Citation Nr: 1804921 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-28 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen entitlement to service connection for the Veteran's cause of death, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant, the Veteran's son, and J.B., observer ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran served on active duty with the Navy from July 1942 to November 1945. He died in February 2002. The Appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which denied reopening the claim of entitlement to service connection for the Veteran's cause of death. In October 2017, the Appellant, her son, and J.B., observer, testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for the Veteran's cause of 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. The claim for entitlement to service connection for the Veteran's cause of death was denied in an April 2011 rating decision; a timely notice of disagreement was filed in May 2011; the appellant did not perfect the appeal by submitting a timely substantive appeal. 2. Evidence received since the April 2011 rating decision is new and material, sufficient to reopen service connection for the Veteran's cause of death. CONCLUSIONS OF LAW 1. The April 2011 rating decision which denied service connection for the Veteran's cause of death is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The additional evidence received subsequent to the April 2011 rating decision is new and material to reopen service connection for the Veteran's cause of death. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duties to Notify and Assist 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. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO issued May 2011 and August 2011 preadjudicatory notice letters to the Veteran which met the VCAA notice requirements and addressed the new and material evidence claim consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The information and evidence that has been associated with the claims file includes service treatment records, a certificate of death, lay statements, private medical opinions and records, and a videoconference hearing transcript. Although a VA medical opinion was not conducted with respect to the new and material evidence claim, the Board finds that an opinion is not required for the purpose of reopening the Appellant's claim. See 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2017). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Reopening Service Connection Law and Analysis The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. 38 C.F.R. § 3.156(a) (2017). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to 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 the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO denied service connection for the Veteran's cause of death in an April 2011 rating decision. While the Veteran filed a timely notice of disagreement to the April 2011 decision, a timely VA Form 9 was not filed in response to an October 2012 supplemental statement of the case, making the April 2011 rating decision final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In rendering the April 2011 rating decision, the RO considered the Veteran's service treatment records, which did not show a diagnosis, treatment or complaints related to a mental disability or heart disability. The RO considered private opinion letters from the Veteran's private physician, Dr. J.F.M, which indicated that the Veteran's chronic anxiety, alcohol abuse, hypertension and arteriosclerotic heart disease were related to his World War II service, and also stated that the Veteran suffered from posttraumatic stress syndrome. The Veteran's death certificate was also associated with the record, which showed the Veteran's immediate cause of death was by myocardial infarction in February 1996, and a wedding certificate of record showed the Veteran and the Appellant were married in October 1948. Additionally, the Appellant submitted, and the RO considered, the Veteran's military personnel records, which showed the Veteran was stationed in Okinawa. Further, lay statements of record from the Veteran's daughter and the Appellant indicated that the Veteran was angry and drank heavily due to his time served during World War II. The RO denied service connection for the Veteran's cause of death in the April 2011 rating decision, finding that the Veteran's cause of death was due to myocardial infarction, and that the evidence failed to show that the Veteran's cause of death was related to service. Therefore, the Board finds that new and material evidence must tend to show that the Veteran's cause of death was related to service. In an October 2017 videoconference hearing, the Appellant testified that ever since she married her husband in 1948, that he had hypertension and heart issues, and displayed symptoms of anxiety and depression, which she believed were caused by his time in the Navy. The Appellant, through her representative, contended that the Veteran had been dealing with PTSD for many years without treatment, except by self-medication through alcohol abuse, which contributed or exacerbated his diagnosed hypertension. Upon review of the new evidence submitted since the April 2011 rating decision, the Board finds that the Appellant presented additional lay evidence, within the October 2017 videoconference hearing that tended to relate his death to his service during World War II. Accordingly, in light of the "low" threshold as announced in Shade, the Board finds that new and material evidence sufficient to reopen service connection for the cause of the Veteran's death has been received, and the claim is reopened. See 38 C.F.R. § 3.156 (2017); Shade, 24 Vet. App. 110. REMAND Pursuant to VA's duty to assist under the Veterans Claims Assistance Act of 2000, VA will provide a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). A medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312 . Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The Veteran's death certificate indicates that the immediate cause of his death was myocardial infarction. No other underlying or contributing causes were identified. The Appellant contends within an October 2017 videoconference hearing that the Veteran had been dealing with PTSD for many years without treatment, except by self-medication through alcohol abuse, which contributed or exacerbated his diagnosed hypertension, contributing to his cause of death by myocardial infarction. Private medical records show the Veteran was preliminarily diagnosed with severe situational anxiety and depression in August 1981, and show from September 1994 to September 1995 that the Veteran was diagnosed with congestive heart failure. Additionally, a December 2002 note from a private physician indicates that the Veteran suffered from chronic anxiety, alcohol abuse, hypertension and arteriosclerotic heart disease, and in the physician's opinion, these conditions were related to the Veteran's WWII service. In a private treatment notes received from the same physician in December 2010 indicates that the Veteran had suffered from posttraumatic stress syndrome and that it was his determination that the Veteran suffered from PTSD secondary to his service in WWII. He stated that the Veteran's PTSD caused chronic anxiety requiring medication, eventually led to alcohol abuse, and gave rise to persistent hypertension and arteriosclerotic heart disease. He further opined that these diagnoses culminated in a heart attack and stroke by age 47, and that the patient eventually died of heart failure. He believed these factors, events, and complications were linked and interconnected products of his PTSD, which he endured throughout the remainder of his life after his WWII service. While private medical evidence of record received after the Veteran's death indicates the Veteran had carried psychiatric disabilities, to include anxiety, depression and PTSD that were related to the Veteran's military service, the Board finds that a VA medical opinion is necessary to determine whether his psychiatric disabilities were related to his active service based upon a review of the Veteran's entire claims file. If the VA examiner determines the Veteran's psychiatric disability was related to service, the Board finds that a medical opinion is also necessary to determine whether the psychiatric disability had any impact on his cause of death. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. The AOJ should refer the case to a qualified VA examiner for a VA medical opinion to determine the nature and etiology of any psychiatric disability the Veteran had at the time of his death in February 1996, to include anxiety, depression and PTSD, and determine the impact, if any, that the psychiatric disability had on his cause of death. The Board notes that the Veteran's immediate cause of death, as listed in the death certificate, was myocardial infarction. The Veteran's claims file must be reviewed in conjunction with the rendering of the requested opinions. Upon review of the Veteran's claims file, the examiner is requested to provide an opinions: i. For each diagnosed psychiatric disability, determine whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed psychiatric disability was related to the Veteran's active service. If PTSD was diagnosed, the examiner must clearly identify the stressor or stressors upon which the diagnosis of PTSD is based. ii. For each diagnosed psychiatric disability that the examiner determines is at least as likely as not related to the Veteran's active service, determine whether the diagnosed psychiatric disability was either the principal or contributory cause of the Veteran's death. (His death certificate lists his immediate cause of death as myocardial infarction.) A "principal cause of death" is the immediate or underlying cause of death or was etiologically related thereto. A "contributory" cause of death" is one which contributed substantially or materially 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." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale for all opinions and conclusions should be provided with references to findings in the claims file. 2. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Appellant and her representative with a supplemental statement of the case, and should give the Appellant a reasonable opportunity to respond before returning the record to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs