Citation Nr: 0509480 Decision Date: 03/30/05 Archive Date: 04/07/05 DOCKET NO. 01-05 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for Alzheimers/dementia, organic brain syndrome, as secondary to the service-connected left orbital and zygoma fracture with facial scar and hyperesthesia, for accrued benefits purposes. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is the surviving spouse of the veteran who served on active duty from March 1943 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the appellant in the development of the claim and has sufficiently notified her of the information and evidence necessary to substantiate the claim. 2. At the time of his death, in November 2000, the veteran had a claim pending for service connection for Alzheimers dementia. 3. At the time of the veteran's death, there was insufficient competent evidence medically relating his Alzheimers dementia to his period of active service or to a service connected disability. CONCLUSION OF LAW Service connection for Alzheimers dementia, as secondary to the service-connected left orbital and zygoma fracture with facial scar and hyperesthesia, for accrued benefits purposes, is not warranted. 38 U.S.C.A. §§ 1110, 5110, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.1000 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA VA has a duty to notify claimants for VA benefits of information which is required to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). In this case, VA's duties have been fulfilled to the extent possible. Specifically, VA 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 obtain, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). Prior to the initial adjudication of the claim, VA satisfied its duty to notify by means of an September 2002 development letter from the RO to the veteran which addressed her Dependency and Indemnity compensation (DIC) claim. She was told of what was required to substantiate her claim, of her and VA's respective duties, and was asked to submit evidence and/or information to the RO. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(a), (d); 38 C.F.R. § 3.159(c), (d). The claims file contains the veteran's service and private medical records as well as copies of his VA examination reports which were available at the time of his death. There are no identified, outstanding records pertinent to the claim that VA must still attempt to obtain. Accordingly, the duty to notify and assist having been met by the RO to the extent possible, the Board turns to the analysis of the veteran's claim on the merits. Legal Criteria Upon the death of a veteran, periodic monetary benefits to which he was entitled at death based on existing ratings or decisions or those benefits due, based on evidence in the file at the date of death, and unpaid for a period not to exceed two years prior to death, may be paid to his spouse. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). The Board notes that Congress has amended 38 U.S.C.A. § 5121 to repeal the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003. Because the veteran died before the date of enactment, this change does not apply in this case and is noted only for information purposes. Applications for accrued benefits "must be filed within one year after the date of death." 38 U.S.C.A. § 5121(c). The appellant in this case met this requirement by submitting a claim for DIC in December 2000, approximately one month after the veteran's death. It is noted that a claim for DIC by a surviving spouse is deemed to include a claim for any accrued benefits. See 38 C.F.R. § 3.152(b). Service connection may be established for a disability on a direct basis where a current disability exists and that disability either had its onset in service or is the result of a disease or injury incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Thus, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability either (a) proximately resulted from or (3) that a degree of the current disability (b) proximately resulted from aggravation by a service-connected disability. Analysis Review of the claims file reflects that, in April 1998, a Private Physician's Report of Medical Examination in Support of Non-Service-Connected Aid and Attendance, or Housebound Beneftis From the Department of Veterans Affairs, was completed on behalf of the veteran by J. H. Grauke, M.D. This report includes the diagnosis of "Alzheimers/Dementia organic brain syndrome ? related to previous head injury." Upon consideration of medical opinions from C. N. Bash, M.D., a private physician, received in June 2002 and March 2003, as well as a December 2002 VA medical opinion, in a December 2003 rating decision, the RO granted service connection for the cause of the veteran's death. Specifically, upon consideration of the opinions from Dr. Bash, the RO found that the veteran's in-service head injury caused his Alzheimer's Dementia, which was listed as a contributory cause of death on his death certificate. In a February 2005 letter from the appellant's attorney, it is argued that, inasmuch as Dr. Grauke, in his April 1998 medical report, had used a question mark in relating the veteran's Alzheimers/dementia to a previous head injury, the evidence was in equipoise and, resolving reasonable doubt in favor of the appellant, she should be awarded accrued benefits. The appellant's claim for accrued benefits is "derivative of" the claim of the veteran and, by statute, the appellant takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). In the present case, the appellant's claim must be denied because there were no VA benefits to which the veteran was entitled and which were due and unpaid on the date of his death. The Board acknowledges the April 1989 report from Dr. Grauke; however, the Board must conclude that this statement is of diminished probative value. Specifically, the April 1989 report from Dr. Grauke, stating that it was questionable as to whether the veteran's Alzheimers/dementia organic brain syndrome was related to a previous head injury, is of diminished probative value because it is not based on a review of the veteran's claims file, to include his medical history, and there is no rationale to support this statement. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). Additionally, the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). In addition to the cryptic notation from Dr. Grauke, the record contains a May 1999 report of an examination conducted by Paul W. Lambert, M.D.; the report of a VA examination conducted in July 1998; and a summary (signed by Dr. Grauke) of the veteran's hospitalization at a private medical facility in February 1998. None of these records make any reference to a possible connection between the service- connected residuals of left orbital and zygoma fractures and the veteran's Alzheimer's dementia. Consequently, the isolated comment from Dr. Grauke is of limited probative value as regards the service connection issue in question. Moreover, even if Dr. Grauke had reviewed the veteran's claims file and provided an explanation for his statement, it amount to little more than speculation regarding the possibility of a connection between Alzheimers dementia and the veteran's head injury. In this regard, the Court has held on numerous occasions that medical opinions which are general, vague or inconclusive are of limited probative value. See e.g., Morris v. West, 13 Vet. App. 94, 97 (1999) [diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative]; Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) [statement from physician about possibility of link between chest trauma and restrictive lung disease was too general and inconclusive to constitute material evidence]; Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) [medical evidence which merely indicates that the alleged disorder "may or may not" exist is too speculative to establish the presence of the claimed disorder. The Court has held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak, supra. This first probative evidence of a link between the veteran's head injury and his diagnosis of Alzheimers dementia was not received until June 2002, when Dr. Bash reviewed the veteran's medical history, to include his service medical records, and concluded that the veteran's Alzheimers dementia was caused by his in-service head injury. Accordingly, entitlement to service connection did not arise until June 2002, after the veteran's death in November 2000. In view of the foregoing, the Board finds that the appellant's claim for accrued benefits must be denied. 38 U.S.C.A. §§ 1110, 5110, 5121; 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.1000. ORDER Entitlement to service connection for Alzheimer's/dementia, organic brain syndrome, as secondary to the service-connected left orbital and zygoma fracture with facial scar and hyperesthesia, for accrued benefits purposes is denied. _______________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs