Citation Nr: 1217387 Decision Date: 05/16/12 Archive Date: 05/24/12 DOCKET NO. 07-34 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from June 1951 to June 1954, including service in the Korean War. He died in December 2005. The appellant is the Veteran's spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appellant initially requested a hearing before the Board. She withdrew her request in September 2010. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's service-connected posttraumatic stress disorder (PTSD) substantially or materially contributed to his death. 2. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSION OF LAW 1. The criteria for establishing entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2011); 38 C.F.R. § 3.22 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DIC may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393. Therefore, 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. In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran's death was not service-connected, provided that the veteran was in receipt of or "entitled to receive" compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least five years from the date of his discharge or release from active duty, or for 10 or more years immediately preceding his or her death. The appellant filed her claim for DIC benefits in 2005. This was after VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, in January 2000, to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a claim or claims. 65 Fed. Reg. 3,388 (Jan. 21, 2000). The regulation, as amended, specifically prohibits "hypothetical entitlement" as an additional basis for establishing eligibility, which was a Court-created concept subject to extensive litigation. See Green v. Brown, 10 Vet. App. 111 (1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v. West, 11 Vet. App. 307 (1998). The Board notes that the phrase "entitled to receive" also contemplates a situation in which additional service department records, existing at the time of a prior VA decision but not previously considered by VA, provide a basis for reopening a claim finally decided during the veteran's lifetime and awarding a total service-connected disability rating retroactively. See 38 C.F.R. § 3.22(b)(2); National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 476 F.3d 872 (Fed. Cir. 2007) (NOVA III). The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). 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. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102 . With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In this case, the Veteran was rated 70 percent disabled from October 1999 for service-connected residuals of frostbite injuries to his feet and PTSD. He died in December 2005. He was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). Therefore, benefits under 38 U.S.C.A. § 1318 are not warranted. Regarding service connection for the Veteran's cause of death, the Certificate of Death shows that the primary cause of death was respiratory failure. The underlying causes of respiratory failure are listed as chronic obstructive pulmonary disease (COPD) and PTSD. Notably, the Veteran was service-connected for PTSD at the time of his death. A June 2002 letter from his treating physician states that the Veteran had PSTD and COPD. Various other treatment records over the years also show diagnosis of COPD and PTSD. A June 2006 letter from the Veteran's treating physician, Dr. A.L., M.D., indicates that he treated the Veteran for idiopathic pulmonary fibrosis and COPD. He did not pronounce the Veteran's death or sign the death certificate and said that presumably, the Veteran's PTSD caused him to become stressed which increased his use of cigarettes, accelerating his pulmonary condition. He said the Veteran stopped smoking in 1972 but by that time, the damage to his lungs had already occurred and continued to progress throughout his life. In a January 2007 letter, Dr. A.L. said that the Veteran had COPD and smoked intermittently throughout his entire life. He opined that the stress that led to his continued smoking was related to PTSD and that the persistent smoking led to the COPD that eventually led to respiratory failure. An August 2006 VA examination found no connection between PTSD and COPD; however, the issue of the Veteran's smoking and its connection with PTSD and COPD was not addressed. In March 2007, the appellant submitted a psychological autopsy report that addressed the relationship between the Veteran's smoking, PTSD and COPD. Dr. R.R., Ph.D., reviewed some of the Veteran's medical records and interviewed the appellant. She summarized the available treatment records and found that the Veteran suffered from alcohol and nicotine dependence, which began in service and were used to cope with PTSD. Therefore, she opined that nicotine dependence is service related as excessive stresses from PTSD led to increased use which eventually led to COPD. She noted that the Veteran died from respiratory failure due to COPD; therefore, she concluded that COPD and death are related to service. She said COPD is caused by smoking and his nicotine dependence was the result of PTSD. In January 2011, the Board requested an opinion from an expert as to the relationship between the Veteran's cause of death and PTSD. The February 2011 opinion and addendum questions whether the Veteran had a valid diagnosis of COPD. The expert said medical literature indicates an association between PTSD and nicotine dependence. However, due to the uncertainty as to whether the Veteran actually had COPD, he opined that it is unlikely that the PTSD contributed significantly to his death. After the issuance of his opinion, the appellant submitted treatment records verifying the Veteran's diagnosis of COPD. In an addendum, the expert acknowledged the medical records but continued to doubt whether the Veteran actually suffered COPD and rendered a similar, negative nexus opinion. Because the expert chose to disregard the multiple records from the Veteran's primary care physicians showing diagnosis and treatment of COPD over the years, the Board requested a new opinion from a different expert and asked the new expert to presume that the Veteran had a valid diagnosis of COPD at the time of his death. Based upon this assumption, in February 2012 the new expert stated that it is highly likely that PTSD contributed to the Veteran's death. He noted that the Veteran was definitively diagnosed with PTSD and that PTSD patients have a higher likelihood of being heavy smokers. Thus, presuming that the Veteran had a valid diagnosis of COPD, the most likely cause or risk for developing COPD would have been heavy smoking, and PTSD contributed to the Veteran's nicotine addiction. Consequently, he found that respiratory failure, the cause of the Veteran's death, could be secondary to COPD, which makes the Veteran's death a service-connected event by interpreting the clinical link between PTSD, smoking, COPD, and respiratory failure. In sum, he opined that presuming the Veteran had a valid diagnosis of COPD, then it is likely that the PTSD contributed significantly to the Veteran's death. The Board has reviewed all of the evidence and finds that the preponderance of the evidence shows that the Veteran's PTSD led to increased smoking, which in turn caused his COPD, all of which contributed significantly to his death. Accordingly, the Board finds that service connection for the Veteran's cause of death must be granted. The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (201). In this case, the Board is granting the claim seeking entitlement to service connection for the Veteran's cause of death. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed as to this issue. With respect to the claim under 38 U.S.C.A. § 1318 , the claim is denied as a matter of law. As such, no further notice or assistance would be required to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). ORDER The claim of entitlement to service connection for the cause of the Veteran's death is granted. The claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals