Citation Nr: 1802464 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-17 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from October 1965 to September 1968. The appellant seeks benefits as his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of May 2006 and July 2013 decisions of the Department of Veterans Affairs (VA) Regional Office in San Diego, California. The May 2006 RO decision denied service connection for the cause of the Veteran's death. In April 2010, the Board remanded the issue of entitlement to service connection for the cause of the Veteran's death for further development. The July 2013 RO decision denied service connection for a psychiatric disorder, to include PTSD (listed as PTSD). A February 2014 Board decision remanded the issue of entitlement to service connection for the cause of the Veteran's death for further development. The Board also remanded the issue of entitlement to service connection for a psychiatric disorder, to include PTSD, for accrued benefits purposes for the issuance of a statement of the case. In August 2017, the Board requested a Veterans Health Administration (VHA) opinion, as to the issue of entitlement to service connection for the cause of the Veteran's death, and the VHA opinion was obtained in January 2018. As the VHA opinion is fully favorable to the appellant, it is not necessary to provide an opportunity for the appellant and her representative to respond to the VHA opinion and the Board will decide the matter accordingly. FINDINGS OF FACT 1. At the time of his death, the Veteran's claim for service connection for a psychiatric disorder, to include PTSD, was pending. 2. The Veteran's psychiatric disorder, diagnosed as PTSD, had it onset in service. 3. The Veteran died in February 2016. The death certificate lists the immediate cause of death as Alzheimer's disease. 4. An amended death certificate, received in February 2010, lists the immediate cause of death as Alzheimer's disease, with posttraumatic stress disorder (PTSD) hand-written in as a condition leading to the immediate cause of death. The amended death certificate is initialed by, apparently, the physician that signed the original death certificate. The initials are not dated, and there is no explanation for the change in the original death certificate. 5. The Veteran's service-connected PTSD contributed materially to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met, for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.1000 (2017). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Psychiatric Disorder, to include PTSD Although a veteran's claim terminates with that veteran's death, a qualified survivor may carry on, to a limited extent, the deceased veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 2002); see Landicho v. Brown, 7 Vet. App. 42, 47 (1994). While an accrued benefits claim is separate from the veteran's claim filed prior to death, the accrued benefits claim is derivative of the veteran's claim; thus, an appellant takes the veteran's claim as it stood on the date of death, but within the limits established by law. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651, 2656 (Dec. 16, 2003) (codified at 38 U.S.C. § 5121(a) (West Supp. 2005)) repealed the two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This revision applies only to deaths occurring on or after December 16, 2003. As the Veteran died in February 2006, the revision is applicable to this claim. In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a) (West 2002); see also Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). The Veteran died in February 2006, and, at the time of his death, he had a claim pending for entitlement to service connection PTSD. In April 2006, the appellant filed her claim for accrued benefits. Thus, her claim was timely filed. Because the appellant's claim is for the purpose of accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death, other than VA records that were constructively of record at the time of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided 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. 38 C.F.R. § 3.304(f) (2015). Further, 38 C.F.R. § 3.304(f) provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The appellant essentially claims that the Veteran had PTSD based on alleged stressors in Vietnam. She reports that the Veteran suffered from PTSD for twenty-nine years. The Veteran served on active duty in the Marine Corps from October 1965 to September 1968. There have been numerous attempts to verify the Veteran's claimed service in the Republic of Vietnam, to include attempts to obtain his official military personnel file (OMPF), his service personnel records, and his DD Form 2014. Based on the current record, the Board finds that it is at least as likely as not that the Veteran served in Vietnam. The Veteran's service treatment records do not show treatment for any psychiatric disorders, including PTSD. Post-service private and VA treatment records show that the Veteran was treated for numerous disorders, including dementia; depression; and PTSD. The Veteran served in Vietnam. The evidence of record, at the time of the Veteran's death, includes a September 2005 report from a VA psychiatrist that diagnosed the Veteran with PTSD, depression and dementia. The VA psychiatrist specifically found that per the Veteran's clinical history and clinical presentation, he clearly had PTSD from combat trauma. In light of the Veteran's service in Vietnam, the Board finds that service connection for a psychiatric disorder, diagnosed as PTSD, is granted for accrued benefits purposes. II. Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2017). The appellant essentially contends that the Veteran's PTSD contributed to his death. She specifically maintains that the Veteran's PTSD was unmasked by the beginning of his Alzheimer's disease. The appellant reports that the Veteran suffered from symptoms of PTSD for twenty-nine years. The Veteran's service treatment records do not show treatment for Alzheimer's disease or for any psychiatric disorders, including PTSD. Post-service private and VA treatment records show that the Veteran was treated for numerous disorders, including dementia; depression; PTSD; hypertension, hyperlipidemia; status post an aortic valve replacement; aortic stenosis status post aortic valve replacement; mild left ventricular systolic dysfunction; and perivalvular aortic regurgitation. The Veteran died in February 2006. The death certificate lists the immediate cause of death as Alzheimer's disease. An amended death certificate, received in February 2010, lists the immediate cause of death as Alzheimer's disease, with posttraumatic stress disorder (PTSD) hand-written in as a condition leading to the immediate cause of death. The amended death certificate is initialed by, apparently, the physician that signed the original death certificate. The initials are not dated, and there is no explanation for the change in the original death certificate. At the time of the Veteran's death, service connection was not established for any disorders. As discussed above, the Board has granted service connection for a psychiatric disorder, diagnosed as PTSD, for accrued benefits purposes. A VHA opinion, received in January 2018, was provided by a psychiatrist. The VHA expert opined it was at least as likely as not that the Veteran's Alzheimer's dementia was caused by his PTSD. The expert also specifically indicated that it was her opinion that there was a causal relationship and an increased rate of the Veteran's neurocognitive disorder due to his PTSD. The expert further concluded that the Veteran's PTSD, of service origin, contributed and lent assistance to the production of his death and that his PTSD resulted in debilitating effects in the general impairment of his health to the extent that would render the Veteran materially less capable of resisting the effects of Alzheimer's disease. The Board finds that January 2018 opinions provided by the VHA expert are the most probative opinions of record. The opinions provided by the VHA physician support the appellant's claim. As such, service connection is warranted for the cause of the Veteran's death. ORDER Service connection for a psychiatric disorder, diagnosed as PTSD, is granted. Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs