Citation Nr: 20003372 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-59 928 DATE: January 14, 2020 REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. Entitlement to nonservice-connected survivor pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1945 to June 1949. The Veteran died in October 2007. The appellant is the Veteran’s surviving spouse. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin. In October 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of additional evidence. Evidence was subsequently submitted by the appellant. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to service connection for the cause of the Veteran’s death is remanded. The appellant contends that the Veteran’s cause of death is due or a result of in-service exposure to ionizing radiation. Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancers that are presumptively service-connected when they occur in “radiation-exposed veterans.” 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). This category of “radiation-exposed veterans” includes those veterans who participated in a “radiation-risk activity.” “Radiation-risk activity” is defined to mean: Onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation of forces of Hiroshima or Nagasaki during the period August 6, 1945, and ending on July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee, or, in certain circumstances, service on Amchitka Island, Alaska. 38 C.F.R. § 3.309(d)(ii). Second, “radiogenic diseases” may be service-connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311. To consider a claim under section 3.311, the evidence must show the following: (1) The veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term “radiogenic disease” means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In the instant case, the record reflects that the Veteran participated in a “radiation-risk activity” and, thus, the Board finds that the Veteran is a “radiation exposed veteran” as defined by 38 C.F.R. § 3.309(d)(3). See Third Party Correspondence (July 2013). Next, the Veteran’s death certificate reflects a cause of death as of the result of cardiorespiratory arrest due to (or as a consequence of) sepsis syndrome. The Veteran had no service-connected disabilities at the time of his death. Even though the Veteran’s cause of death is not a presumptive disability related to exposure to ionizing radiation, the appellant is not precluded from establishing service connection on a direct basis. Combee, 34 F.3d 1039. In support of the claim, the appellant provided medical evidence, and lay statements, to include testimony. Of note, a November 2019 letter written by Dr. Bloom provides the following: I previously took care of [the Veteran] who was legally blind due to complications of age-related macular degeneration. He died in 2007. I just learned from his widow that he was on the USS Ajax in the Pacific during the nuclear bomb tests in the 1940s. This may or may not have contributed to his eye and health problems before his death. The Board finds Dr. Bloom’s opinion to be inadequate for adjudicative purposes because it does not contain an adequate rationale explaining the conclusion of the opinion. Moreover, it appears that Dr. Bloom relied entirely on the medical history as provided by the appellant. This is exemplified by the medical opinion not citing to specific records in the claims file. A bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional, whether that professional is a VA or private physician. LeShore v. Brown, 8 Vet. App. 406 (1995). Additionally, the opinion’s conclusion is entirely too speculative to adequately support a decision on this claim. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term “could,” “may,” or “possibly,” without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence). As such, the Board may not rely upon it in its present form to support a grant of the appellant’s claim. Nevertheless, the private medical opinion is sufficient to trigger VA’s duty to assist the appellant in establishing service connection with proof of direct causation. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has not yet obtained a medical opinion in this matter. Therefore, given the available evidence and the appellant’s statements, there is competent evidence of a potential relationship between the Veteran’s cause of death and his military service to warrant remand for a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to nonservice-connected survivor pension benefits is remanded. Death pension is available to the “surviving spouse” of a veteran because of the veteran’s death due to nonservice-connected disabilities, as long as the veteran served for the required period of time during wartime and subject to certain income limitations. See 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.23, 3.3. The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of the spouse’s countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12-month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The MAPR is adjusted from year to year. If the appellant’s income is less that the MAPR, VA will pay benefits to bring her income up to that level. A higher MAPR (and increased benefits) is available to a surviving spouse by reason of the need for aid and attendance. 38 U.S.C. §§ 1502(b), 1541(d), (e); 38 C.F.R. § 3.351(a)(5), (b), (c). Here, there appears to be some inconsistencies regarding the appellant’s income, expenses, and net worth for the period on appeal. For instance, in her initial death compensation claim, in April 2013, the appellant reported income streams from social security ($1,339 monthly) and from a pension ($383 monthly); additionally, she reported one-time unreimbursed expenses totaling $2,408. No information was provided by the appellant for 2014. In May 2016, the appellant submitted VA Form 21-0518-1 reflecting income streams for 2015 from social security ($1,489 monthly) and from a pension ($382 monthly) and a net worth of $21,500 from interest-bearing accounts. No information was provided by the appellant for 2016, 2017, and 2018. In November 2019, the appellant submitted VA Form 5655 reflecting a total monthly income of $1,814 and total monthly expenses of $1,391 and total assets of $222,334 (including $87,350 cash in bank) for 2019. Given that pertinent information is missing for various years and the above discrepancies in income, expenses, and net worth, the Board finds that the issue must be remanded so that the appellant can provide further information. As noted above, the appellant submitted a VA Form 21-0518-1 in May 2016; the form, however, states that a different form is to be used to report medical expenses and has no section in which the appellant could have reported her medical expenses, which is critical in determining whether her income falls below the applicable total MAPR. See 38 C.F.R. § 3.23(a)(5); VA Manual M21-1, Part I, Appendix B. Further, the Board finds that the appellant’s claim of entitlement to nonservice-connected survivor pension benefits is inextricably intertwined with the issue of entitlement to service connection for the cause of the Veteran’s death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). As such, the Board finds that remand is required. The matters are REMANDED for the following actions: 1. Send the appellant the appropriate form(s) necessary to substantiate her claim for nonservice-connected death pension benefits for the period on appeal. Inform the appellant on the importance of providing her total income, expenses, and net worth for all years on appeal. 2. Obtain a medical opinion from an appropriate clinician regarding the Veteran’s cause of death. The clinician must presume radiation exposure and opine on whether the Veteran’s cause of death is at least as likely as not related to service, to include exposure to ionizing radiation during Operation CROSSROADS. 3. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.