Citation Nr: 1513105	
Decision Date: 03/26/15    Archive Date: 04/03/15

DOCKET NO.  10-43 490	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Pension Management Center In St. Paul, Minnesota


THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death.


ATTORNEY FOR THE BOARD

S. Becker, Counsel







INTRODUCTION

The Veteran served on active duty from September 1944 to December 1945.  He died in October 1987.  The appellant is his surviving spouse.  This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  In September 2011, March 2013, and June 2014, the Board remanded this matter for further development.  Adjudication may proceed at this time.  Please note that this matter has been advanced on the Board's docket.  38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2014).  

FINDING OF FACT

The Veteran had no service-connected disabilities during his lifetime, and no heart problems causing his death were related to a psychiatric disability which in turn was related to his service so as to be service-connectable.

CONCLUSION OF LAW

The criteria for establishing DIC benefits based on service connection for the cause of the Veteran's death are not met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1153, 1154, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312, 3.384, 4.125 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist the Appellant

VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159.  Notice must be provided prior to the initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For a DIC benefits claim, the disabilities for which the Veteran was service-connected at the time of his death must be identified and necessary substantiating evidence for both a service-connected and a disability that was not service-connected must be addressed.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).  Notice of how disability ratings and effective dates are assigned, if applicable, must be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The appellant has not alleged any detriment with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  A May 2010 letter indicated that the Veteran was not service-connected for any disability during his lifetime.  It also provided information on the criteria for establishing DIC benefits based on a service-connected disability and a disability not service-connected, the evidence required to do so, the appellant's and VA's duties for obtaining evidence, and how VA assigns effective dates (disability ratings are not applicable to DIC benefits claims).  Though the letter was after instead of before the December 2009 rating decision, this timing error was cured.  There indeed was later readjudication via an August 2010 statement of the case and the January 2013 and January 2015 supplemental statements of the case (SSOCs).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes aiding in the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  VA also is required to aid in the procurement of other evidence, to include a medical examination and/or a medical opinion when necessary.  38 U.S.C.A. § 5103A(a).  The criteria for when such is necessary for a disability compensation claim (set forth in 38 U.S.C.A. § 5103A(d), 38 C.F.R. § 3.159(c)(4), and McLendon v. Nicholson, 20 Vet. App. 79 (2006)) do not apply to DIC benefits claims, however.  Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008).  

Unfortunately, the claims files and thus records concerning this Veteran and another Veteran of a very similar name were commingled.  They now have been separated in compliance with the Board's September 2011 and March 2013 remands.  No service treatment or personnel records for this Veteran have been obtained by VA.  They formally were found unavailable in February 2014, after receipt of information that they were destroyed in a fire at the National Personnel Records Center.  While references were made early during the pendency of this matter to a February 1946 service treatment record, it concerned the other Veteran and not this Veteran.  It indeed is notable that this Veteran separated from service, according to a DD214 submitted by the appellant, a few months prior to the date on that service treatment record.  The appellant disputes this, referencing another DD214 inclusive of that date.  However, this DD214 is for the other Veteran.

No VA treatment records or private treatment records have been obtained by VA-largely due to the appellant being unable to identify any of the Veteran's care providers.  She is responsible for doing so, as such information is not within VA's purview.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  She repeatedly has indicated submitting all pertinent records in her possession.  As directed in the Board's June 2014 remand, records from the facility where the Veteran died were requested.  Incomplete information necessary to make a fruitful request, however, resulted in the facility's inability to comply with the request.  The appellant repeatedly was informed that, despite the request made on her behalf, it ultimately was her responsibility to ensure the records were obtained.  They were not submitted by her.

The appellant did resubmit various medical articles referenced in her statements, however.  This was in compliance with the Board's June 2014 remand.  Finally, no medical examination has been conducted or medical opinion rendered.  The only examinations possible generally are autopsies, since death has occurred.  No autopsy was performed in 1987 when the Veteran died per his certificate of death, however.  An autopsy further most likely would not have been helpful since this matter revolves around his psychiatric state.  Exhumation for examination now is not possible since he was cremated.  The rendering of a medical opinion, though generally possible, is not necessary.  An opinion would not be fully informed, since the only evidence available is the Veteran's certificate of death, statements from the appellant and her son, and the aforementioned medical articles.  The opinion thus would almost certainly be speculative.  It would not be helpful, in other words.

Significantly, the appellant has not identified any additional development necessary for adjudication that has not been completed.  The record also does not indicate any such development.  No further notice or assistance accordingly is needed.  VA's duties to notify and to assist have been satisfied, in other words.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183.  There also has been at least substantial compliance with the Board's remand, as is required.  Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998).  The only noncompliance, failure to readjudicate via a SSOC after the March 2013 Board remand, was cured by issuance of the January 2015 SSOC.  Adjudication, in sum, may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  DIC Benefits Based on Service Connection
for the Cause of the Veteran's Death

When a veteran dies after December 31, 1956, from a service-connected or service-connectable disability, VA shall pay DIC benefits to the surviving spouse.  38 U.S.C.A. § 1310.  A veteran's death is due to such a disability when it was either the principal or a contributory cause of death.  38 C.F.R. § 3.312.  It is the principal cause of death when it, singly or jointly with some other disability, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).  It is a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c)(1).  Casually sharing in causing death is not sufficient, as a causal connection is required.  Id.

Service connection means that the facts, shown by the evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish direct service connection, there must be a current disability, the incurrence or aggravation of an injury or disease during service, and a nexus between them.  Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007).  Direct service connection also may be established for any disease diagnosed after service if it was incurred during service.  38 C.F.R. § 3.303(d).  

For chronic diseases, service connection may be established if there was manifestation during and after service absent an intercurrent cause.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Continuity of symptomatology after service is required if the disease was noted but not chronic or chronicity was questionable during service.  Id.; Savage v. Gober, 10 Vet. App. 488 (1997).  A rebuttable presumption of service connection exists for chronic diseases when a Veteran served for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within the first year after service.  38 U.S.C.A. §§ 1112, 1113, 1153; 38 C.F.R. §§ 3.307, 3.309.  

Secondary service connection means that a nonservice-connected disability was incurred because of or aggravated by a service-connected disability.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Aggravation means a permanent worsening beyond natural progression.  Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991).  The baseline level of the nonservice-connected disability pre-aggravation thus must be compared to the current level post-aggravation.  38 C.F.R. § 3.310(b).  Compensation may be paid only for the amount attributable to aggravation.  Id.; Allen, 7 Vet. App. at 439.

Only the most salient evidence must be discussed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  Persuasive or unpersuasive evidence must be identified, and reasons must be provided for rejecting favorable evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Both medical and lay evidence may be discounted in light of its inherent characteristics and relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

There is a heightened obligation to explain all findings and conclusions as well as to consider the benefit of the doubt when records are lost or destroyed while in the possession of the government.  Ussery v. Brown, 8 Vet. App. 64 (1995); Cuevas v. Principi, 3 Vet. App. 542 (1992); Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  The criteria for establishing the benefit(s) sought are not lowered, however.  Russo v. Brown, 9 Vet. App. 46 (1996).  The appellant thus still bears the burden of showing that a service-connected or service-connectable disability caused the Veteran's death notwithstanding that his service treatment and personnel records are unavailable because they were destroyed while housed at a government facility. 

Per his certificate of death, the Veteran he died in October 1987 at the age of 69.  The immediate cause was cardiogenic shock, which was due to or as a consequence of ventricular tachycardia.  This in turn was due to or as a consequence of arteriosclerotic cardiovascular disease (ASCVD) with old anterior myocardial infarction.  The principal cause of death was heart problems, in other words.  It is reiterated that the Veteran was not service-connected for any heart problem, or indeed for anything, during his lifetime.  This matter therefore turns on whether or not a heart problem or heart problems could have been service-connected.  The appellant contends only that the Veteran was in combat during service, that he had posttraumatic stress disorder (PTSD) or some other psychiatric disorder as a result, and that this disorder however diagnosed was a contributory cause of his death in that it either resulted in or aggravated his heart problems.

Service connection can be granted only if there is a current disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  A disability is current if it is present near or at the time a claim is filed or at any time during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007).  In the context of a DIC benefits claim, however, a disability need not be current.  It necessarily must be one present during a Veteran's life.  His certificate of death makes no mention of PTSD or any other psychiatric disorder.  No VA or private treatment records are available, as discussed above.  Even if any such records were available, they might not concern the Veteran's psychiatric state.  The appellant indeed has indicated that he never sought psychiatric treatment.  In sum, there is no medical evidence confirming a psychiatric disability during his lifetime.

Lacking medical evidence, the only indication of a psychiatric disability during the Veteran's lifetime is from the appellant and E.L., the appellant's son.  There is no indication that either has a medical background.  The appellant and E.L. thus are lay persons.  Their statements, which recount the Veteran's many psychiatric symptoms to include sleep problems, mood disturbances, depression, withdrawal, alcohol abuse, and heavy smoking, thus constitute lay evidence.  The appellant and E.L. are competent to make these statements, as they would have been capable of observing such symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of competent lay evidence is gauged by factors such as bias, interest, inconsistency, implausibility, bad character, and a desire for monetary gain.  Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  

None of these factors is significant.  It is certainly plausible that the Veteran experienced psychiatric symptoms.  The Veteran served during World War II.  See 38 U.S.C.A. § 101(8); 38 C.F.R. § 3.2(d) (defining World War II service as the period from December 7, 1941, through December 31, 1946).  Thus, it is possible as discussed below that he was subjected to psychiatric injury through combat as the appellant contends.  The statements of the appellant and E.L. are consistent with one another.  There can be no inconsistency with the medical evidence since there essentially is no such evidence.  Finally, nothing suggests bad character on the part of the appellant or E.L.  Their statements recounting the Veteran's psychiatric symptoms accordingly are credible as well as competent.  

Sometimes, evidence from a lay person can establish a disability.  This includes when that person is competent to identify the disability or is describing symptoms that support a contemporaneous or later medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Here, the evidence from the appellant and E.L. does not establish a psychiatric disability.  It is reiterated that there is no medical diagnosis.  Flat feet, certain skin ailments, tinnitus, and varicose veins are disabilities which a lay person is competent to identify.  Jandreau, 492 F.3d at 1372; Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995).  Psychiatric disorders, in contrast to these simple and readily observable disabilities, are not subject to competent identification by a lay person.  This is why service connection claims for a psychiatric disorder are construed liberally.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Diagnosis indeed must be pursuant to the Diagnostic and Statistical Manual of Mental Disorders for VA purposes.  38 C.F.R. § 4.125(a).

Psychosis is the only chronic disease affecting the mind rather than the body.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  Psychosis includes brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance- or medication-induced psychotic disorder.  38 C.F.R. §§ 3.384.  That it has not been established that the Veteran had any psychiatric disability at all is reiterated.  As such, it has not been established that he had a psychosis.  Service connection for a chronic disease thus cannot be presumed.  Absent a chronic disease, service connection cannot be premised on chronicity or continuity of symptomatology.  Onset and persistence of relevant symptoms and of the disability itself still must be taken into account as they relate to direct service connection, however.

Since there are no service treatment or personnel records, the only evidence regarding the Veteran's service is from the appellant and E.L.  However, the Veteran and the appellant married in 1977.  It is unknown how long they were acquainted before this marriage.  However, the appellant admits that she did not know the Veteran during his service.  It follows that neither did E.L.  Their lay evidence therefore consists of them recounting what the Veteran told them.  Two incidents were noted in particular.  In the first, the ship carrying the Veteran to war was hit by a torpedo.  In the second, the Veteran's best friend was shot in the head and died in the Veteran's arms.  It, in sum, is contended that he engaged in combat.  Both the appellant and E.L. are competent to recount the Veteran telling them of these incidents because such would have been experienced by them.  Layno, 6 Vet. App. at 465.  They also are credible to recount that the Veteran told them of these incidents.  Like above, none of the factors for gauging credibility are significant.

While the appellant and E.L. may be competent and credible to recount what the Veteran told them regarding his service, this does not automatically mean that the Veteran was competent and credible himself.  The Veteran obviously was competent, as he personally experienced his service.  Whether or not he was credible cannot be assessed, as too many of the factors for gauging credibility are unknowns.  He shall be presumed credible for the sake of argument.  This means that his engaging in combat shall be presumed for the sake of argument.  Satisfactory lay evidence that an injury was incurred in combat will be accepted if consistent with the circumstances, conditions, or hardships of combat service even if there is no official record of the injury.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  Here, the lay evidence is satisfactory so psychiatric injury from the aforementioned presumed combat incidents is accepted. 

The appellant and E.L. clearly believe the Veteran suffered from psychiatric symptoms continuously since his service even though there is no supporting evidence.  They believe there is a nexus between an assumed psychiatric disability characterized by these symptoms and the combat incidents it is presumed he experienced during service, in other words.  Lay evidence sometimes can confirm the presence or absence of a nexus.  Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372.  However, whether or not there is a nexus here is a medical question.  It is reiterated that psychiatric disorders are complex in their own right.  Further, there may be psychiatric injury due to incidents during service as well as incidents that occurred before or after service.  Only those with a medical background are competent to answer a medical question.  Jones v. West, 12 Vet. App. 460 (1999).  The appellant and E.I. thus are not competent when it comes to nexus.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372.

The only medical evidence concerning nexus are the medical articles submitted by the appellant.  Two of these articles discuss depression as a risk factor for heart problems, while a third discusses PTSD as a risk factor for heart problems.  They do not concern a nexus between an assumed psychiatric disability manifested by the Veteran during his lifetime and his service, in other words.  Even presuming this nexus, they do not establish a nexus between an assumed psychiatric disability and the heart problems leading to the Veteran's death.  A medical article "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality."  Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Mattern v. West, 12 Vet. App. 222 (1999).  Like most medical articles, the aforementioned are general in nature in that they do not address the Veteran and his specific circumstances.  They were not used in support of a medical opinion since no such opinion has been rendered.  

In sum, the criteria for establishing direct or presumptive service connection for any psychiatric disability have not been met.  It has not been shown that the Veteran had such a disability during his lifetime even though he had psychiatric symptoms.  Even presuming he did have a psychiatric disability during his lifetime and that he engaged in combat during service, it has not been shown that there is a nexus between them.  Almost no medical evidence is available in these regards, and the lay evidence from the appellant and E.L. that is available in these regards is not persuasive because it is not competent.  Since the evidence is not in approximate balance but rather preponderates against service connection for a psychiatric disability, there is no benefit of the doubt to afford to the appellant.  It follows that secondary service connection for the heart problems leading to the Veteran's death, whether based on the theory that they were caused by or aggravated by a psychiatric disability, cannot be established.  DIC benefits based on service connection for the cause of the Veteran's death are denied.


ORDER

DIC benefits based on service connection for the cause of the Veteran's death are denied.  


____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs