Citation Nr: 1537104 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 13-28 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and her son, J.W. ATTORNEY FOR THE BOARD Amanda Radke, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran, who had active service from November 1965 to August 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) out of Nashville, Tennessee April 2012 rating decision denying service connection for cause of death. Previously, service connection for cause of death had been denied in several rating decision. The appellant appeared at a videoconference hearing before the undersigned Veterans Law Judge in May 2015. A transcript is of record. Additional evidence was received from the appellant since the August 2013 statement of the case, which was not accompanied by a waiver of the appellant's right to initial agency of original jurisdiction (AOJ) consideration. 38 C.F.R. §§ 19.9, 20.1304(c) (2015). However, as discussed below, the Board is granting service connection for cause of death, constituting a full grant of the benefit sought on appeal, and there is no prejudice to the appellant in proceeding with appellate review without AOJ consideration of this evidence in the first instance. FINDINGS OF FACT 1. The Veteran died in September 1990 of respiratory failure, renal failure, diabetes mellitus, and malnutrition. He is survived by his spouse, the appellant. 2. In an unappealed April 2005 rating decision, the RO denied service connection for cause of death on the basis that the Veteran had diabetes mellitus, type I, which is not a presumptive disability based on herbicide exposure, and it did not manifest to a degree of 10 percent disabling within one year of service separation. 3. Evidence received since the April 2005 rating decision is new and material as it triggers VA's duty to assist to obtain service treatment records. 4. The Veteran had a diagnosis of diabetes mellitus, type I, and symptoms were onset to a degree of 10 percent disabling within one year of service. CONCLUSIONS OF LAW 1. The April 2005 rating decision denying service connection for cause of death is final. See 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. The criteria for reopening the claim for service connection for cause of death have been met. See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for cause of death have been met. See 38 U.S.C.A. §§ 1110, 1111, 1310, 5103(a), 5103A(a) (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312, 20.1106 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). In the present case, the Board is reopening and granting service connection for the cause of the Veteran's death. This decision constitutes a full grant of the benefits sought on appeal; therefore, no further discussion regarding VCAA notice or assistance duties is required New and Material Evidence The appellant's initial claim for service connection for cause of death was denied in November 1990 because the medical records and evidence did not show the Veteran was treated for diabetes mellitus while in service or that his diabetes mellitus manifested to a compensable degree within one year of release from active duty. The appellant was notified of this decision by VA Letter dated January 22, 1991. She did not appeal or submit new and material evidence within one year. Next, VA Rating Decision, dated in November 2004, reconsidered the issue of service connection for cause of death due to diabetes mellitus based on a change in the law that allowed service connection of diabetes mellitus type 2 for veterans that served in the Republic of Vietnam. The Veteran's exposure to herbicides was conceded. However, service connection for diabetes mellitus was denied because the medical records showed the Veteran was diagnosed with diabetes mellitus type 1 (also called Juvenile diabetes) and diabetes mellitus type 1is not presumptively linked to herbicide exposure. The appellant was notified of this decision by VA Letter dated November 17, 2004. She did not appeal or submit new and material evidence within one year. The appellant's claim for service connection for the cause of the Veteran's death was next denied in an April 2005 rating decision. The rationale was the same as in the 2004 rating decision. The appellant was notified of this decision by VA Letter dated April 8, 2005. She did not appeal or submit new and material evidence within one year. She again filed a claim in November 2011. Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In November 2011, the appellant sought to reopen the claim for DIC benefits. During the pendency of the appeal, the appellant submitted additional evidence, including a letter written by the Veteran while he was on active duty in 1966. In that letter, the Veteran wrote about receiving medical treatment, including a blood test. She also submitted an "end statement of death" completed by a physician at the time of the Veteran's death which identified cerebro-vascular accident as the primary cause of death, which was not reflected on the death certificate The Board finds that this evidence is new and material as it was not previously before the agency decision makers at the time of any previous denial. Additionally, it relates to an unestablished fact necessary to substantiate the claim, namely the onset of the Veteran's diabetes, as the newly submitted evidence triggers VA's duty to assist to obtain potentially missing service treatment records since a blood test could reveal elevated glucose levels. Therefore, the claim for service connection for cause of death is reopened. 38 C.F.R. § 3.156(a). Service Connection for Cause of Death For entitlement to DIC, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In the present case, the Board finds that the Veteran died from respiratory failure with underlying causes of renal failure, diabetes mellitus, type I, and malnutrition. See September 1990 death certificate. There are no contentions that the respiratory failure or renal failure were linked to his service, nor is there any medical evidence suggesting such a relationship is possible. Therefore, the Board must next determine whether diabetes was incurred in or aggravated by the Veteran's active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Diabetes mellitus, type I or type II, is recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). Of critical importance in this case, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The appellant generally contends that the Veteran's diabetes mellitus had its onset within one year of separation from service. The Board finds that the evidence is in equipoise regarding whether symptoms of diabetes manifested to a degree of 10 percent disabling within one year of service separation. The Veteran separated from service in August 1967. See DD Form 214. In a November 1969 statement, the Veteran stated he lost weight and was "looking bad" within six weeks from separation from service, which was noticed by others including his father. He stated he did not seek medical treatment until a pre-employment physical examination was conducted in May 1968, which showed elevated levels of sugar of 3+ in the Veteran's urine and a blood glucose test was recommended. See May 1968 pre-employment physical. Weight loss and sugar in urine can be symptoms of diabetes. At separation from service in August 1967, the Veteran weighed 150 pounds and he was still about that weight when he took the pre-employment physical in May 1968 (148 pounds). By the time of the VA examination in November 1969, he weighed 127 pounds. A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran was competent to report symptoms of weight loss because this required only personal knowledge as it came to him through the senses. Layno, 6 Vet. App. at 470. Additionally, the Board finds the Veteran's statements regarding his symptomology were credible as there is no contradictory medical information, they are supported by medical documentation in the pre-employment examination and the VA examination, and the statements were made near the time of the onset of symptoms. Nonetheless, the Veteran was diagnosed with diabetes mellitus type I in March 1969. See December 1969 summary of hospitalization by Dr. McDonald. Additionally, at the Veteran's separation examination, the Veteran's endocrine system was found normal, urinalysis was negative for elevated sugar, and the Veteran did not endorse symptoms of diabetes. However, 38 C.F.R. §§ 3.307 and 3.309(a) require neither that the Veteran experience chronic symptoms in service nor that a diagnosis be made within one year of separation from service, but rather require only that the disorder manifest to a degree of 10 percent disabling within one year of separation from service. Therefore, the Board finds that based on the Veteran's credible, competent lay statements regarding symptoms as soon as six weeks from service separation and medical evidence of elevated sugar in the Veteran's urine in May 1968, the Board finds that the diabetes mellitus manifested within one year of service. Additionally, to be 10 percent disabling, diabetes must be found to be manageable by restricted diet only, not requiring insulin. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2015). Type I diabetes is, by definition, insulin dependent diabetes. See Dorland's Illustrated Medical Dictionary at 506 (32nd ed. 2012). Dr. McDonald indicated that he had placed the Veteran on insulin in 1969. Therefore, the Board finds, as the Veteran's diabetes mellitus type I manifested within one year from service to a degree of 10 percent disabling. Therefore, for these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that the Veteran's diabetes was presumptively incurred in active service. 38 C.F.R. §§ 3.307, 3.309. Therefore, the claim for service connection for the Veteran's cause of death is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER As new and material evidence has been received, the claim to reopen service connection for cause of the Veteran's death is granted. DIC based on service connection for cause of the Veteran's death is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs