Citation Nr: 1119256 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 08-23 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to September 1952, and from August 1954 to April 1955. The Veteran died in June 2005. The Appellant is his surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which found that new and material evidence had been submitted to reopen service connection for the cause of the Veteran's death, but denied the claim on the merits. That rating decision also denied entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. In a January 2010 decision, the Board, likewise, denied the Appellant's claim on the basis that new and material evidence had not been received to reopen service connection for the cause of the Veteran's death. Although the RO reopened the claim of service connection for the cause of the Veteran's death by deciding the issue on the merits in the April 2007 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). The Appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a November 2010 Order, following a Joint Motion for Partial Remand. The parties requested that the Court vacate the Board's January 2010 decision regarding the denial of service connection for the cause of the Veteran's death, but the matter related to DIC under 38 U.S.C.A. § 1318 was not pursued. The Court granted the joint motion and remanded the case to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for the cause of the Veteran's death was denied by the RO in a September 2005 rating action on the basis that the cause of the Veteran's death, a left upper lobe mass due to COPD, was not related to his military service. The Appellant was notified of this action and of her appellate rights, but did not file a timely appeal. 2. Since the September 2005 decision denying service connection for the cause of the Veteran's death, the additional evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. At the time of his death, compensation benefits were in effect for cognitive disorder, due to the residuals of a head injury, with subdural hematoma, rated 100 percent disabling; duodenal ulcer, rated 10 percent disabling; a skull defect resulting from the evacuation of a subdural hematoma, rated 10 percent disabling; and the residuals of an appendectomy scar, rated zero percent disabling. 4. The Veteran died in June 2005. The immediate cause of the Veteran's death was listed as a left upper lobe mass; due to, or as a consequence of chronic obstructive pulmonary disease (COPD); due to, or as a consequence of progressive functional decline; due to, or as a consequence of right conjunctivitis; with duodenal ulcer as another significant condition contributing to death, but not directly involved in the Veteran's death. 5. Organic brain syndrome contributed substantially and materially to the Veteran's death. CONCLUSIONS OF LAW 1. The additional evidence received subsequent to the September 2005 decision of the RO that denied service connection for the cause of the Veteran's death is new and material; thus, service connection is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 2. Resolving reasonable doubt in the Appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary 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). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A January 2007 letter explained the evidence necessary to substantiate the claim in accordance with Hupp, the evidence VA was responsible for providing, and the evidence the Appellant was responsible for providing. The letter also provided notice in accordance with Kent, and explained the evidence VA was responsible for providing and the evidence the Appellant was responsible for providing. This letter also informed regarding disability ratings and effective date criteria. The Appellant has had ample opportunity to respond and supplement the record. The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for a VA medical opinion in December 2006, and the Board arranged for an opinion from a physician of the Veteran's Health Administration (VHA) in March 2011. The Appellant has not identified any evidence that remains outstanding. Laws and Regulations for Service Connection for the Cause of the Veteran's Death In order to establish service connection for the cause of the veteran's death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Service- connected diseases or injuries involving active processes affecting vital organs should receive full consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). New and Material Evidence to Reopen the Claim Service connection for the cause of the Veteran's death was previously denied by the RO in a September 2005 rating decision. Service connection was denied in September 2005 on the basis that the cause of the Veteran's death, a left upper lobe mass due to COPD, was not related to his military service. The Appellant did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence of record at the time of the Appellant's claim in September 2005 included the Veteran's STRs, VA treatment records, including records of the Veteran's terminal hospitalization, and the certificate of the Veteran's death. At the time of his death, compensation benefits were in effect for cognitive disorder, due to the residuals of a head injury, with subdural hematoma, rated 100 percent disabling; duodenal ulcer, rated 10 percent disabling; a skull defect resulting from the evacuation of a subdural hematoma, rated 10 percent disabling; and the residuals of an appendectomy scar rated zero percent disabling. The certificate of death showed that the Veteran died in June 2005. The immediate cause of the Veteran's death was listed as a left upper lobe mass; due to, or as a consequence of chronic obstructive pulmonary disease (COPD); due to, or as a consequence of progressive functional decline; due to, or as a consequence of right conjunctivitis. Another significant condition listed on the death certificate as contributing to death, but not directly involved in the Veteran's death, was duodenal ulcer. No autopsy was performed. Evidence received subsequent to the September 2005 decision includes a December 2006 memorandum from a VA physician who was asked to render an opinion regarding whether the residuals of the Veteran's head injury had led to ultimate demise. In response to this question, the VA physician indicated that it was well-documented in the claims file that the Veteran had a progressive organic brain syndrome/dementia that several examiners agreed had put him in declining health related to the head injury; however, the Veteran's death was listed as being due to the left upper lobe mass of undetermined type and COPD with probable pneumonia mentioned in the hospital notes. The VA physician opined that the Veteran's head injury certainly contributed to his decline, but it could not be stated that this decline had contributed to his ultimate demise without resorting to unfounded speculation. Also of record are statements from the Veteran's step-daughter and pastor, who relate that the Veteran's organic brain syndrome had progressed to the point that, prior to his death, he was not alert most of the time, would only respond when spoken to, and had a dazed and distant facial expression. In a February 2011 medical opinion, a private physician opined that the dementia and progressive decline in the Veteran's function was at least a contributory cause, if not the primary cause, of the Veteran's death. The private physician reasoned that such a decline in health made the Veteran more vulnerable to the pneumonia that was the cause of the Veteran's death. The private physician stated that the lung mass listed on the death certificate was simply an X-ray finding, and that conjunctivitis could not have been contributory to death as "nobody dies from conjunctivitis." The private physician opined that, because there was no evidence that the duodenal ulcer was active, as no autopsy was performed, the duodenal ulcer could have contributed to death, but suggested this was not shown by the evidence. The February 2011 private physician opined that the Veteran's brain injury sequelae met the definition of a contributory cause of death in that the Veteran had severe debilitation as a result that rendered him materially less capable of resisting the effects of other disease or injury that primarily caused death. The private physician agreed that the listing of "Progressive Functional Decline" on the death certificate was correct, and opined that this decline was primarily due to the service-connected brain disorder that had rendered the Veteran totally disabled for over a year prior to his death. In March 2011, a request for medical opinion from a physician of the Veterans Health Administration was submitted. The VHA physician responded that, after reviewing the entire evidence of record, the Veteran's death appeared to be primarily due to hypercarbia secondary to known emphysema complicated by pneumonia and a left upper lobe mass, although without the ability to review the Veteran's radiology studies, it could not be told whether the pneumonia was post-obstructive, which would more directly implicate the new mass as a cause of death. The physician opined that, regarding the Veteran's organic brain syndrome, it could not be determined with reasonable medical certainty that it contributed or accelerated the Veteran's death without resort to speculation. The VHA physician further reasoned that organic brain syndrome would indeed accelerate death if the Veteran's mental state was such that he could not adequately communicate or cooperate with his family or medical staff; however, there is no documentation in the medical records to support such speculation. The VHA physician noted that, regarding the Veteran's other service-related disabilities such as duodenal ulcer disease, these were not considered to be symptomatic at the time of the Veteran's death. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The additional medical opinions, particularly that of the private physician, indicate some likelihood that the Veteran's organic brain syndrome substantially or materially contributed to the cause of his death. The additional evidence received since the September 2005 decision denying service connection for the cause of the Veteran's death, relates to an unestablished fact of nexus between the Veteran's death and service or a service-connected disability that is necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. The Board finds the medical opinions of record are sufficient to constitute new and material evidence such that the claim may be reopened. Service Connection for the Cause of the Veteran's Death Having decided that the claim is reopened, the claim for service connection must now be considered on the merits based on all the evidence on file. The next question is whether the Board can conduct a de novo review without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that it may proceed to adjudication of service connection for the cause of the Veteran's death without prejudice to the Appellant because the RO has provided the Appellant notice as to the requirements for service connection; the Appellant's argument throughout the appeal has been on the merits, not on the question of whether new and material evidence has been received; and she has had the opportunity for a full hearing throughout the process, including attorney representation. Moreover, in light of the full grant of benefits sought on appeal, there can be no prejudice to the Appellant based on de novo review. After review of the record, the Board finds that the evidence is in equipoise regarding implication of the Veteran's organic brain syndrome such that, with the resolution of reasonable doubt, service connection for the cause of the Veteran's death is warranted. Review of the evidence demonstrates that the Veteran had significant disability that resulted from organic brain syndrome that was a residual of the head trauma for which compensation benefits were in effect. This is shown by the medical records of treatment prior to his death and the statements made by the Veteran's daughter-in-law and pastor. There have been three opinions elicited in order to ascertain whether the dementia could have contributed to the cause of death. Two were to the effect that it would be speculative to render a specific opinion and one, from a private physician, was to the effect that the dementia was contributory to death. The death certificate lends support to this conclusion, as "progressive functional decline" was listed as a contributory cause of the Veteran's death. The record shows that the Veteran first sustained the head injury that resulted in dementia while hospitalized at a VA facility in 1991. VA treatment records and examinations showed that the Veteran's disability deteriorated until in June 2004, it was noted that he could not identify any American presidents, could not subtract 7 from 100, and could not perform two-part commands. The Veteran was assessed as having severe intellectual damage, disorientation, and ataxia. In August 2004, it was noted that, while there was no impairment of communication, there were impairments of cognitive functioning demonstrated by defects in both remote and recent memory. The report of the terminal hospitalization noted that on admission the Veteran was minimally responsive to painful stimuli and had decreased sensorium. His wife agreed to hospice care and a do not resuscitate (DNR) order. The December 2006 VA physician opinion was to the effect that it would be speculative to opine regarding any contribution by the Veteran's organic brain syndrome to death; however, the physician did opine that the Veteran's head injury residuals certainly contributed to his decline. The VHA physician opined that organic brain syndrome would indeed accelerate death if the Veteran's mental state was such that he could not adequately communicate or cooperate with his family or medical staff. The February 2011 private opinion was that the Veteran's dementia and progressive decline was at least contributory to the cause of death. The record shows that, at the time of his terminal hospitalization, the Veteran was not responsive and was minimally responsive to painful stimuli to the point where a do not resuscitate order was given. The Board finds that this state the result of the Veteran's organic brain syndrome, not any chronic or acute respiratory disease. For these reasons, the Board finds that there is some evidence in the medical opinions that support the fact that the organic brain syndrome at least contributed to, or accelerated the Veteran's death. Resolving reasonable doubt in the Appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, service connection for the cause of the Veteran's death is reopened. Service connection for the cause of the Veteran's death is granted. ___________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs