Citation Nr: 1311599 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 08-20 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1969. He was a combat Veteran with service in the Republic of Vietnam during the Vietnam War. He died in August 2007. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a December 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2011, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC/Court). In September 2012, the CAVC vacated the Board's decision and remanded this issue to the Board pursuant to the August 2012 joint motion for partial remand (JMR). Accordingly, this issue is again before the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on her part. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. VA has a duty to 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. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). I. VA Medical Records Specifically, the September 2012 JMR determined that the Board erred by deciding the appellant's claim based upon an incomplete set of VA treatment records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, the RO should obtain and associate with the claims file all outstanding VA records. In particular, the appellant had submitted a March 2008 statement that indicated the Veteran had sought treatment for his service-connected posttraumatic stress disorder (PTSD), pertinent to the cause-of-death claim, at the Tomah, Wisconsin VA Medical Center (VAMC) from 1996 until he died. However, it appears that many of these records were missing. For instance, there was a gap in his VA treatment records associated with the claims file, from 1996 to 2006. Following the JMR, the appellant's attorney submitted a copy of some of these VA treatment records from Tomah VAMC, dated from January 2001 to December 2006. In an effort to fully comply with the JMR, however, the Board will remand this claim to the RO to obtain any further VA treatment records that might still be available and yet unassociated with the claims file. On remand, the RO must ensure that no outstanding VA treatment records remain from the Tomah, Wisconsin VAMC or any other VA facility, dated from 1996 until the Veteran's death. Any additional VA or private treatment records that are potentially relevant would need to be obtained before deciding her appeal. See 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(1) and (2) (2012). As such, this claim must be remanded so that the RO can attempt to obtain such information, because it remains critically important to the outcome of the appellant's claim. A remand by the Court or the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). A Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). II. Readjudication of Claim and Issuance of Notice of Appellate Rights The September 2012 JMR also points out that the December 2007 RO letter, which initially denied the appellant's claim, may not have served as an actual adjudication of the claim nor sufficiently informed her of her appellate rights. Rather, the JMR found that the claim of entitlement to service connection for the cause of the Veteran's death was initially adjudicated and denied in the June 2008 statement of the case (SOC). Following the receipt of a substantive appeal (VA Form 9) in July 2008, the Board denied the claim in a November 2011 decision. The JMR has instructed the Board to review the record, including the procedural history of the appellant's claim, and consider whether she was properly informed of her appellate rights. On review, the Board sees there was no readjudication of the claim by the RO after the June 2008 SOC, such as by the issuance of a Supplemental SOC (SSOC). The absence of any readjudication is problematic, because the JMR identifies the June 2008 SOC as the initial adjudication of the claim, not the December 2007 RO decision letter. On remand, in the event that the appellant's claim is not resolved to her satisfaction, then the RO must issue an SSOC to readjudicate the claim. Moreover, the Board observes that the December 2007 RO letter, which purported to deny the cause-of-death claim, was accompanied by a VA Form 4107, "Notice of Procedural and Appellate Rights." To the extent that the June 2008 SOC can be construed as the initial adjudication of the claim, the absence of any accompanying notice of appellate rights is problematic. On remand, the RO must notify the appellant of her appellate rights, with issuance of a current version of VA Form 4107. III. Hupp-compliant Notice The RO needs to send the appellant-widow additional notice to comply with the Veterans Claims Assistance Act (VCAA), and in particular, the holding in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In Hupp, the Court held that for Dependency and Indemnity Compensation (DIC) benefits, including claims for cause of death, VCAA notice must include: (1) a statement of the conditions, if any, for which the veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. A VCAA notice letter was sent to the appellant in March 2008. This notice letter generally addresses what is required to establish service connection for cause of death, and lists the Veteran's several service-connected conditions at death, but does not list the disability ratings for the individual disabilities or the Veteran's combined disability rating at death. In that regard, the Veteran was service connected for several disabilities at the time of death, as follows: (1) PTSD, assigned a 100 percent disability rating; (2) right fourth metatarsal fracture, assigned a 0 percent disability rating; and (3) right auricle cyst, assigned a 0 percent disability rating. A combined rating of 100 percent was in effect from December 1998. The RO must not only inform the appellant that the Veteran was service-connected for these disabilities, but also enumerate the appropriate disability ratings and advise her of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Most importantly, the March 2008 VCAA notice is not responsive to the appellant's specific contention that the Veteran's service-connected PTSD was either a contributory or a principal cause of his motor vehicular death. The Court held in Hupp that the section 5103(a) notice letter should be "tailored" and must respond to the particulars of the application submitted. Therefore, the RO must send the appellant a Hupp-compliant section 5103(a) notice prior to deciding the appeal of her cause-of-death claim. IV. VA Medical Opinion on Cause-of-Death Claim In this case, the appellant-widow contends that the Veteran's cause of death should be entitled to service connection and thus, warrant VA DIC. The appellant-widow asserts that the Veteran committed suicide because of his severe, service-connected PTSD. As background, the Veteran's death certificate shows that he died in August 2007, and the immediate cause of death was listed as severe blunt force trauma to head and neck, which was due to or as a consequence of probable cervical fracture, which was due to or as a consequence of "driver of a pick-up truck, seat belted." It was also noted that the Veteran lost control of his truck on a wet road, went into ditch and rolled his truck, landing it on its roof. The police accident report surrounding the Veteran's fatal motor vehicle accident indicates that the Veteran was traveling eastbound in his vehicle when he lost control, swerved left then right, entered a ditch, overturned, and the vehicle came to a final rest on its top. The investigating officer indicated that he drove the approximate path of the Veteran's vehicle at 50 miles per hour and did not notice any road conditions that would have contributed to the crash. The road was noted to be straight, level/flat, and wet. It was daylight and there was rain. To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service had either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that 38 U.S.C. § 5103A(a) does not always require VA to assist in obtaining a medical opinion for a DIC claim, but it does require VA to assist in obtaining such whenever it is necessary to substantiate the DIC claim. The evidence in support of the claim is mixed. Notably, there is positive and negative medical opinion evidence concerning the determinative question in this case, namely whether the Veteran's PTSD caused the Veteran to commit suicide by means of his fatal motor vehicle accident. As initial supportive evidence, there are statements by the appellant-widow and the Veteran's friend, who both indicate that they believe the Veteran's death was a vehicular suicide. The appellant-widow stated that the Veteran had indicated that he might kill himself with a gun, and at times had removed guns from their storage to handle them. She does not mention a time frame for such incidents, but medical notes indicate no evidence of suicidal thinking around the time of his death. She also reported that the Veteran's DUI on Veteran's Day in 2006, and loss of his volunteer position were very hard on him. She believes that the accumulated effect of these losses caused the Veteran to be suicidal the day of the accident. The Veteran's friend's statement makes the point that he and the Veteran had discussed suicide and how they might accomplish it. Driving off the road was one of the means they had discussed. He also reported that the Veteran had told him just a few months before the Veteran's death that his wife would be taken care of in the event of his death. These factors caused him to believe that the Veteran decided to kill himself in a "spur of the moment thing." There are numerous VA outpatient and inpatient treatment records for the Veteran's PTSD. Shortly before the Veteran's death, an early August 2007 PTSD group note indicated that the Veteran stated that he was doing well and planned on taking a fishing trip in a few weeks. There was no evidence of suicidal or homicidal ideation. An August 2007 VA individual treatment note authored by the Veteran's treating social worker indicates that the note was written four days following the Veteran's death. The social worker noted that the Veteran was seen prior to his death and at that time he was doing very well in all respects. In fact, the social worker stated that the Veteran was as good as the social worker had seen in the 10 years of involvement with him. He demonstrated, as always, his strength of character and determination to carry on. Concerning the evidence against the appellant-widow's claim, there is a negative medical opinion, dated in May 2008, provided by VA compensation clinical psychologist. The VA compensation psychologist noted that, in general, treatment notes are consistent in reporting that the Veteran was doing fairly well psychologically during the year prior to his death. The VA compensation psychologist noted that the Veteran had a long history of severe PTSD and depression, with clear suicidal thinking on several occasions. He had been significantly depressed several months before his death due to a variety of factors, but had recovered and was seen as stable by the mental health professionals who knew him well during the last two months immediately preceding his death. The VA compensation psychologist also opined that it is not possible to assess with any certainty what the Veteran was thinking at the time of the accident. The VA compensation psychologist stated, "One might speculate endlessly about possible causes of the accident, given a wet road, a Veteran with severe PTSD who had been suicidal in the past, the often impulsive nature of suicide, etc. Such speculation could also include the idea that a Veteran trying to kill himself might be more deliberate in choosing a section of road with a curve, another large vehicle, a dangerous ravine, etc., to ensure success." The psychologist opined that there is no information directly connecting the accident to any intention on the part of the Veteran. Treatment notes indicate that he was doing well psychologically just prior to the accident. The VA compensation psychologist concluded, "Therefore, it is less likely than not that the Veteran deliberately killed himself by vehicular accident. While it is still possible that he did so, and while such an action would have been consistent with his state of mind on previous occasions, it is more likely than not that, at the time of the accident, the Veteran simply failed to handle his vehicle safely, resulting in an unexpected accident and his death. Concerning the evidence supporting the Veteran's claim, there is a positive medical opinion, dated in January 2013, by a private forensic psychologist, G.A.B., Ph.D. The private psychologist reviewed the Veteran's mental health treatment records, noting a history of past hospitalization in the 1990s for threatening suicide and suicidal ideation. There were additional psychiatric hospitalizations in October 2000 and January 2001 to March 2001 for repeated suicidal thoughts and increased depression. He was arrested on Veteran's Day in 2006, for a DUI, apparently due to trouble dealing with his Vietnam experiences. The private psychologist noted that the Veteran had a longstanding history of mental illness and alcohol abuse dating back to the mid 1970s. The private psychologist concluded, "Based upon available information, in my clinical opinion, it is more likely than not that [the Veteran's] service-connected PTSD caused his death." The psychologist reasoned that approximately three months before the Veteran died, he suffered a significant stressor as his brother-in-law died of cancer, which then triggered his survivor's guilt from Vietnam. The private psychologist acknowledged, "[t]hough postmortem medical records reflected how well [the Veteran] was functioning prior to his death ("as good as this writer has seen in the ten years of involvement with him"), given [the Veteran's] history of suicidal ideation and reluctance to truly disclose such thoughts to therapists, this sentiment in the medical record is indicative of a psychological phenomenon characterized as a "flight into health." Essentially, a once depressed and despondent person may then suddenly present as doing very well, no signs of depression. In actuality, this is often a sign of suicide as the person feels happy and relieved because they will soon be out of their mental anguish and despair." The negative VA medical opinion was based on an incomplete set of medical records, as numerous VA treatment records, dated from 2001 to 2006, were not yet associated with the claims file. In contrast, the positive private medical opinion was based upon thorough review of the claims file, including additional VA treatment records through the time of the Veteran's death. Consequently, another medical opinion is needed to assist in determining whether the Veteran's service-connected PTSD caused or contributed substantially or materially to his ultimate death, particularly from suicide by motor vehicle accident. Additional medical comments would help resolve the claim, due to the medical complexity of the claim raised. Accordingly, the case is REMANDED for the following action: 1. On remand, the RO must notify the appellant of her appellate rights, with issuance of a current version of VA Form 4107. 2. Send the appellant an additional VCAA notice letter to comply with the Court's holdings in Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) by containing: (1) a statement of the conditions for which the Veteran was service connected at the time of his death, and enumerate the disability ratings for the individual service-connected disabilities and the combined disability rating for all service-connected disabilities; (2) an explanation of the evidence and information required to substantiate a DIC claim, including for cause of death, based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. In particular, the letter should be responsive to the appellant's specific contention that the Veteran's service-connected PTSD was either a contributory or a principal cause of his motor vehicular death. 3. Ask the appellant whether there are any additional VA or private treatment records for the Veteran that need to be obtained and considered in her appeal. Then obtain any outstanding VA treatment records for the Veteran from the Tomah, Wisconsin VAMC, especially dated since 1996 until the Veteran's death in August 2007. See 38 C.F.R. § 3.159(c)(2) (2012). Obtain any outstanding private treatment records which are identified, following receipt of proper consent from the appellant. Any negative development should be properly annotated into the claims file. See 38 C.F.R. § 3.159(e) (2012). 4. After completing the above requested development in paragraphs 1, 2, and 3, the Veteran's clinical record should be reviewed by an appropriate VA clinician to obtain a medical nexus opinion. The clinician must review the claims file for pertinent medical and other history, including a complete copy of this remand. Please provide an opinion on whether it is at least as likely as not (a 50 percent or more likelihood) that the Veteran's service-connected PTSD caused or contributed substantially or materially to cause the Veteran's terminal motor vehicle accident? The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The VA clinician must review the claims file for pertinent medical and other history. This clinician should specifically address the conflicting positive and negative medical opinion evidence of record. This clinician must discuss the rationale of all conclusions and/or opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file. 5. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 6. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Appellant's satisfaction, send her and her attorney a Supplemental SOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).