Citation Nr: 1314082 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 11-08 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant, L.O. and M.C. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1952 to September 1954. He died in February 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts and Philadelphia, Pennsylvania, respectively. Due to the location of the appellant's residence, jurisdiction of this appeal is with the RO in Boston, Massachusetts. In the one-year period following the June 2009 rating decision, the appellant submitted a statement providing additional information about her claim in January 2010. The Board observes that in Bond v. Shinseki, 659 F.3d 1362 (2011), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2011). Submission of additional evidence does not extend the period for initiation of an appeal by submission of a notice of disagreement. 38 C.F.R. § 20.304. However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Here, within the appeal period of the June 2009 rating decision, new and material evidence consisting of the appellant's statement was received. As such, the additional evidence is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Although the September 2010 notice of disagreement was not timely as to the June 2009 rating decision, it was timely as to the August 2010 readjudication of the appellant's claim following the submission of new and material evidence. Consequently, the Board considers the appellant's initial claim adjudicated in both June 2009 and August 2010 to be on appeal. In March 2013, the appellant, her daughter and her son testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran died in February 2009 as result of myocardial infarction with cardiac arrhythmia due to or as a consequence of metastatic lung cancer and bilateral pulmonary emphysema. 2. At the time of the Veteran's death, service connection had been established for posttraumatic stress disorder (PTSD), evaluated as 100 percent disabling; and hemorrhoids, evaluated as noncompensably disabling. 3. The Veteran's PTSD contributed to the production of death. CONCLUSION OF LAW PTSD contributed to the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.101, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2012). In this case, the Board is granting in full the issue of service connection for the cause of the Veteran's death. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the appellant, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Analysis The appellant contends that the Veteran's PTSD contributed to his death. See, e.g., January 2010 claim. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). This question will be resolved by the use 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. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). In determining whether a 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) (2012). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for Dependency and Indemnity Compensation (DIC) are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2012). The evidence does not show, nor does the appellant contend, that the Veteran had a myocardial infarction with cardiac arrhythmia, metastatic lung cancer or bilateral pulmonary emphysema as a result of his military service. Rather, she contends that his service-connected PTSD, evaluated as 100 percent disabling at the time of the Veteran's death, contributed to the Veteran's death in that affected his overall health and ability to care for himself. According to post-service medical records, the Veteran had experienced PTSD symptoms since 1953. See February 1999 fee-based examination. An October 2000 VA examination indicates that the Veteran's PTSD impairment was so severe that it warranted a 100 percent rating. The examination report reveals that the Veteran was disheveled, obviously having difficulty with self-care and hygiene. He had memory problems. The Veteran slept very little and had panic attacks on a daily basis, lasting from 30 minutes to one hour. His family members were reportedly quite concerned about him. The Veteran received a Global Assessment of Functioning (GAF) score of 30. The Board observes that a GAF score of 30 is indicative of behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). VA treatment records dated in January 2009, the day prior to the Veteran's death, indicate that he was disoriented and agitated, requiring restraints. Records the day of his death in February 2009 reveal the Veteran was somewhat oriented to place, but otherwise confused and was combative. Restraints were replaced with mitts. He was shown to be thrashing about his bed. The Veteran passed away in February 2009. The cause of death shown on the certificate of death was myocardial infarction with cardiac arrhythmia due to or as a consequence of metastatic lung cancer and bilateral pulmonary emphysema. At the March 2013 hearing, the appellant, her daughter and her son testified that the Veteran had horrible sleeping habits and did not care about his health. His PTSD reportedly exacerbated his health problems. The Veteran's PTSD caused him to be highly stressed, tense and quick to anger. The appellant's overall contentions throughout this appeal indicate that the Veteran's PTSD hastened his death. Based on a review of the evidence and in affording the appellant the benefit-of-the-doubt, the Board finds that service connection for the cause of the Veteran's death is warranted. As discussed above, at the time of his death, service connection was in effect for PTSD, evaluated as 100 percent disabling since September 2000. The pertinent PTSD examinations reveal that the Veteran experienced symptomatology since 1953, showing that he had been experiencing continuous PTSD symptoms for over half a century prior to his death. Moreover, as evidenced by the 100 percent disability rating in effect for almost a decade prior to his death, the Veteran's PTSD was shown to be severe. The most recent PTSD examination of record in 2000 indicates that he had difficulty in caring for himself, consistent with the testimony presented at the March 2013 hearing. Furthermore, the January 2009 and February 2009 treatment records showing the Veteran to be disoriented as well as agitated are consistent with a 100 percent psychiatric disability rating. As discussed above, the March 2013 hearing testimony shows that the Veteran's PTSD exacerbated his health problems, caused him to be highly stressed and tense, and impacted his ability to care for himself. The appellant, her daughter and her son are competent to report noticing how severe the Veteran's PTSD symptomatology was prior to his death, as well as how it impacted his ability to care for himself. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the appellant's, her daughter's and her son's statements highly probative as to the affect the Veteran's service-connected PTSD had on his overall health and his ultimate demise. In this case, no medical professional has provided any evidence to indicate that the Veteran's PTSD did not adversely affect his health such that it contributed to his death. In other words, there is no evidence of record to contradict the appellant's competent and credible assertions that the Veteran's PTSD impaired his health, thereby contributing to his death. Considering the severity of the Veteran's PTSD, as evidenced by the 100 percent rating, in addition to the lay evidence indicating that the Veteran's PTSD adversely affected his overall health, the Board concludes that service connection for the cause of the Veteran's death is warranted. Accordingly, in considering the appellant's, her daughter's and her son's competent and credible lay statements, the certificate of death, as well as the pertinent medical evidence of record, and in affording the appellant the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD contributed to his death. The evidence is in favor of the grant of service connection for the cause of the Veteran's death. Service connection for the cause of the Veteran's death is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs