Citation Nr: 1415151 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 09-31 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from June 1965 through April 1969. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A timely appeal of that decision was perfected. In August 2012, the Board remanded this matter for further claims development, to include: obtaining additional evidence identified by the appellant; obtaining a VA examiner's opinion as to whether urinary complaints noted in March 2008 were related to the Veteran's service-connected prostatitis; obtaining a VA examiner's opinion as to whether it is at least as likely as not that the depression and anxiety diagnosed in March 2008 were caused or aggravated by his urinary complaints, whether the Veteran's death was etiologically related to his depression and anxiety, and whether the Veteran's depression and anxiety are etiologically related to his active duty service; and readjudicating the issue on appeal. The Board is satisfied that the directed development has been performed and is prepared to proceed with its de novo consideration of the issue on appeal. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for the Veteran for prostatitis; a scar on the right arm, which was residual from an in-service gunshot wound; and a scar on the upper right quadrant of the abdomen, which was residual from an in-service shell fragment wound. No additional claims were pending or unresolved at the time of the Veteran's death. 2. The Veteran died of a self-inflicted gunshot wound on April 4, 2008. 3. The Veteran did not have PTSD; however, did have depression and anxiety. 4. The Veteran's self-inflicted gunshot wound occurred as a result of depression and anxiety, which in turn, was aggravated by non-service-connected dysuria; however, the evidence does not show that the Veteran's dysuria was due to or a result of his service-connected disabilities or his active duty service, nor does it show that his depression and anxiety were due to or a result of his service-connected disabilities or his active duty service. CONCLUSION OF LAW The criteria for establishing service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, VCAA 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, a June 2008 letter purported to provide the appellant with the foregoing notice. In that regard, the letter provided notice regarding what information and evidence is needed to substantiate the appellant's claim for DIC benefits, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. However, the letter did not provide the appellant a listing of the disabilities for which service connection was in effect at the time of the Veteran's death. Thus, the June 2008 letter is deficient for purposes of providing the notice described above. Following the Board's remand, the Appeals Management Center issued an August 2012 letter to the appellant which sought to remedy the deficiency in the June 2008 letter. However, the letter incorrectly advised that service connection had not been established for any disabilities during the Veteran's life. In actuality, service connection had been in effect for the Veteran for prostatitis; a right arm scar that was residual from an in-service gunshot wound; and a right upper abdomen scar that was residual from an in-service shell fragment wound. Accordingly, neither the June 2008 letter nor the August 2012 letter properly discharges VA's duty to notify the appellant. Such notice error is presumed to be prejudicial, and it is VA's burden to rebut the presumption. Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007). The Board finds that the appellant has not been prejudiced by the notice error in this case given her specific contention that the Veteran's death resulted from PTSD. Here, the appellant had been advised of the disabilities for which service connection were in effect in the August 2009 Stattement of the Case, and the claim has since been readjudicated. Furthermore, the Veteran's accredited representative showed actual knowledge of the fact that service connection was in effect for these disabilities in an August 2012 statement. As actual knowledge was shown, VA's failure to identify the Veteran's service-connected disabilities in its June 2008 and August 2012 notice letters is not prejudicial to the appellant. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, VA treatment records, identified and relevant private treatment records, death certificate, and arguments expressed by the appellant in her claims submissions have been associated with the claims file. Claims file reviews and opinions as to the Veteran's cause of death were also obtained in December 2012. These opinions, along with the other evidence of record, are fully adequate for the purpose of determining the nature and origin of the causes of the Veteran's death. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis The appellant, who is the Veteran's widowed spouse, seeks death benefits. In support of her claim, she alleges in her claims submissions that the Veteran committed suicide was a result of posttraumatic stress disorder (PTSD) that had been misdiagnosed as depression and anxiety during the Veteran's lifetime. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. In order for the service-connected disability to be considered the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. In order 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 relationship. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In general, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for PTSD specifically requires medical evidence showing a diagnosis of that condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Concerning the showing of an in-service stressor, the evidence necessary to establish the occurrence of a stressor during service can vary, depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In instances such as this case, where the evidence establishes that the Veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the veteran's service), the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Subject to the foregoing, the Board notes that it is required to construe claims broadly, and in the context of a claim concerning psychiatric disorders, must consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under the holding in Clemons, a veteran cannot be held to a hypothesized diagnosis or one that he or she is incompetent to render when determining what his actual claim may be. Clemons, 23 Vet. App. 5. Further, the Board must consider alternative current conditions within the scope of the filed claim. Id. Here, although the appellant argues specifically that the Veteran's death was the result of claimed PTSD that was allegedly related to service, as discussed below, the evidence does show that the Veteran had been previously diagnosed with adjustment disorder and anxiety just prior to his death. Hence, despite the appellant's specific assertions regarding PTSD, VA is also bound to consider whether the Veteran's diagnosed adjustment disorder and anxiety were related to his active duty service, and if so, whether those disorders caused the Veteran's death. Id. 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 veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Here, a death certificate in the claims file reflects that the Veteran died of a self-inflicted gunshot wound to his chest on April 4, 2008, at the age of 61. According to the death certificate, an autopsy was performed; however, the autopsy report was not obtained. As the Board has acknowledged above, VA is under an obligation assist the appellant in obtaining relevant evidence. This duty assist includes obtaining an autopsy report. Daves v. Nicholson, 21 Vet. App. 46 (2007). However, given the obvious nature of the Veteran's recognized cause of death (self-inflicted gunshot wound to the chest) and the appellant's assertions (construed broadly that a psychiatric disorder allegedly related to service caused the Veteran to commit suicide), the physical findings from the autopsy are highly unlikely to be relevant to the issue on appeal. Accordingly, the Board is not obligated to obtain the autopsy report in this case. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying, in the context of outstanding social security records, that VA's duty to assist in obtaining evidence applies only to records relevant to the claim). At the time of the Veteran's death, service connection was in effect for the Veteran for prostatitis; a scar on the right arm, which was residual from an in-service gunshot wound; and a scar on the upper right quadrant of the abdomen, which was residual from an in-service shell fragment wound. As an initial matter, the appellant does not contend, and the evidence does not show, that the Veteran's death was related in any way to the service-connected scars on his right arm or abdomen. The service treatment records do not document any complaints of psychiatric symptoms, nor do they reflect any objective findings or diagnoses related to a psychiatric condition. In that regard, the Veteran repeatedly denied having any history of symptoms such as frequent trouble sleeping; frequent or terrifying nightmares; depression or excessive worry; loss of memory or amnesia; bed wetting; or nervous trouble of any sort, in Reports of Medical History completed prior to a period of active duty for training (ACDUTRA) in April 1964 and during his ordinary active duty service in June 1965 and February 1969. Indeed, periodic medical examinations performed during service in April 1964, August 1964, June 1965, February 1969, and March 1969 indicated normal psychiatric findings. Similarly, notes from treatment rendered during service make no mention of psychiatric symptoms, findings, or diagnoses. In short, the service treatment records do not show that the Veteran had any psychiatric problems during his active duty service. Indeed, post-service treatment records do not reflect any psychiatric complaints or findings until March 2008, at which time, the Veteran reported depression and anxiety to his private family physician, Dr. J.A.D. Later that month, he was seeking treatment for non-service-connected urinary problems at West Florida Hospital, and was undergoing a catheterization procedure, when he became agitated and expressed suicidal ideation. The Veteran was immediately admitted for inpatient psychiatric evaluation and observation. On admission, he reported that he had been followed recently by his private physician for anxiety and depression. He also stated that his anxiety had been increasing recently because of stress from his problems with urinary retention. He also reported having a history of malaise which was interpreted by hospital staff as being anhedonia. He also stated that he was sleeping more than usual and was experiencing decreased appetite, decreased concentration, and weight loss. A mental status examination performed at that time was grossly normal. During the examination, the Veteran denied having any current suicidal or homicidal ideation and stated that he was not serious about his suicidal statement and felt overwhelmed by the catheterization process. During subsequent hospitalization, the Veteran reported ongoing and intermittent anxiety, but continued to deny suicidal or homicidal ideation. At discharge, the Veteran was given a multi-axis diagnosis which included Axis I diagnoses of adjustment disorder with mixed features and anxiety disorder, not otherwise specified. Pursuant to the Board's August 2012 remand, the claims file was provided to a VA physician and VA psychiatrist for opinions as to whether the Veteran's cause of death was related in any way to his active duty service or to his service-connected prostatitis. In a December 2012 opinion, the VA physician opined that it is less likely than not that the Veteran's urinary complaints in March 2008 were related to his service-connected prostatitis, but rather, were likely related to age-related BPH and other medical issues. The physician opined further that the Veteran's prostatitis is less likely than not related to the Veteran's cause of death. As rationale, the VA physician observed that the treatment records from Dr. J.A.D., following the Veteran's March 2008 episode of dysuria and hospitalization, were silent for residual urinary or voiding complaints or diagnosis, which was consistent with resolution of acute urinary retention. The examiner noted further that acute urinary retention is a common urologic emergency that commonly affects men over age 60, and is often the result of benign prostatic hyperplasia. In a December 2012 opinion, the reviewing VA psychiatrist provided a series of opinions concerning the Veteran's cause of death. In the first place, she opined that the Veteran's death from a self-inflicted gunshot wound was not related to his active duty service. In that regard, she acknowledged that the Veteran's depression and anxiety were aggravated by his urinary complaints at that time; however, adopted the aforementioned VA physician's determination that the Veteran's urinary complaints were likely caused by age-related BPH, rather than the Veteran's service-connected prostatitis. Indeed, the Board notes that this opinion is consistent with treatment records from the Veteran's private urologist, Dr. D.H.P., who apparently followed the Veteran for dysuria, erectile dysfunction, prostatitis, hypogonadism, and elevated PSA since March 2005, but did not offer an opinion relating those symptoms to the Veteran's service-connected prostatitis or to his active duty service. The VA psychiatrist also stated that she was unable to opine, without resort to speculation, as to whether the Veteran's cause of death is etiologically related to his March 2008 diagnoses of depression and anxiety. In that regard the examiner noted that suicide may happen without depression or anxiety, and, the claims file does not provide enough information to resolve that issue. This question appears to be immaterial however, because the VA psychiatrist continues, by offering the opinion that the Veteran's depression and anxiety were not related to the Veteran's active duty service. As rationale, the examiner accurately noted that the claims file was silent for any complaints of symptoms related to depression or anxiety prior to 2008, which the examiner noted, is inconsistent with the Veteran having a psychiatric disorder attributable to his active duty service. Further, the VA psychiatrist concurred that there is no suggestion in the treatment records that any health care providers ever raised PTSD as a potential diagnosis, or that any of the Veteran's psychiatric symptoms were ever attributed directly to his active duty service. The Board is sympathetic to the appellant's sincere belief that the Veteran's tragic death was in some way related to a psychiatric disorder that, in turn, was related in some way to the Veteran's active duty service or service-connected prostatitis. Nonetheless, the Board must note that there is no indication in the record that she has received any medical training or has had medical experience sufficient to render a competent medical opinion on the matter. In this regard, the relationship between the Veteran's active duty service, service-connected prostatitis, his March 2008 urinary complaints, and any interplay that the Veteran's urinary problems may have had with the Veteran in producing anxiety or depression is clearly a matter that is not susceptible to being explained by mere observation, and thus, requires the informed opinion of an individual with medical expertise. For the same reason, the appellant is not competent to provide a psychiatric diagnosis of PTSD. Accordingly, the appellant's lay assertions do not constitute competent medical evidence as to the cause or origin of the Veteran's cause of death. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For the reasons set forth above, the Board affords the greatest probative weight to the December 2012 opinions rendered by the VA physician and VA psychiatrist; as these opinions are provided following a complete and accurate review of the claims file and are based upon a rationale that is consistent with the clinical evidence of record. Accordingly, the Board finds that the preponderance of the evidence in this case is against a finding that the Veteran's cause of death was related in any way to the Veteran's active duty service or to any of the Veteran's service-connected disabilities. Based upon the foregoing, the claim for service connection for the Veteran's cause of death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs