Citation Nr: 1323916 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 08-16 343A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from September 1942 to September 1945. The Veteran is deceased, and the appellant is his surviving spouse. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2009, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In a July 2010 decision, the Board denied the appellant's claim. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2013 Order, the Court granted a Joint Motion filed by representatives of both parties, vacating the Board's July 2010 decision, and remanding the matter to the Board for compliance with the instructions in the Joint Motion. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the April 2013 Joint Motion, the parties agreed that a remand was required because the Board did not adequately consider the appellant's lay testimony. Specifically, they agreed that the Board failed to discuss the appellant's testimony in March 2009 regarding the continuity of the Veteran's lung related conditions, specifically the on-going nature of his pneumonia, bronchitis, and congestive heart failure, based upon her 50 plus years of observation during her relationship with the Veteran. Further, the Board failed to address the credibility of the appellant's statement or determine whether such testimony was sufficient to link the Veteran's death with his service-connected chest gunshot wound. In this case, the Veteran died in April 2007. The original death certificate lists the principal cause of death end as stage Parkinson's disease. An amended death certificate lists the immediate cause of death as aspiration pneumonia due to (or as a consequence of) dysphagia due to (or as a consequence of) advanced Parkinson's disease. The explanation provided for the amendment in an affidavit was that the Veteran had advance Parkinson's disease with severely limited activities and ability to swallow. He could not handle his secretions due to severe disease, developed pneumonia and expired. At the time of his death, the Veteran was service-connected for residuals of gunshot wound right chest with fracture deformity of the 6th and 7th ribs, right two deep scars of the skin with underlying tissue with pleural thickening and deformity of right dome of diaphragm with retained minute foreign particles of the soft tissue of the axilla, rated as 40 percent disabling and for psychoneurosis, psychosomatic reaction, rated as 10 percent disabling. The combined service-connected disabilities were considered to be 50 percent disabling. At the March 2009 hearing, the appellant submitted an undated letter from Dr. C.D., D.O., who stated that he had first treated the Veteran in December 2001 for "multiple medical problems including chronic obstructive pulmonary disease [COPD] . . ." Dr. C.D. further stated that the death certificate does not include the diagnosis of COPD "which was also a contributing factor in [the Veteran's] decline." In an April 2010 medical opinion report, a VA physician stated that she had reviewed the Veteran's VA claims folder, including Dr. C.D.'s opinion. After reviewing the medical evidence and listing the relevant evidence, the examiner found that it was less likely as not (less than 50/50 probability) that the Veteran's service-connected gunshot wound residuals were a cause of the Veteran's death. She explained that the Veteran had progressive severe Parkinson's disease and died as a result of associated complications. Although the medical evidence showed that the Veteran also had COPD, the examiner stated that the residuals of his service-connected gunshot wound "would be restrictive in nature" and not obstructive. She concluded that "not only was there no association between his GSW (gunshot wound) and his cause of death," there was no association between his service-connected gunshot wound residuals and his COPD disorder. The appellant asserts that that the Veteran's service-connected disabilities were principal or contributory causes of his death. In this regard, she contends that the Veteran had a respiratory disability from his combat wound and that the on-going nature of his shortness of breath, pneumonia, and bronchitis resulting from his combat wound could only have a negative effect on any subsequent COPD or other breathing problems. Specifically, with the immediate cause of death being pneumonia already existing, service connected disabilities resulting in breathing and swallowing difficulties become important. Further, the appellant's representative asserts that the Veteran's service-connected psychoneurosis is in fact the current disability of posttraumatic stress disorder which, based on medical treatise from the VA, is known to be linked to dementia and thus aggravated the Veteran's Parkinson's. In addition, they assert that there is a link between PTSD and smoking and that according to the VA, PTSD is directly linked to lung disease at least through aggravation. Also, they reference VA studies, noted that three are common biochemical changes between PTSD and Parkinson's and that the Veteran's PTSD medications also could have been an aggravating factor. The appellant's representative has submitted copies of studies referenced in their July 2013 brief. For a service-connected disability to be considered the principal or primary cause of death, it must be 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; or 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). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In light of the above, the Board finds that a remand is warranted to obtain an additional VA medical opinion to determine whether the Veteran did have a respiratory disorder related to service or a service connected disability, and if so whether aspiration pneumonia, dysphagia, or advanced Parkinson's disease was the result of such respiratory disorder. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that in the context of a claim for DIC benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). In this case, the notification provided to the appellant did not include a statement of the conditions for which the Veteran was service connected at the time of his death. On remand, the appellant should be provided proper notice as is required by the VCAA and described in Hupp. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the appellant notice consistent with Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). 2. Thereafter, the RO should obtain a medical opinion, from a physician with the appropriate expertise, addressing the appellant's specific contentions, as noted above. The claim's file should be forwarded to the physician and the physician should indicate that the claim's file has been reviewed prior to providing the requested opinion. The VA physician should be provided with a list of the Veteran's service-connected disabilities. The examiner should determine whether the Veteran had a respiratory disorder related to his service or his service-connected disabilities, and if so, whether such respiratory disorder substantially or materially contributing factors to the Veteran's death from aspiration pneumonia due to (or as a consequence of) dysphagia due to (or as a consequence of) advanced Parkinson's disease (i.e. contributed so substantially or materially to death, that it combined to cause death, or aided or lent assistance to the production of death). The examiner should also render an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater degree of probability) there is a causal relationship between the Veteran's service-connected disabilities, that is, gunshot wound to the right chest and psychoneurosis, and the primary cause of death from aspiration pneumonia due to (or as a consequence of) dysphagia due to (or as a consequence of) advanced Parkinson's disease (as listed on the amended death certificate) that led to the Veteran's demise. In other words, were any of the Veteran's service-connected disabilities substantially or materially contributing factors to the Veteran's death from aspiration pneumonia due to (or as a consequence of) dysphagia due to (or as a consequence of) advanced Parkinson's disease (i.e. contributed so substantially or materially to death, that it combined to cause death, or aided or lent assistance to the production of death). In providing these opinions, the examiner is requested to comment on the April 2010 VA physician's findings and opinion, the private opinion from Dr. C.D., and the appellant's contentions as discussed above as well as the contentions of her representative in the July 2013 brief presentation. The examiner should provide a complete rationale for any opinions expressed. If any of the foregoing questions cannot be answered without resorting to speculation, the examiner should so state and explain why. 3. Ensure that the examination report complies with (and answers the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Thereafter, readjudicate the claim for service connection for the cause of the Veteran's death. If the decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ FRANK J. FLOWERS 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).