Citation Nr: 1639218 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 14-28 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death, and if so, whether service connection may be granted. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney at Law ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1983. He died in December 1998. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the present decision, the Board reopens the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The issue of the appellant's entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed November 1999 rating decision, the RO denied service connection for the cause of the Veteran's death. 2. Evidence added to the record since the November 1999 rating decision relates to an unestablished fact that is necessary to establish service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The November 1999 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been submitted, and thus, the criteria for reopening the claim of entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, the Board may not assess the merits of a claim that has been the subject of a final denial, but the Board may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108 (West 2014). New and material evidence is evidence not previously submitted to agency decisionmakers that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). With respect to the issue of materiality, newly presented evidence need not relate to all the reasons the claim was last denied, but rather, must relate to an unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 119-20 (2010); see also Evans v. Brown, 9 Vet. App. 273 (1996) (explaining that newly presented evidence need not be probative of all the elements required to award the claim). Here, the appellant seeks service connection for the cause of the Veteran's death. The Veteran's death certificate lists "esophageal varices bleeding due to (or as a consequence of) liver cirrhosis due to (or as a consequence of) chronic alcohol abuse" as the cause of his death. In November 1999, the RO denied the appellant's claim for service connection for the cause of the Veteran's death on the grounds that the facts did not show that esophageal varices bleeding and cirrhosis of the liver was directly incurred in or aggravated by service. The RO also explained that service-connected death benefits cannot be granted for a disability that is the result of the Veteran's own willful misconduct and identified the Veteran's substance abuse as willful misconduct. The appellant did not express disagreement with the November 1999 decision nor was additional evidence pertinent to her claim physically or constructively associated with the claims folder within one year of the November 1999 determination. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the November 1999 decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2014). In August 2010, the appellant submitted a claim to reopen her claim for service connection for the cause of the Veteran's death. In a September 2011 rating decision, the RO reopened the claim and denied it on the merits. The pertinent evidence of record in November 1999 includes the Veteran's service treatment records (STRs), various treatment records, and a May 1999 statement in which the appellant asserts that the Veteran became dependent on alcohol during his period of active service and that this dependency caused his death. The post-November 1999 evidence of record includes multiple letters from non-VA psychologist Dr. E.H., who treated the Veteran from October to December 1998. In letters dated in October 2010 and March 2011, Dr. E.H. indicated that she treated the Veteran for posttraumatic stress disorder (PTSD) and his alcohol abuse may have been related to PTSD that developed due to service, and not willful misconduct as initially indicated. Because this evidence relates to an unestablished fact necessary to substantiate the appellant's claim, the Board finds that the claim to reopen must be granted. ORDER New and material evidence having been submitted, reopening of the claim for service connection for the cause of the Veteran's death is granted. REMAND A remand of the appellant's claim is necessary to ensure that due process is followed and there is a complete record upon which to decide the claim so that she is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A remand is necessary to obtain a medical opinion as to the cause of the Veteran's death. As noted previously, the Veteran's death certificate lists "esophageal varices bleeding due to (or as a consequence of) liver cirrhosis due to (or as a consequence of) chronic alcohol abuse" as the cause of his death. The appellant asserts specifically that the Veteran was diagnosed with PTSD and PTSD-induced alcoholism that resulted in his death. Additionally, she asserts that the Veteran's death may be related to complications of type II diabetes mellitus and portal hypertension. Review of the record does not show that the Veteran was service connected for PTSD, diabetes mellitus, or portal hypertension at the time of his death. Generally, Dependency and Indemnity Compensation (DIC) is available to a surviving child who can establish, among other things, that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2014). Service connection for the cause of the Veteran's death may be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312 (2015). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014). Additionally, service connection for certain chronic diseases, such as cirrhosis of the liver, psychoses, diabetes mellitus, and cardiovascular-renal disease, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2015). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 3 8 C.F.R. § 3.307(a). In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. "Proven continuity of symptomatology establishes the link, or nexus, between the current disease [and service] and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. Service connection for PTSD in particular requires medical evidence diagnosing the condition under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, or by findings supported in an examination report; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2015). Here, Dr. E.H. has submitted multiple letters regarding the nature of the Veteran's treatment and his psychiatric diagnoses. In an October 2010 letter, Dr. E.H. reported that she treated the Veteran for PTSD stemming from his experiences in Vietnam and addressed substance abuse problems that the Veteran attributed to his war experiences. In correspondence dated in March 2011, Dr. E.H. reported that the Veteran had PTSD, depression, and substance abuse issues that had onset after he returned from Vietnam. A similar statement was submitted in November 2011. Unfortunately, records of the Veteran's treatment by Dr. E.H. are no longer available. The Board notes that the record is negative for evidence of an in-service PTSD stressor. Additionally, VA has not yet obtained a medical opinion regarding the potential relationship between the Veteran's period or service and the causes of death that are listed on his death certificate, diagnosed psychiatric disorders, type II diabetes mellitus, or portal hypertension. In light of the evidence of record, to include the letters from Dr. E.H., the Board finds that VA has the duty to obtain a medical opinion as to the potential relationship between any diagnosed disorders and the Veteran's death. 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2009). Accordingly, the case is REMANDED for the following action: 1. Esophageal Varices Bleeding, Liver Cirrhosis, and Chronic Alcohol Abuse: Obtain a medical opinion from an appropriate clinician regarding the causes of death listed on the Veteran's death certificate. The claims file should be made available to the reviewing clinician and all findings should be set forth in detail. The reporting clinician should address the following: (a) Is it at least as likely as not that any of the Veteran's listed causes of death (identified on the death certificate as esophageal varices bleeding, liver cirrhosis, and chronic alcohol abuse) had onset during his period of active service or within one year of his discharge from his period of active service? (b) Is it at least as likely as not that any of the Veteran's listed causes of death (identified on the death certificate as esophageal varices bleeding, liver cirrhosis, and chronic alcohol abuse) were otherwise caused or aggravated by his period of active service? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The clinician should discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and cite to specific evidence in the file or to medical literature or treatises, if necessary. If the clinician cannot provide the requested opinions without resorting to speculation, he or she should state why that is the case. 2. Diabetes Mellitus: Obtain a medical opinion from an appropriate clinician regarding the Veteran's diabetes mellitus. The claims file should be made available to the reviewing clinician and all findings should be set forth in detail. The reporting clinician should address the following: (a) Is it at least as likely as not that diabetes mellitus had onset during his period of active service or within one year of his discharge from his period of active service? (b) Is it at least as likely as not that diabetes mellitus was otherwise caused or aggravated by his period of active service? (c) Is it at least as likely as not that diabetes mellitus was a principal cause of death? In answering this question, address whether the Veteran's diabetes mellitus, singly or jointly with some other condition, was the immediate or underlying cause of death. (d) Is it at least as likely as not that diabetes mellitus was a contributory cause of death? In answering this question, address whether the Veteran's diabetes mellitus contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The clinician should discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and cite to specific evidence in the file or to medical literature or treatises, if necessary. If the clinician cannot provide the requested opinions without resorting to speculation, he or she should state why that is the case. 3. Portal Hypertension: Obtain a medical opinion from an appropriate clinician regarding the Veteran's portal hypertension. The claims file should be made available to the reviewing clinician and all findings should be set forth in detail. The reporting clinician should address the following: (a) Is it at least as likely as not that portal hypertension had onset during his period of active service or within one year of his discharge from his period of active service? (b) Is it at least as likely as not that portal hypertension was otherwise caused or aggravated by his period of active service? (c) Is it at least as likely as not that portal hypertension was a principal cause of death? In answering this question, address whether the Veteran's portal hypertension, singly or jointly with some other condition, was the immediate or underlying cause of death. (d) Is it at least as likely as not that portal hypertension was a contributory cause of death? In answering this question, address whether the Veteran's portal hypertension contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The clinician should discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and cite to specific evidence in the file or to medical literature or treatises, if necessary. If the clinician cannot provide the requested opinions without resorting to speculation, he or she should state why that is the case. 4. Psychiatric Disorders: Obtain a medical opinion from an appropriate clinician regarding the Veteran's psychiatric disorders, to include PTSD and depression. The claims file should be made available to the reviewing clinician and all findings should be set forth in detail. The reporting clinician should address the following: (a) At the time of his death, did the Veteran meet the criteria for a diagnosis of PTSD? (b) Is it at least as likely as not that a diagnosed psychiatric disorder had onset during his period of active service or within one year of his discharge from his period of active service? (c) Is it at least as likely as not that a diagnosed psychiatric disorder was otherwise caused or aggravated by his period of active service? (d) Is it at least as likely as not that a diagnosed psychiatric disorder was a principal cause of death? In answering this question, address whether a diagnosed psychiatric disorder, singly or jointly with some other condition, was the immediate or underlying cause of death. (e) Is it at least as likely as not that a diagnosed psychiatric disorder was a contributory cause of death? In answering this question, address whether a diagnosed psychiatric disorder contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The clinician should discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and cite to specific evidence in the file or to medical literature or treatises, if necessary. If the clinician cannot provide the requested opinions without resorting to speculation, he or she should state why that is the case. 5. After the requested medical opinions have been obtained, the report(s) should be reviewed to ensure that the opinions are in complete compliance with the directives of this remand. If a report is deficient in any manner, it should be returned to the reporting clinician for corrective action. 6. Then, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the appellant and her attorney should be provided a Supplemental Statement of the Case, and allow an appropriate period of time for response. Thereafter, if necessary, return this matter to the Board for its review. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs