Citation Nr: 1307370 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-28 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and W.M. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from July 1951 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision, mailed to the appellant in October 2007, by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2012, the appellant and W.M. testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. The October 2007 notification letter accompanying the September 2007 rating decision informed the appellant that her claims for death pension and accrued benefits were denied, as well as the claim of entitlement to service connection for the cause of the Veteran's death. In her December 2007 Notice of Disagreement (NOD), the appellant asserted dissatisfaction with the denial of her claims. A Statement of the Case (SOC) was issued in May 2009, as to the issue of entitlement to service connection for the cause of the Veteran's death, the appellant perfected her claim as to the same in July 2009, and she appeared before the Board in November 2012. At the time of her Board hearing, she and her attorney only asserted entitlement to service connection for the cause of the Veteran's death. The Board notes here that there were no pending claims before VA at the time of the Veteran's death, as the last record in the claims file dated prior to the Veteran's death in January 2007 was an April 1995 rating decision, mailed to the Veteran in May 1995, continuing the disability assigned to his service-connected Hodgkin's disease. Further, the Board notes that the claim granted herein, service connection for the cause of the Veteran's death is a greater benefit than that of death pension and thus the claim of entitlement to death pension is rendered moot. FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in January 2007, and that the immediate cause of death was circulatory collapse, due to or as a consequence of blunt force injury following a motor vehicle accident. 2. At the time of his death, the Veteran was service-connected for Hodgkin's disease and residuals of a splenectomy. 3. The evidence of record indicates that the residuals of the Veteran's service-connected Hodgkin's disease included frequent bouts of autoimmune hemolytic anemia requiring multiple blood transfusions, and that the Veteran's severe anemia caused his fatal motor vehicle accident. 4. A disability of service origin, Hodgkin's disease, is shown to have been causally or etiologically related to, or to have played a role in producing or hastening the Veteran's death. CONCLUSION OF LAW The Veteran's death was caused, or substantially or materially contributed to, by service-connected Hodgkin's disease. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant. Cause of Death When a Veteran dies from a service-connected or compensable disability, VA shall pay dependency and indemnity compensation to such Veteran's surviving spouse, children or parents. 38 U.S.C.A. § 1310. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In making all determinations, the Board must fully consider the lay assertions of record. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and a claimant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The death certificate states the Veteran died in January 2007, and that the immediate cause of death was circulatory collapse, due to or as a consequence of blunt force injury. The appellant asserts entitlement to service connection for the cause of the Veteran's death on the basis that his service-connected Hodgkin's disease rendered him susceptible to blackouts, falls, and periods of disorientation; and that he was treated with regular blood transfusions. She asserts that the Veteran experienced an episode of these symptoms while driving home from a store and hit a tree at a high rate of speed and died. In written statements of record, as well as during hearing testimony before the Board in November 2012 and before a Decision Review Officer (DRO) in March 2011, the appellant reported that she learned that the clerk at the store where the Veteran visited immediately prior to his fatal motor vehicle accident noted that the Veteran had difficulty locating his wallet and paying for his oil change. She noted that the clerk was no longer with the company and she was thus unable to obtain his written statement. W.M., the Veteran's step-daughter, during the Board hearing, asserted that she drove many times with the Veteran and it was uncharacteristic of him to speed. She asserted that the Veteran must have been disoriented at the time of his fatal motor vehicle accident, as she had driven the route he should have taken on the day of his death with him numerous times and that the Veteran had traveled an unfamiliar and out-of-the-way route on that day. She reported that the Veteran was hospitalized on a number of occasions due to falling and a "low blood count" and that he seemed pale and weak during the holidays immediately preceding his death. The appellant and W.M. are competent to report as to what they observed of the Veteran's behavior, and the appellant is competent to report what she heard or learned as to the circumstances of the Veteran's fatal motor vehicle accident. Layno, 6 Vet. App. 465, at 469-70. There is no evidence that either party is not credible. Private treatment records dated in September 2006, dated approximately four months prior to his death, indicate that the Veteran was treated for his long-standing idiopathic thrombocytopenic purpura secondary to his Hodgkin's lymphoma. The records indicate that the Veteran's spouse brought him to the emergency department because he was stumbling more than usual and had grown progressively weaker. He underwent a blood transfusion. The Veteran's VA physician submitted a letter in support of the appellant's claim in July 2009. He reported that he had been treating the Veteran since October 2000. He provided a recitation of the events leading up to the Veteran's fatal motor vehicle accident. He asserted that it was entirely plausible that the Veteran was severely anemic at the time of his death and that such may have been the cause of the motor vehicle accident. He reasoned that the Veteran's history included Hodgkin's lymphoma manifested by frequent bouts of autoimmune hemolytic anemia that required multiple blood transfusions. He further reported that without an autopsy, which was not done, confirmation in this regard is impossible. While the physician used the term "entirely plausible" rather than "as likely as not", the use of cautious language does not always express inconclusiveness in a medical opinion. Rather, the opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Board thus finds that the VA physician's letter, read in its entirety, clearly conveys a positive nexus opinion. As the VA physician was the Veteran's physician for a long period of time, he is familiar with the Veteran's history and cited relevant medical data specifically related to the Veteran. There is no evidence that there exists outstanding medical evidence not known to the physician at the time of his letter. The physician offered a reasonable medical basis for his conclusion. Absent credible evidence to the contrary, the Board is not in a position to further question the physician's opinion. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Significantly, there is no negative evidence in the current appeal. The analysis may be stated briefly. In light of the favorable decision, the Board need not conduct an analysis as to any alternate theories of entitlement. The Board finds that the lay and medical evidence of record supports the conclusion that a disability of service origin, the Veteran's service-connected Hodgkin's disease, is causally or etiologically related to, or played a role in producing or hastening the Veteran's death by causing the anemia which rendered him disoriented and susceptible to blackouts and thus caused his fatal motor vehicle accident. In this circumstance, all reasonable doubt is resolved in the appellant's favor and the claim of entitlement to service connection for the cause of the Veteran's death is granted. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs