Citation Nr: 1322243 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-12 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant, B.D., and C.S. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from March 1954 to March 1956 and from October 1961 to August 1962. He died in April 2006; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The appellant testified at an August 2007 hearing before a Decision Review Officer (DRO) at the RO, at a December 2008 Travel Board hearing before a now retired Veterans Law Judge, and at a March 2013 Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of these hearings are associated with the claims file and have been reviewed. In an April 2009 decision, the Board granted entitlement to a non-service connected death pension, but denied entitlement to service connection for the cause of the Veteran's death. The appellant appealed the denial of benefits to the U.S. Court of Appeals for Veterans Claims (Court), which in July 2011, on the basis of a Joint Motion, vacated and remanded for further consideration the denial of service connection for the cause of death. The decision granting entitlement to a non-service connected death pension was left undisturbed, and the RO has implemented that decision. In January 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the appellant an opportunity to obtain a forensic accident reconstruction. The action specified in the January 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). As an additional matter, the Board notes that the issue of entitlement to benefits under 38 U.S.C.A. § 1151 has been raised by the record and adjudicated by the Agency of Original Jurisdiction (AOJ) in a March 2012 rating decision. The appellant has submitted a notice of disagreement with this decision; however, the RO has not yet issued a statement of the case. As the Board is granting entitlement to service connection for the cause of the Veteran's death, the Board finds that the issue of entitlement to death benefits under 38 U.S.C.A. § 1151 is moot and will not be further discussed. Finally, the Board notes that during this appeal, the Appellant has been represented by private counsel, who in a May 2013 letter indicated their intention to withdraw their representation at the request of the Appellant. Accordingly, the Appellant is currently without a designated representative. 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 Veteran died in April 2006. The death certificate lists the immediate cause of death as mechanical chest compression. 2. At the time of the Veteran's death, the Veteran was 100 percent service connected for bilateral hearing loss. 3. The preponderance of the evidence establishes that a service connected disability was either the principal or a contributory cause of the Veteran's death. CONCLUSION OF LAW The Veteran's death was caused or substantially or materially contributed to by a disability incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. 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. Indeed, the Federal Circuit has held that the Board must review the entire record, but 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 these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's electronic records on the "Virtual VA" system to insure a total review of the evidence. Service Connection for the Veteran's Cause of Death In April 2006, the Veteran was killed when working underneath a trailer replacing flooring. He had propped the tongue of the trailer on a chair, and it came off in some manner, landing on his chest and causing his death. The death certificate lists the immediate cause of death as mechanical chest compression and the manner of death as accidental. At the time of the Veteran's death, the Veteran was service connected for bilateral hearing loss, which was assigned a total (100 percent) disability rating. The appellant contends that but for the Veteran's service connected hearing loss, he would not have been crushed to death. Specifically, she contends that the Veteran would have heard the trailer tongue slipping from the metal chair and quickly removed himself from beneath the trailer and avoided the accident, or at least moved enough to avoid his fatal injury. She has noted that the Veteran had been advised not to wear his hearing aids when he was working outside as he perspired heavily, which would cause his hearing aids to short out. These contentions have been repeatedly offered by the appellant and her neighbors, including through personal statements and testimony, which the Board has thoroughly reviewed. To establish service connection for the cause of the Veteran's death, the evidence must show that the fatal disease was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause 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. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2012). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of death. Generally, a service- connected disability, particularly one not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c). Service connection for the cause of a veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. In support of the Veteran's claim, a VA staff physician who treated the Veteran, Dr. H.R. indicated in an April 2007 administrative note that the Veteran's hearing loss was "profound" and suggested that the Veteran's service connected disability contributed in some way to his death. He explained that he was merely offering his own medical opinion, which was not binding on VA regarding any disability compensation claim. In May 2007, a VA examiner was asked to determine whether the Veteran's hearing loss had caused or contributed to his death. After reviewing the claims folder, the examiner opined that the Veteran would have not likely have heard the trailer falling even with his hearing aids in, given his profound sensorineural hearing loss. He further opined that it was "very questionable" whether the Veteran would have been able to get out of the way in time even if he did hear it. However, he ultimately concluded that there was insufficient evidence of record on which to form a final opinion. He stated that in the absence of a finding by a forensic expert as to "how quickly the accident occurred (how long it took for the trailer to slip)" no one could provide the requested opinion without resorting to speculation. The Board does not question that the Veteran was profoundly deaf at the time of his death. As the May 2007 VA examiner points out, it is medically "very questionable" given the Veteran's profound hearing loss disability that he would have heard the trailer falling, regardless of whether he was wearing his hearing aids or not. The Board agrees with the examiner's opinion that the crux of the matter is whether, if the Veteran had been able to hear the trailer fall or shift, he would have had sufficient time to get out of the way and avoid injury and death. This is not a medical question. In this regard, the Board observes that there is no first-hand-knowledge of the accident. No one else was present to observe the accident or for sometime thereafter. A neighbor of the Veteran, Mr. C.S., submitted a written statement and testified regarding his attempts to re-enact the accident. He related that he propped the trailer hitch on a metal folding chair and attempted to loosen the bolts under the trailer. He noted that the bolts were very rusty and could not be loosened. He stated that it only took him about three pulls on the wrench before the trailer slipped from the chair. He determined that the trailer must have made some noise in scraping over the chair used to support it, and hence the Veteran would have had some warning of the impending fall. However, Mr. C.S. does not report any training, experience, or expertise in accident reconstruction or any forensic or scientific training. Furthermore, he conceded that he could not determine exactly what the Veteran was doing at the time of the accident. Accordingly, Mr. C.S.'s opinion has limited probative value. However, the appellant also contracted Mr. J.A., a mechanical engineer, to reconstruct the accident. An account of this reconstruction is detailed in Mr. J.A.'s March 2012 report and a June 2012 addendum. He also took numerous photographs of the reconstructed accident scene, which are of record. Mr. J.A. used the same metal folding chair as the Veteran used to support the tongue of the trailer while he worked underneath it. This chair was identified by a neighbor, Mr. B.D., as the chair used by the Veteran. An adjustable wrench was identified by the appellant and Mr. B.D. as the only tool found on the scene. The Board notes that there is no reason to conclude that the accounts of these eyewitnesses are not credible regarding the items found at the scene of the accident. Mr. J.A., with the assistance of Mr. C.S., then attempted to recreate the actions of the Veteran on the day he died by attempting to remove the wooden panels attached the underside of the trailer. Mr. J.A. reported that Because the nut was located inside an upper flange of the steel channel frame, the amount of angular movement of the wrench was very limited. We were able to demonstrate that the force required to loosen the nut (rusted) was the cause of the tongue to be gradually shifted off the metal chair. We also witnessed the metal to metal scraping sound of the tongue being forced off of the chair. This sound had to be repeated several times due to the limited (angular) travel of the wrench in a very limited space inside the steel channel. I estimate that it took 3 to 4 movements of the tongue to reach the edge of the chair and fall off. Certainly a person with normal hearing would have been alerted to the impending danger and stop the operation and get out from under the trailer. He estimated that it would take approximately fifteen seconds for an individual to get out from under the trailer due to the limited clearance between the trailer bed and the ground. Mr. J.A. also noted that he has impaired hearing which requires the use of hearing aids and the metal scraping sound as the tongue was pulled across the metal folding chair was loud enough that he was able to hear it. In Mr. J.A.'s opinion, had the Veteran been able to hear properly, the accident would have been avoidable. It appears from the available evidence that Mr. J.A. was diligent and thorough in attempting to accurately recreate the conditions that existed on the day of the Veteran's fatal accident, and his training in mechanical engineering makes him qualified for such a task. As no one actually witnessed the Veteran's death, exactly what happened that day can never be known. Nevertheless, the scenario presented by Mr. J.A. of how the Veteran's accident occurred is plausible, and the Board accepts it as the most likely explanation of events. In this scenario, the tongue of the trailer was incrementally dragged off of the chair supporting it, with each movement creating a distinct scraping sound that would have been noticeable to an individual with normal hearing, warning them that something was wrong and giving them time to get out from under the trailer. Unfortunately, the Veteran's hearing was anything but normal. Indeed, the available evidence suggests that even if the Veteran had been wearing his hearing aids, his hearing was so impaired that he would have been unable to hear the sound of the trailer tongue sliding off of the chair. Since but for his service connected bilateral hearing loss disability, the Veteran would likely have been able to avoid the accident that claimed his life, the Board finds that the Veteran's service connected disability substantially and materially contributed to his death. Accordingly, the appellant is granted entitlement to service connection for the cause of the Veteran's death. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs