Citation Nr: 1321191 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 12-11 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date earlier than September 23, 2008, for service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1944 to July 1946. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board has reviewed the appellant's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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. Amyotrophic lateral sclerosis (ALS) is related to the Veteran's active service. 2. In June 1986, the Veteran died from complications of the ALS. 3. The appellant filed her claim of entitlement to service connection for cause of the Veteran's death on January [redacted], 2002. CONCLUSION OF LAW The criteria for an effective date of January [redacted], 2002, for a grant of service connection for cause of the Veteran's death are met. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.312, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq (West 200); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable to the appellant on the issue in appellate status and a decision at this point poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis In order to establish service connection on a direct or primary basis, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain disabilities, service-connection may be established on a presumptive basis. These presumptions provide additional bases for establishing service connection. They do not prevent a claimant from establishing service-connection on a direct or primary basis due to incurrence or aggravation in service. See 38 C.F.R. § 3.303(d) (2012). Organic diseases of the nervous system may be presumed to have been incurred during active military service if manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the cause of a veteran's death, the medical evidence must show that disability which was incurred in or aggravated by service either caused or contributed substantially or materially to cause death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). 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 issue involved will be determined by exercise 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. See 38 C.F.R. § 3.312(a) (2012). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. See 38 C.F.R. § 3.312(c)(1) (2012); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In order for service connection for the cause of a veteran's death to be granted, three elements must be present: (1) evidence of death; (2) evidence of in-service incurrence of disease or injury and/or service-connected disability; and (3) medical nexus evidence linking (1) and (2). Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). 38 C.F.R. § 3.318 pertains to presumptive service connection for amyotrophic lateral sclerosis. Specifically, 38 C.F.R. § 3.318 states that (a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease. (b) Service connection will not be established under this section: (1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; (2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or (3) If the veteran did not have active, continuous service of 90 days or more. 38 C.F.R. §§ 3.318 (2012). This regulation was effective September 23, 2008. See 73 Fed. Reg. 54691, 54693, Sept. 23, 2008. Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service caused death. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (West 2002). The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). More specifically, the effective date of an award of disability compensation for service-connected death after separation from service is the first day of the month in which the Veteran's death occurred if the claim is received within 1 year after the date of death; otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(c) (2012). The death certificate shows that the Veteran died in June 1986, at age 59. The immediate cause of death was aspiration pneumonia due to amyotrophic lateral sclerosis. There was no autopsy. However, there is no dispute as to the cause of death because medical evaluations prior to the Veteran's death well documented the disease and resulting debility. The appellant filed her claim of entitlement to service connection for the cause of the Veteran's death on January [redacted], 2002. This claim was subsequently granted in a December 2008 rating decision based on the presumptions found in 38 C.F.R. § 3.318. As a liberalizing regulation, benefits were effective as of the date the regulation became effective, which was the date it was published, September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2012). VA explained in the Federal Register that the presumption for ALS was based on statistical evidence showing that ALS occurred more frequently among veterans than among nonveterans. The reason for that difference was not clear, as were the causes of ALS. VA also provided some relevant information about the disease. ALS (also called Lou Gehrig's disease) is a neuromuscular disease that affects about 20,000 to 30,000 people of all races and ethnic backgrounds in the United States and is often relentlessly progressive and almost always fatal. ALS causes degeneration of nerve cells in the brain and spinal cord that leads to muscle weakness, muscle atrophy, and spontaneous muscle activity. People suffering from ALS eventually lose the ability to move their arms and legs and to speak and swallow. The median survival period for people with ALS is 3 years from the onset of symptoms, and most people with ALS die from respiratory failure within 5 years. 73 Federal Register 54,691 (Sept. 23, 2008). Pertinently, the Board notes that the presumption does not prohibit the establishment of service connection on a direct or primary basis by showing that the fatal disease was incurred or aggravated during the Veteran's active service. Thus, in considering the appellant's claim, the Board will consider whether the competent and probative evidence of record demonstrates that ALS is related to active service. As discussed above, in order for service connection for the cause of a veteran's death to be granted, three elements must be present: (1) evidence of death; (2) evidence of in-service incurrence of disease or injury and/or service-connected disability; and (3) nexus evidence linking (1) and (2). Cf. Hickson, supra. In this case, element (1) has obviously been met. With respect to element (2), the appellant contends that the Veteran's ALS manifested during his service or he had some type of exposure in service that resulted in ALS. The Board notes that the Veteran's personnel records confirm service in Alaska. However, his service treatment records are absent complaints of or treatment for ALS or symptoms associated therewith. With regard to element (3), nexus, in support of her claim, the appellant submitted a private medical opinion from J.E., D.O. dated April 2012. Dr. J.E. reported that he had treated the Veteran 30 years prior. Pertinently, he opined that it is more likely than not that the Veteran's ALS should be considered service related. The rationale for Dr. J.E.'s opinion was based on his review of medical literature pertaining to ALS, specifically noting the pattern of increased incidence of ALS in veterans. Although he did not know the precise factors causing the pattern, he indicated that the lack of information does not preclude the likelihood that there is exposure to a toxin. Indeed, Dr. J.E. reported that he did not know what the Veteran was exposed to during his military service; however, he also reported that observations of epidemiologic patterns often have led to research which subsequently have defined more precisely the relationship of environmental factors in illness. He therefore concluded, after reviewing the Veteran's military medical records, the medical records from his fatal illness, and ALS research, that it is more likely than not that the Veteran's ALS should be considered service related. In contrast to the opinion of Dr. J.E., a VA examiner concluded in a March 2012 opinion it is less likely than not that the Veteran's ALS was related to his military service. The examiner's rationale for his opinion was based on his finding that the cause of ALS is unknown. Furthermore, he reported that while a number of potential etiologies have been investigated, the only established risk factors for ALS to date are age and family history. There is no firm data linking the exposure of a patient to "toxins" and the subsequent development of ALS. While there are "geographic clusters" of ALS that have been reported, these were limited to the western Pacific area. Indeed, the examiner did not note any evidence of ALS clustering in Alaska. However, the examiner noted VA's determination that ALS is considered service connected for patients with 90 days or more of active service. The opinion of Dr. J.E. as well as the opinion of the VA examiner appear to have been based upon thorough and thoughtful analysis of the Veteran's entire medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Given both positive and negative nexus opinions of equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's fatal ALS was manifested during service. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). As such, element (3), and thereby all three elements, has been satisfied. Service connection is therefore warranted for the cause of the Veteran's death on a direct basis effective January [redacted], 2002, when the appellant filed her service connection claim. See 38 C.F.R. § 3.400 (2012) [The effective date of an award is generally the date of receipt of a claim or the date entitlement arose, whichever is later]. ORDER The effective date of January [redacted], 2002, for the grant of service connection for cause of the Veteran's death is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs