Citation Nr: 1122125 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 08-04 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to death pension benefits. REPRESENTATION Appellant represented by: Carol W. Scott, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and two friends of the Veteran ATTORNEY FOR THE BOARD A. R. Grasman, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to August 1970. The appellant is his widow. This appeal comes before the Board of Veterans' Appeals (Board) from a decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota in October 2006. In August 2010, the appellant testified in a Central Office hearing in front of the undersigned Acting Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. During the hearing the appellant withdrew her claim for entitlement to accrued benefits. See 38 C.F.R. § 20.204 (2010). The Board received additional evidence from the appellant at the hearing in August 2010. The new evidence was accompanied by a waiver of the appellant's right to initial consideration of the new evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c) (2010). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. In October 2010, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901(a) (2010). The requested opinion has been provided and has been associated with the claims folder. The VHA opinion was also provided to the appellant and the appellant's representative. The appellant was afforded 60 days to provide additional argument or evidence. In March 2011, the appellant's representative submitted a statement which is associated with the claims file and has been reviewed. FINDINGS OF FACT 1. The Veteran died in May 2006; according to the death certificate, the immediate cause of death was head trauma, due to (or as a consequence of) a motorcycle accident. 2. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD). 3. The competent evidence of record does not preponderate against the appellant's claim that service-connected PTSD was a contributory cause of the Veteran's death. 4. The appellant's countable income is greater than the maximum annual pension rate applicable to a surviving spouse with no dependent child, for the 12-month annualization periods starting in July 2006. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1310, 1318, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.22, 3.102, 3.159, 3.303, 3.304, 3.312 (2010). 2. The appellant does not meet the basic eligibility requirements for death pension benefits. 38 U.S.C.A. §§ 101, 1501, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.203, 3.314 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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. 2010); 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 her representative, if any, 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 notice from 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 provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board is granting service connection for the cause of the Veteran's death, which is the full benefit sought on appeal as to that issue. Accordingly, the duty to notify and the duty to assist will not be further discussed for this issue. Regarding the pension issue, the appellant was sent a VCAA letter in July 2006. This letter addressed the notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim for pension and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her possession to the AOJ. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. VA also has a duty to assist the appellant in the development of the claim. This duty includes assisting in the procurement of service treatment records, pertinent medical records and providing an examination/opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records, DD Form 214, an accident report, private medical records and VA medical records. The appellant was provided an opportunity to set forth her contentions during the hearing before the undersigned Acting Veterans Law Judge. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the pension claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Cause of Death Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310 (West 2002 & Supp. 2010); 38 C.F.R. § 3.312 (2010). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. 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; 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. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ, are not held to have contributed to a death that is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service connected diseases affecting vital organs should receive careful 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 diseases or injury primarily causing death. 38 C.F.R. § 3.312(c)(2), (3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In this case, the Veteran died in May 2006. The Death Certificate provides that the immediate cause of death was head trauma due to (or as a consequence of) a motorcycle accident. No other underlying causes or significant conditions contributing to death were listed on the death certificate. At the time of the Veteran's death, he was service connected for, among other things, PTSD and assigned a 100 percent disability rating since September 2002. The appellant asserts that the Veteran's service-connected PTSD caused, or at least contributed, to the Veteran's death. The appellant contends that the Veteran's death is related to service because his symptoms of PTSD caused him to be reckless and drive his motorcycle at a high rate of speed causing the accident. Thus, the appellant contends that service connection is warranted for the cause of the Veteran's death because the accident that ultimately caused his death occurred as a result of a service-connected disability. A Motor Vehicle Accident Report from the State of North Dakota provides that in May 2006, the Veteran was involved in a motorcycle accident. The report shows that the Veteran had just bought the motorcycle and was en route home. An explanation of the accident shows that the Veteran was driving at an unknown speed and lost control of the motorcycle. The Veteran, who was not wearing a helmet, was ejected off the motorcycle. The appellant submitted a statement from a certified trauma specialist in January 2010. The specialist noted that he interviewed the appellant and reviewed the lay statements of record, private medical records, VA medical records and a December 2002 VA Compensation and Pension Examination. The specialist found that the Veteran's PTSD was a contributory factor in his death. The rationale was that the Veteran's combat experiences, which caused his PTSD, caused a violation of expectations and deeply held beliefs such as trust of others and control over oneself. The specialist explained that in repeated exposure to traumatic events, such as in combat, the victim learns to be helpless. Further, they lose the capacity to appreciate the connection between their actions and shaping the world to meet their needs. The specialist explained that some victims display impulsive, risk-taking behaviors in an attempt to experience trauma and regain control that was disrupted by the original traumatic events. They unconsciously create a high-risk situation in an attempt to regain some sense of control. The specialist described a chronic hyperarousal state which interferes with their ability to make calm and rational assessments. Further, a person, such as the Veteran, required more and more adrenaline and increased risk taking in an attempt to regain control and mastery of their environment. Specific to the Veteran, the specialist noted that on the day of his death, the Veteran picked up a brand new motorcycle that he had never ridden before. The specialist noted that the Veteran was driving at a high rate of speed in windy conditions and lost control of his motorcycle. The Veteran was also not wearing a helmet. He concluded that all of these occurrences were consistent with the repetition compulsion seen in victims of PTSD. As such, the specialist found that the PTSD resulting from the Veteran's combat experiences drove the Veteran to ever increasing levels of risk taking behavior and thus contributed significantly to the events which led to his death. In the VHA opinion, a VA psychiatrist noted the Veteran's combat experiences in Vietnam and his occupational history after service. Additionally, the Veteran was diagnosed with PTSD in 2002 and received mental health treatment through VA. The psychiatrist noted the Veteran's symptoms of PTSD, the medications taken for treatment of PTSD and his progress during treatment. The psychiatrist noted that in May 2006, the Veteran was involved in the motorcycle accident, was not wearing a helmet and crashed at highway speed. The psychiatrist provided that, based on her review of the available information in the claims file, she would have to resort to mere speculation with regard to whether the Veteran's PTSD contributed substantially or materially to his death or combined to cause, aid, lend or assist with the production of his death; or whether PTSD casually shared in the production or causal connection causing his death. The psychiatrist explained that motorcycles are known to be vehicles that can be dangerous to ride and many individuals, who have never been in the military ride motorcycle, speed on motorcycles and do not wear helmets. These individuals are sometimes involved in motorcycle accidents sustaining serious injury or death. The psychiatrist noted that the Veteran was doing fairly well in his treatment for PTSD and depression. Given the many unknown variables, including an accident report describing the investigation and conclusion surrounding the accident as well as more recent documentation regarding the Veteran's mental health status closer to the time of his death, the psychiatrist concluded that it was virtually impossible and would only be speculative to determine that the Veteran's history of PTSD was somehow involved with the Veteran's death. The Board has considered all the evidence of record. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, the Board finds that the opinion submitted from the private certified trauma specialist is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). It is based upon consideration of the pertinent evidence of record and provided a rationale for the conclusion reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Regarding the VHA opinion, although it is speculative in nature, it was supported by adequate rationale. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability to reach a conclusion). The Board therefore concludes that the VA opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2010). Based on the foregoing, the Board finds that the evidence of record does not preponderate against the appellant's claim. There is one opinion which could not reach a conclusion as to whether PTSD contributed to the Veteran's death and one opinion that unequivocally supports the contention that PTSD contributed to the Veteran's death. As such, the evidence is at least in relative equipoise as to whether PTSD contributed to the Veteran's death and, as such, the benefit of the doubt is afforded to the appellant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for the cause of the Veteran's death is warranted. Death Pension Benefits Pension is a monthly or other periodic payment made by VA to a Veteran because of service, age, or nonservice-connected disability, or to a surviving spouse or child of a Veteran of a period of war because of the nonservice-connected death of the Veteran. See 38 U.S.C.A. §§ 1521, 1541 (West 2002). The amount of pension actually received is the difference between the recipient's countable income and the maximum annual rate permitted by VA given the recipient's circumstances. Pension is not payable if the recipient's countable annual income exceeds the maximum limitation given the recipient's circumstances as set forth in the legislation. See 38 U.S.C.A. §§ 101, 1501 et seq. (West 2002 & Supp. 2010). Income eligibility for pension, and the amount of any pension payable, is determined by subtracting the surviving spouse's annual countable family income from the maximum annual pension rate applicable to the surviving spouse's circumstances. The maximum annual pension rate (MAPR) is adjusted from year to year. Effective December 1, 2005, the MAPR for a surviving spouse without dependent child was $7,094. Effective December 1, 2006, the MAPR for a surviving spouse without dependent child was $7,329. Effective December 1, 2007, the MAPR for a surviving spouse without dependent child was $7,498. Effective December 1, 2008 and 2009, the MAPR for a surviving spouse without dependent child was $7,933. See 38 C.F.R. § 3.23(a)(5) (2010); M21-1, Part I, Appendix B; see also www.vba.va.gov/bln/21/rates/pen02.htm. There was no cost-of-living adjustment for 2010, and the same rates apply. For awards of nonservice-connected disability death pension benefits based on claims received on or after October 1, 1984, the effective date is the first day of the month in which the Veteran's death occurred if the claim is received within 45 days after the date of death; otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(c)(3) (2010). In determining the surviving spouse's annual countable family income, payments of any kind from any source shall be counted as income during the twelve-month annualization period in which received, unless specifically excluded. See 38 U.S.C.A. § 501 (West 2002); 38 C.F.R. §§ 3.271, 3.272(a) (2010). Recurring income means income which is received or anticipated in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.) and which will continue throughout an entire 12-month annualization period. The amount of recurring income for pension purposes will be the amount received or anticipated during a 12-month annualization period. See 38 C.F.R. § 3.271(a)(1). Old age and survivor's insurance and disability insurance under Title II of the Social Security Act will be considered income as a retirement benefit. See 38 C.F.R. § 3.262(f) (2010). Benefits received under non-contributory programs, such as old age assistance, aid to dependent children, and supplemental security income are subject to the rules of 38 C.F.R. § 3.262(d) applicable to charitable donations. See 38 C.F.R. § 3.262(f). Income received from real or personal property owned by the claimant will be counted. See 38 C.F.R. §§ 3.262(k)(2), 3.271(d). Whenever there is a change in the maximum annual pension rate, or in the surviving spouse's family income, the monthly rate of pension payable shall be adjusted effective the date of change. See 38 U.S.C.A. § 501; 38 C.F.R. § 3.273 (2010). Unreimbursed medical expenses in excess of five percent of the MAPR may be excluded from an individual's income for the same 12-month annualization period to the extent that the medical expenses were paid. See 38 C.F.R. § 3.272(g)(2)(iii). Burial expenses paid by a surviving spouse (to the extent such burial expenses are not reimbursed by VA) during the calendar year following that in which death occurred may be deducted from annual income for the 12-month annualization period in which they were paid, or from annual income for any 12-month annualization period which begins during the calendar year of death-whichever is to the claimant's advantage. Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(h). The Veteran died on May [redacted], 2006; the appellant filed a claim for VA death pension benefits on July 7, 2006. Because a claim was not filed within 45 days of the Veteran's death, the appellant is potentially eligible for death pension benefits effective July 7, 2006. The question in this case is whether the appellant's annual income from July 2006, to the present exceeded the statutory limits. The Board must make its decision on a year-by-year basis pursuant to statute. The appellant has indicated that the only income received for herself is the boilermaker pension. In the July 2006 claim, she indicated that her monthly income from the pension was $1,149.00 and her expected monthly income for the next 12 months was $2,735.00. In the Board hearing in August 2010, she testified that her monthly income decreased to $1,091. Regardless, for each of the 12-month annualization periods starting in 2006, the appellant's income exceeds the maximum allowable income for a surviving spouse without dependent child, respectively. Additionally, expenses of last illnesses, burials, and just debts may be excluded for purposes of calculating annual countable income to determine eligibility for improved death pension benefits. These expenses specified in 38 C.F.R. § 3.272(h) may be deducted from annual income for the 12-month annualization period in which they were paid, or from annual income for any 12-month annualization period which begins during the calendar year of death. Otherwise, such expenses are deductible only for the 12-month annualization period in which they were paid. Records reflect that VA paid a burial allowance of $300 in December 2006. The total cost of goods and services related to the funeral was $6,828, and was paid in full in 2006. Hence, the appellant can exclude $6,528 from countable income for incurred, unreimbursed funeral expenses in 2006. Applying these deductions to the appellant's countable income for the 12-month annualization period starting July 2006, the appellant's income still exceeds of the maximum allowable income for a surviving spouse without dependent child. Thus, the appellant is not entitled to death pension benefits. ORDER Service connection for the cause of the Veteran's death is granted. Death pension benefits are denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs