Citation Nr: 0638115 Decision Date: 12/07/06 Archive Date: 12/19/06 DOCKET NO. 96-29 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C.A. Chapter 35 (West 2002). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran had active service from March 1968 to October 1969. He died in January 1995. The appellant is the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The case returns to the Board following a December 2005 remand to the RO for additional development. FINDINGS OF FACT 1. The veteran died in January 1995; the death certificate lists the cause of death as cardiopulmonary arrest due to a single gunshot wound to the left chest. 2. At the time of his death the veteran had no service- connected disabilities. 3. There is no competent evidence of a nexus between the cause of the veteran's death and his period of service or his service-connected disability. Service and post-service medical evidence only provides negative evidence against this claim. CONCLUSIONS OF LAW 1. Service connection for the cause of the veteran's death is not established. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.303, 3.312 (2006) and 38 C.F.R. § 3.304(f) (1995). 2. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C.A. Chapter 35 is not established. 38 U.S.C.A. §§ 3501, 3510 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for the Cause of the Veteran's Death Dependency and indemnity compensation (DIC) benefits may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5(a) (2006); see 38 U.S.C.A. Chapter 11. Generally, a veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Service connection may be granted for the cause of death by suicide where it is established that at the time of death there was mental unsoundness that was due to or the proximate result of a service connected disease or injury. Where the evidence shows no reasonable adequate motive for suicide, it will be considered to have resulted from mental unsoundness and the act itself considered to be evidence of mental unsoundness. 38 C.F.R. § 3.302. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances that could lead a rational person to self-destruction. Id.; see also Sheets v. Derwinski, 2 Vet. App. 512 (1992). In the absence of a determination of an unsound mind, a veteran's death by suicide would be considered the result of his own willful misconduct, and service connection for the cause of death would be precluded. See 38 C.F.R. §§ 3.301(a), 3.302(a) (2005). Review of the record, however, does not disclose any reasonable adequate motive for suicide. Therefore, the veteran's suicide must be presumed to be due to mental unsoundness. 38 C.F.R. § 3.302(b)(2). There is, however, no evidence showing that any mental unsoundness the veteran may have experienced was related to military service. With respect to service connection for post-traumatic stress disorder, the regulation in effect at the time of claim in 1995 provided that service connection for post-traumatic stress disorder requires medical evidence establishing clear diagnosis of the condition, a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of conclusive evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) as in effect in 1995. See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit, 5 Vet. App. at 9; Espiritu, 2 Vet. App. at 494. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). VA's General Counsel has held that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a veteran engaged in combat with the enemy must be resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOPGCPREC 12-99 (Oct. 18, 1999). "Credible supporting evidence" of a non-combat stressor may be obtained from service records or other sources, to include lay testimony. Gaines, 11 Vet. App. at 353; Moreau v. Brown, 9 Vet. App. 389 (1996). For instance, independent evidence such as radio logs and morning reports which establish the occurrence of a stressful event and implies a claimant's personal exposure is sufficient to constitute credible supporting evidence. Suozzi v. Brown, 10 Vet. App. 307 (1997). However, the regulatory requirement for credible supporting evidence means that a claimant's testimony, or the medical opinion based upon post-service examination, alone cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Moreau, 9 Vet. App. at 396. Examples of "other supportive evidence" includes, but is not limited to, incidents of a plane crash, ship sinking, explosion, rape or assault, or duty in a burn ward or graves registration unit. See Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. The appellant contends that the veteran committed suicide in January 1995 because of post-traumatic stress disorder (PTSD) arising out of his active duty service in the Republic of Vietnam. Specifically, the appellant alleges that the veteran was psychologically traumatized by being forced to kill innocents in Vietnam. Initially, it is note that the death certificate does not implicate PTSD as a factor in leading to the veteran's death. The veteran was diagnosed with PTSD by a VA physician in March 1993, although it is unclear which tests the physician used in reaching this conclusion or the nature of the stressors that supported the diagnosis. Moreover, it appears that the diagnosis was made in the context of a general medical examination rather than a specific psychiatric examination. For the purposes of this appeal, the Board presumes, without deciding, that the diagnosis is a clear diagnosis of PTSD as required by applicable regulation. See 38 C.F.R. §§ 3.304(f) (1995); However, the Board must assess the credibility of all the evidence. "Just because a physician or other health professional accepted appellant's description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Initially, the Board notes that, although the veteran was diagnosed with PTSD, not one of the diagnosing physicians opined that his condition was related to his service in Vietnam. Furthermore, the record reflects a history of violent behavior and alcoholism prior to service in Vietnam. Nearly every lay statement submitted by the appellant alleges that the veteran was transformed into a violent alcoholic by his experiences in Vietnam. However, his DA Form 2981 indicates that he was arrested on four occasions prior to service at age 17, three of which were for violent and/or alcohol-related offenses: two arrests for fighting in a restaurant and one arrest for public intoxication. This evidence suggests that the veteran's tendency for violence and substance abuse predated his active service. The appellant has provided no medical evidence of a link between the veteran's PTSD and the claimed in-service stressor. Furthermore, there is no credible evidence suggesting that the veteran was actually exposed to any in-service stressors supporting his PTSD diagnosis. In this instance, the veteran's discharge forms do not show that he received an award that would establish his involvement in combat. The Board notes that the veteran received a National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. Although these medals indicate service in Vietnam, they do not establish actual combat involvement. The veteran's DD Form 214 indicated that he served as a Power Operator and Mechanic. The veteran's service medical records also contain no evidence of participation in combat. Although the appellant contends that the veteran's unit records must be obtained to check for the alleged stressor events, the Board finds that these records would not be sufficient to verify the appellant's purported stressor, i.e. that the veteran engaged in killing during combat, under Pentecost v. Principi, 16 Vet. App. 124 (2002), which involved a claimant whose purported stressor was that his unit came under enemy fire. As discussed in further detail below, the VA's duty to assist the appellant in the development of her claim is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted). Therefore, based on the evidence currently in the record, the Board must find that the veteran did not engage in combat with the enemy. The Board must now look to whether there is any credible supporting evidence of a stressor in other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). However, the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163 (1996). The only evidence of the veteran's purported stressors comes in the form of lay statements made by the appellant as well as other family members and associates. No where in the record is there any evidence from the veteran as to the nature of any stressors. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Thus, the Board finds that the appellant has not provided any credible supporting evidence to verify that the veteran was exposed to the claimed stressors. The Board must therefore find that PTSD is not shown to have its origins in the veteran's military service and the appellant's claim must be denied. The Board finds that the preponderance of the evidence is against the appellant's claim. It follows that there is not such a balance of the positive evidence with the negative evidence to otherwise permit a favorable determination on this issue. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to Dependents' Educational Assistance Chapter 35 of 38 U.S.C.A. provides for educational assistance for all eligible persons. 38 U.S.C.A. § 3510. Generally, an eligible person is a child or surviving spouse of a person who died of a service-connected disability; or a child or spouse (or surviving spouse) of a person has (or died from) permanent, total disability resulting from a service- connected disability. 38 U.S.C.A. § 3501(a). In this case, at the time of his death, the veteran had no permanent, total service-connected disability. As discussed above, the evidence does not show that the veteran died from a service-connected disability. Accordingly, the appellant is not an eligible person as defined by statute for purposes of establishing entitlement to Dependents' Educational Assistance. Accordingly, the claim must be denied for lack of legal merit. See Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement). The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the duty to notify. 38 U.S.C.A. § 5103(a). That is, by letter dated March 2003 as well as information provided in the August 2003 supplemental statement of the case, the RO advised the appellant of the evidence needed to substantiate her claim and explained what evidence it was obligated to obtain or to assist the appellant in obtaining and what information or evidence the appellant was responsible for providing. In addition, the August 2003 supplemental statement of the case includes the text of the regulation that implements the notice and assistance provisions from the statute. Although the appellant did not receive specific notice informing her to submit all relevant evidence in her possession in accordance with Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the appellant was generally informed of the evidence needed to substantiate her claim and her responsibility to provide such evidence. Accordingly, the Board finds that the RO has provided all required notice. 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate her claim for service connection, but she was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Despite the inadequate notice provided to the appellant on these latter two elements, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes above that the preponderance of the evidence is against the appellant's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board further finds that any deficiency in the notice to the appellant or the timing of these notices is harmless error. See Overton v. Nicholson, No. 02-1814 (September 22, 2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as the Board has done in this case). With respect to the duty to assist, the RO has obtained all available service medical records and VA treatment records. See 38 U.S.C.A. § 5103A(d). In addition, the appellant provided the veteran's death certificate, additional records, and lay evidence in the form of her own written statements as well as various written statements from friends and family members. The duty to assist is not unlimited in scope. See Smith v. Derwinski, 2 Vet. App. 429, 431, 432 (1992). In Gobber, 2 Vet. App. at 472 (citations omitted), the Court stated, in pertinent part: [T]he "duty to assist" is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, the duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim. In this case, the RO has made all reasonable efforts to assist the appellant in the development of her claim. While additional attempts to obtain information can always be undertaken, the appellant has made no specific showing of additional evidence. The Board notes that a unit record search has not been conducted. However, the Board finds that the evidence, discussed above, warrants the conclusion that another remand is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2005). As service and post-service medical records provide no basis to grant this claim, and provide evidence against the claim, the Board finds no basis for a unite record search to be conducted. Therefore, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER Service connection for the cause of the veteran's death is denied. Entitlement to Dependents' Educational Assistance pursuant to 38 U.S.C.A. Chapter 35 is denied. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs