Citation Nr: 1320107 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-27 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Walter J. McLeod, Esquire ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1950 to July 1952 and he received the Bronze Star Medal. He died in January 2006 and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant submitted additional evidence in April 2013, consisting of a medical opinion from a private doctor. There was no waiver of RO jurisdiction submitted by the appellant. Generally, the Board would remand the case to the RO to consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2012). However, in light of the favorable decision in this appeal, there is no prejudice to the appellant and a remand for the RO's initial consideration of this evidence is not required. Id. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The claim for service connection for the cause of the Veteran's death was initially denied in an unappealed April 2006 rating decision. The appellant later attempted to reopen the claim and was denied in December 2007 and January 2012 rating decisions. 2. The evidence received since the December 2007 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. The Veteran died in January 2006. The Veteran's death certificate lists the immediate cause of death as cardiopulmonary arrest due to cardiogenic shock, acute myocardial infarction, and coronary artery disease. 4. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD) at 70 percent disabling and a total disability rating based on individual unemployability became effective on March 3, 2000. 5. There has been a demonstration by competent medical evidence of record that the Veteran's service-connected PTSD was a contributory cause of the Veteran's death. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Resolving all reasonable doubt in the appellant's favor, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) ); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. II. New and Material Evidence The appellant's claim for entitlement to service connection for the cause of the Veteran's death was initially denied in an April 2006 rating decision. The RO found that although during the Veteran's lifetime service connection was established for PTSD evaluated at 70 percent disabling, there was no evidence showing a nexus between the Veteran's cause of death and his PTSD. See Rating Decision, April 2006. The appellant was provided notice of that decision and her appellate rights in April 2006. She did not appeal the April 2006 denial of the claim and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The appellant later attempted to reopen the claim. The RO declined to reopen the claim in December 2007 and January 2012 rating decisions. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence of record as of the December 2007 RO rating decision consisted of the Veteran's service treatment records, the death certificate and various medical records from the Integris Southwest Medical Center, OU Physicians Family Medicine, The D. A. McGee Eye Institute. Evidence received since the December 2007 rating decision includes nexus opinions from a VA physician and a private medical doctor. In June 2012, a VA examiner opined that the Veteran's coronary artery disease was less likely than not proximately due to or the result of the Veteran's service-connected PTSD. Conversely, in April 2013, a private doctor opined that the Veteran's PTSD more likely than not contributed substantially to his death, which was caused by his development of atherosclerosis and subsequent coronary disease. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Thus, the June 2012 and April 2013 medical opinions are presumed credible. Additionally, the April 2013 private medical opinion tends to establish a nexus between the Veteran's cause of death and his service-connected PTSD. As such, the April 2013 medical opinion relates to an unestablished fact that is necessary to substantiate the appellant's claim for service connection for the cause of the Veteran's death. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that the language of 38 C.F.R. § 3.156(a) ". . . suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering other evidence of record, raises a reasonable possibility of substantiating the claim."). Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for the cause of the Veteran's death has been received, and the claim is reopened. III. Service Connection for Cause of Death The RO did not reopen and address the appellant's claim on the merits. Given the favorable outcome of the case, the Board concludes that no prejudice results to the appellant. See Hickson v. Shinseki, 23 Vet. App. 394 (2010); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The death of a Veteran will be service connected if a service-connected disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the 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). 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of 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, the extensive evidence of record. While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant seeks entitlement to service connection for the cause of the Veteran's death. The Veteran died in January 2006. The death certificate, which was signed by a physician, lists the immediate cause of death as cardiopulmonary arrest due to cardiogenic shock, acute myocardial infarction, and coronary artery disease. At the time of the Veteran's death, service connection was in effect for PTSD, evaluated as 70 percent disabling and TDIU was effective from March 2000. The appellant asserts that the cause of the Veteran's death is related to his service-connected PTSD. See Statement in Support of Claim, July 2007. In June 2012, after reviewing the record, a VA staff physician opined that the Veteran's coronary artery disease was less likely than not proximately due to or the result of the Veteran's service connected PTSD. The conclusory rationale stated that there is not clear medical evidence supporting PTSD as a cause of coronary artery disease. This medical opinion is of limited probative value as the examiner failed to provide any supporting facts or data to explain the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). In April 2013, the appellant submitted a medical opinion from Dr. W. L. S, a private physician whose curriculum vitae shows that he is Board certified in internal medicine and cardiovascular disease. Dr. S. reviewed the record and summarized the Veteran's history of PTSD, development of atherosclerosis and subsequent coronary disease resulting in his death. He stated that PTSD elevates circulating catecholamines, which are significant risk factors for cardiovascular disease. The doctor opined that there is little doubt that the persistent destructive consequences of PTSD neuro-hormonally on the Veteran contributed significantly to his development of atherosclerosis and coronary disease. Therefore, Dr. S. opined that the Veteran's PTSD more likely than not contributed substantially to his death from coronary disease. This medical opinion was rendered following review of the complete claims file and contains clear conclusions with supporting data and reasoned medical explanations. This medical opinion is therefore entitled to significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 300-01. After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert, 1 Vet. App. at 50. Service connection for the cause of death of the Veteran will therefore be granted. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs