Citation Nr: 1136303 Decision Date: 09/27/11 Archive Date: 10/03/11 DOCKET NO. 10-36 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1948 to September 1953. He served in combat in Korea and received multiple awards of the Purple Heart Medal, and reportedly received the Combat Infantryman Badge. The appellant is the Veteran's widow. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for the cause of the Veteran's death, Dependency and Indemnity Compensation under (DIC) 38 U.S.C.A. § 1318, and accrued benefits. On her August 2008 Form 9, the appellant specifically limited her appeal to service connection for the cause of death, and that is the only issue that was certified as being on appeal. Please note 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. The Veteran died in April 2008; the immediate cause of death was subdural hematoma and no other causes or significant conditions contributing to the Veteran's death were listed on his death certificate. 2. At the time of the Veteran's death, service connection was in effect for the following disabilities: post traumatic stress disorder (PTSD), residuals of a gunshot wound (GSW) to the left shoulder, foot, and leg; he had also been in receipt of a total rating for compensation purposes based on individual unemployability (TDIU), effective October 16, 2000, as well as special monthly compensation (SMC) under 38 U.S.C.A. § 1114, subsection (k) and38 C.F.R. § 3.350(a) on account of loss of use of one foot from January 21, 1999 3. The Veteran's fatal subdural hematoma was not the result of an in-service disease or injury, and was not etiologically related to a service-connected disability. 4. The service-connected PTSD, residuals of a GSW to the left shoulder, foot, and leg were not principal or contributory causes of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. § 1110, 1131, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a post-adjudication letter dated in June 2011, the RO notified the appellant of the evidence needed to substantiate her claim for service connection for the cause of the Veteran's death. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist her in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran's status as a Veteran has been substantiated. The appellant was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of her claim, in the June 2011 letter. In the context of a claim for service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the disabilities, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of a veteran's death based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a claim for service connection for the cause of a veteran's death based on a disability not yet service-connected. Unlike a claim to reopen, an original claim for service connection for the cause of a veteran's death imposes upon VA no obligation to inform a claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The June 2011 letter notified the appellant that the Veteran was service connected for PTSD at the time of his death and provided an explanation of the evidence and information required to substantiate her claim based on a disability not yet service-connected. Although the letter did not explicitly tell the appellant that the Veteran also established service connection for residuals of GSWs to the left shoulder, foot, and leg during his lifetime, the November 2008 rating decision, July 2010 statement of the case, and July 2011 supplemental statement of the case (SSOC) did. The Board acknowledges that these post-decisional documents could not provide VCAA notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant should, however, have been put on notice as to what was required. She has made contentions regarding the fact that the Veteran's PTSD and shrapnel in his legs were due to service and were related to the cause of his death. In addition, she had a meaningful opportunity to participate in the adjudication of her claim and submit additional evidence and argument after receiving the notice. There was a timing deficiency in that the June 2011 letter was sent after the initial adjudication of the appellant's claim. This timing deficiency was cured by readjudication of the claim in a July 2011 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service VA and private treatment records. Under the VCAA, VA is obliged to obtain a medical opinion in a cause of death claim when necessary to assist a claimant in substantiating the claim. 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (holding the criteria for obtaining a medical opinion set forth in 38 U.S.C.A. § 5103A(d) are inapplicable to cause of death claims). VA has not obtained a medical opinion; because, as discussed below, even if the appellant's contentions are accepted, there is no indication that the service connected disabilities were a proximate or contributory cause of his death, or that the cause of death was directly related to a disease or injury in service. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection for the cause of the Veteran's death is thus ready to be considered on the merits. Analysis Pursuant to 38 U.S.C.A. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). 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 service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, 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. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In a DIC claim based on cause of death, the first requirement for service connection, evidence of a current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between 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"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in April 2008. His death certificate listed the immediate cause of death as subdural hematoma and no other causes or significant conditions contributing to the Veteran's death were listed. At the time of the Veteran's death, service connection was in effect for the following disabilities: post traumatic stress disorder (PTSD), rated 30 percent disabling, effective January 22, 1990; residuals of a GSW to the left shoulder, rated 20 percent disabling, effective January 21, 1999; residuals of a GSW to the left foot, rated 20 percent disabling, effective October 16, 2000; and residuals of a GSW to the left leg, rated 20 percent disabling, effective December 1, 1999. He had also been in receipt of TDIU, effective September 14, 1999, as well as special monthly compensation (SMC) under 38 U.S.C.A. § 1114, subsection (k) and38 C.F.R. § 3.350(a) on account of loss of use of one foot from January 21, 1999. The appellant reports that the Veteran was placed in a nursing home due to his PTSD and was wheel-chair bound with cellulitis from residual shrapnel in his legs. She stated that an EMT dropped the Veteran while he was being transported, which resulted in a subdural hematoma. The appellant contends that had the Veteran not been in the nursing home due to his PTSD, the EMT would not have had the opportunity to drop the Veteran during transport, therefore, she should be entitled to benefits. An April 2008 report from Advantage Ambulance revealed that the while the Veteran was being removed from the ambulance after transport from an appointment to his nursing home, the gurney bumped a curb and fell over on the right side with the Veteran on it. He was immediately examined and taken to Harrisburg Hospital Emergency Department on April [redacted], 2008. A review of the report as well as hospital treatment records reveal that the Veteran was sedated prior to and through his dialysis treatment and that the fall happened on the way back from his treatment and outside of his nursing home. On admission to Harrisburg Hospital, the Veteran had complaints of central back pain. He was diagnosed as having fall, acute subdural hematoma, and renal failure. He was only able to state his name; however, the EMT reported that the Veteran was "normally sedated like this", otherwise he was combative. During a primary nursing assessment, the Veteran did not answer most questions and the staff was unable to get a lot of information. A pertinent medical history of end-stage renal disease, cardiovascular accident, cardiovascular disease, and noninsulin dependent diabetes mellitus. On a CT scan, the impression was acute appearing left subdural and subarachnoid hemorrhage. The Veteran continued to have problems speaking in which his daughter indicated was abnormal for him. Five hours later, another CT scan revealed that the large left subdural hematoma was increasing in size from the prior scan. Treatment records included an assessment of status post head trauma with severe brain dysfunction. He was placed on life support in which he was removed from six days later and passed away. Regarding whether the Veteran's immediate cause of death, subdural hematoma, was directly related to a disease or injury in service, the Board finds that it was not. The Veteran's death certificate, Harrisburg Hospital treatment records, and report from Advantage Ambulance show that the Veteran's fatal subdural hematoma was due to being dropped while strapped down on a gurney after returning from dialysis treatment to his nursing home. There is no lay or medical evidence directly relating the fatal hematoma to service. The appellant essentially contends that the Veteran's death was proximately caused by the service-connected PTSD or residuals of GSWs to the left shoulder, foot, and leg; because these conditions resulted in his confinement to a nursing home, rendered him in need of a transport by gurney and ambulance, and he would not have been in a position to fall and receive the fatal hematoma if not for the service connected disabilities. Proximate cause is not defined in VA's regulation providing for secondary service connection. 38 C.F.R. § 3.310 (2010). Elsewhere proximate cause has been defined as the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2010). Traditionally, in tort law, "proximate cause" has been defined as a person's wrongful conduct which is a substantial factor in bringing about harm to another. See Restatement (Second) of Torts § 431 (1965). However, an intervening act of a third party, which actively operates to produce harm after the first person's wrongful act has been committed, is a superseding cause which prevents the first person from being liable for the harm which his antecedent wrongful act was a substantial factor in bringing about. Egervary v. Young, 366 F.3d 238, 246 (3rd Cir. 2004) citing Restatement (Second) of Torts § 440-441 (1965). VA's General Counsel has noted that "proximate cause" is defined by Black's Law Dictionary, 213 (7th ed. 1999) as a "cause that directly produces an event and without which the event would not have occurred." VAOPGCPREC 6-2003 (Oct. 28, 2003). The United States Court of Appeals for Veteran's claims has noted that "proximate cause" has been defined as "that which in a continuous sequence produces injury and without which the result would not have occurred." Forshey v. West, 12 Vet. App. 71, 73-74 (1998) There may; however, be more than one action that has an effect in bringing about a harm. When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-2003 (Oct. 28, 2003) citing Shyface v. Secretary of Health & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). Assuming for the sake of argument that the Veteran was a patient in the nursing home due to PTSD and that his inability to walk was the result of his shell fragment injuries; the cause of his hematoma was the intervening actions of those transporting him. At most the service connected disabilities were a remote cause of his being in the situation where the accident occurred. There is no evidence that the service connected disabilities caused or contributed to, the fall of the gurney or the resultant hematoma. Accordingly, the service connected disabilities were not the proximate cause of the Veteran's fatal hematoma. A remaining question is whether the service connected disabilities were contributory cause of death as envisioned in 38 C.F.R. § 3.312(c). The final treatment records make no mention of the service connected disabilities, and as just noted, those disabilities played no reported role in the fall and resulting hematoma. Hence, the evidence is against a finding that the service connected disabilities were a "contributory cause" of the Veteran's death. See 38 C.F.R. § 3.312(c). The Veteran had heroic combat service, and died as the result of an unfortunate accident. There is; however, no basis for finding that his death was service connected. As a preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs