evidence that the claimed in-service stressor actually occurred, as well as a medical nexus between the current symptomatology and the specific claimed stressor. Based on the information provided by the appellant and the veteran's son, the RO attempted to confirm the veteran's alleged stressor by requesting the veteran's personnel file as well as morning reports from July 1965 to October 1965, the time period which encompasses the injury the veteran claimed to be the root of his PTSD symptoms. The evidence gathered does not establish that the veteran was injured by enemy fire while flying over Vietnam. Service medical records confirm only that he had a perianal abscess which he attributed to prolonged sitting in aircraft. The abscess was surgically drained and did not reoccur. Separation examination indicated his anus and rectum were normal. Furthermore, the veteran's personnel file does not establish that the veteran flew in combat conditions over Vietnam. He did receive the VSM (Vietnam Service Medal); but this only indicates flight over Vietnam or over Thailand, Laos, or Cambodia in direct support of operations in Vietnam. Rather, he was a WB-47E navigator in a weather reconnaissance squadron based in Alaska. Therefore, there is no evidence which confirms that he sustained any injuries, only an abscess, which was not sustained in any combat situation. The alleged stressor has not been credibly supported. Any diagnosis of PTSD appearing in the veteran's rehabilitation records, therefore, was not based on sufficient proof of a stressor. Further, notwithstanding the lack of a supported stressor, the evidence of record does not establish that the veteran's alcoholism was due to PTSD. The Board reiterates that it cannot render a decision based upon its own unsubstantiated medical conclusions. See Colvin v. Derwinski, supra. VA regulations require the Board to seek a medical opinion where the record contains competent evidence of a current diagnosed disability; establishes that the veteran suffered an event in service; and indicates that the claimed disability may be associated with the established event in service. 38 U.S.C. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2004). In this case, the record does not contain credible supporting evidence that the alleged event (being wounded by enemy fire in Vietnam) actually occurred. Nor is such evidence likely to exist, as the veteran told his family that records of the alleged incident were not made. In fact, the evidence indicates only that the veteran suffered from a perianal abscess due to prolonged sitting. Thus, the factual requirements for seeking a medical opinion in this case have not been met. The Board has also considered the appellant's and her son's assertions that the veteran suffered from PTSD due to his service. The Board finds that such assertions can be afforded no probative weight in the absence of evidence that the appellant or her son has the expertise to render opinions about medical matters. Although lay persons are competent to testify as to the veteran's in-service experiences and symptoms as witnessed by them, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence does not reflect that the appellant or her son possesses medical knowledge which would render their opinions as to etiology and a medical diagnosis competent. While the Board does not doubt the sincerity of the appellant's belief that the veteran's death was related to his service, a preponderance of the evidence is against her claim for benefits. The cause of death indicated on the death certificate was listed as presumed natural causes. No autopsy was performed to clarify the specific cause. There is no credible evidence which demonstrates that the veteran died of a disability which was of service origin. Therefore, the benefit of the doubt provision does not apply. Accordingly, entitlement to service connection for the veteran's cause of death is not established. ORDER Entitlement to service connection for the veteran's cause of death is denied. ____________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs