AMC came through with a SSOC in todays mail. Once again, I am denied for DIC.

They did not list my evidence. (spoilation?) Rubber stamp again!

They did not address my issue - that PTSD contributed to my hubbys death. (denial made while not condiserating my position)

As an aside, they mentioned the DVD I sent them with the second set of papers but did not list the evidence, and never mentioned the original documents I sent...(spoilation?)

I have thirty days to respond, which I will, with the full gamut of information I have already supplied. They said if I do not respond within 30 days, they will send the file back to the BVA. Is that good for me or bad?

GRRR I am angry.

Should I ask for a reconsideration, or make a NOD?

I had already connected the dots, supplied IMO for PTSD, and copied them with their documents pertaining to his PTSD.

My friends here are telling me to get out of the loop and get congressional intervention, even though I told them about the retribution that it can cause.... any thoughts?

Thanks, please forgive me for venting,

AkWidow

Attorney and CAVC is your option.

J

x
x
x

I don't think the AMC is cranking out ANY good decisions! You need to get your Claim to the Court! I'm uncertain wheather or not you need to file an NOD with the AMC to keep your effective date of claim. Were your Appellate Rights attached to the AMC decision? I'm sorry you have to keep fighting, but you sound like you have the right spirit! Never give up! ~Wings

Can and you obtain and submit to V.A. a written medical opinion from one of your husband's medical doctors or other medical professional that your husband's PTSD caused or contributed to your husband's death? This sort of new and material evidence might make it possible for you to win DIC from V.A.

Well, you see, DeltaJ, I already did that.

I started with a claim in 2004, was denied, appealed to BVA, was denied, but it was remanded to AOJ by COVA back to AMC, who issued the latest denial.

It says in the papers they sent me that the PTSD information I send to them is not relevant to the DIC case...and I think it is, and that was the basis of PTSD as a secondary cause of death...and his oncology doctor put in on his death certificate as well as stating that his PTSD had an effect on his attitude toward his health care. All the information I sent to them was in the VA files... and I showed them a dot by dot pattern of behavior where my vet used avoidance for his health care for all but chronic instances, or injuries that spanned from the 70's to his death.

They didn't follow their own rules!

I think that you should consider a lawyer. If not at least send in spoilation letter before the deadline.

Good Luck

By the way over time we have had some widows who won DIC Claims and I think that Berta and some of our Ladies who are experts really helped them. Never give up your husband earned the benefits for you.

I also have already sent in the spoilation letter....

As far as a lawyer goes, I have also considered that...but I doubt there is one in Alaska. Do they practice across state lines?

Yes they do. You might check out the thread that Larry had about Lawyers

will do!

I am not giving up, let me make this clear. I did go to that post of Larry's and write to two different attorneys. Tomorrow after my kids leave I plan on covering every surface I have, and organizing like I have OCD the information I have gathered for my claim. Since there has been a beginning of order with the records, it will not be so hard as starting from scratch.

I appreciate any other wisdom anybody may give me!

If you have a good claim with plenty of potential retro it will light a fire under a decent vet lawyer. I hired one. I may still lose, but at least I am getting a representative who has major motivation to win for him and me. He will get 20% of about 30 years of retro. People don't hesitate you get lawyers for SSD, so why not for VA claims since it is legal now?

akwidow,
I'm sorry you still have to keep fighting
and hope you get anything they owe you.
Hang in there.
Denials and remands - suck.
carlie

I have a new question. On the back page of the SSOC, it has the 30 day question issue. My question about this is as follows:

I wonder if it of any advantage for me to wait out the 30 days and have the case go back to the BVA, as it says this will happen if I do not respond within that time frame. Waiting will get the case out of AMC, but will leave me with but one stop and only one more denial before the case is over.

On the other hand, they did not list my pertinent evidence which I submitted to begin with, and my guts tell me to once again list it and include it page by page while asking for a Reconsideration.

Any thoughts?

Why wait?

My suggestion (below) was to send your NOD to the AMC --but add a "waiver" of prior review by the AMC and AOJ?VARO. In effect, send the NOD and tell them AMC you want your claim to go FORWARD to the BVA. ~Wings

Wings, my only fear about going to the BVA is that it will be the last stop. This case has already been once through the VARO, BVA if that means the traveling board, and appealed to COVA then back to AOJ which is in this case the AMC.

Is that correct about it being the last stop before a case is thrown out?

x
x
x

BVA is not the last stop. You can Appeal a BVA Decision to the "Court" of Appeals for Veterans Claims (CAVC) http://www.uscourts.cavc.gov/

Wings is giving good advice. However it is more likely that BVA will remand if not fully developed and looks like your VARO sucks to me.

[quote name='akwidow' date='Oct 24 2009, 08:51 PM' post='172535']
Well, you see, DeltaJ, I already did that.

I started with a claim in 2004, was denied, appealed to BVA, was denied, but it was remanded to AOJ by COVA back to AMC, who issued the latest denial.

This sentence does not cumpute with me: When your Claim was Denied by the BVA, did you Appeal to the Court of Appeals for Veterans Claims? Has your claim ever been to the Court??? ~Wings

I think I would hire a lawyer if possible. You claim can get lost in this shuffle. The AMC seems to be a holding tank for claims that serves no purpose. These remands are a curse. The BVA should either grant or deny claims and not remand them endlessly.

john and wings:

I did contact two of the lawyers listed in Larry's recent post; one has responded to me and asked me to call for a telephonic appointment. I will do that today.

Wings, I made the DIC claim in 2004 and was denied. I appealed and was denied. MOPH picked up my case and took it to Court of Veterans Appeals where it was remanded (according to Berta, for VCAA violations) to AMC.

All I know is, when it was remanded, I sent in 170 pages of material proof and a 16 page brief, all of which the AMC must have lost, because they did not address or list that material. I sent in a CD a year later which was a mirror of the same material just to cover my A**. AMC did not list the material on the CD or the other material - THEY SAID THEY PRINTED IT BUT IT WAS IRRELEVENT; all they said was it did not apply to my case....and ruled that the cancer death was not SC. I was claiming that a secondary condition - PTSD - was contributory to his death, and that material was I am guessing what they said did not apply to my case.

THEY DID NOT RULE ON THE GUTS OF MY CASE, OR EVEN RECOGNIZE IT...

I bet they did not even read the material you sent to them. They would have had to address this material in the decision. They did not want to do the extra work so they just ignored it. This is why you need a lawyer.

http://www4.va.gov/vetapp08/files2/0811271.txt link to COVA remand

Sorry, it is not brief...but I do not want to mis-state anything. I basically see that the RO at AMC in my current denial did not consider any of my ptsd evidence as of any value. I never once claimed tha colon cancer was SC, but that ptsd was and that it contributed to his death. I illustrated this with almost 30 years of medical records, most of which they gave me.



In its September 2007 Joint Motion the Court requested that
the Board provide more comprehensive discussion of the
reasons and bases pertaining to its decision on further
consideration of the claim, with reference to one or more
sources of evidence indicating that service-connected PTSD
may have been one of the contributing factors to the cause of
the veteran's death. The case was then returned to the
Board. Thereafter, the Board sent to the appellant an
October 2007 notice letter informing her of the opportunity
to submit additional argumentation and evidence prior to the
readjudication of her claim within a 90-day time period.
In response, she provided several items of evidence not
previously on file, including but not limited to a detailed
personal statement dated December 2007, statements from
physicians and other treatment providers, and various medical
journal articles. Moreover, she elected the option set forth
upon the Board's October 2007 letter to have the case
remanded to the RO as the Agency of Original Jurisdiction
(AOJ) to initially consider such evidence. Thus, a
remand is necessary to implement this request.

...

1. Prior to any further adjudication of the
claim for service connection for the cause
of the veteran's death, the RO should
send the appellant another VCAA letter in
accordance with 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002), and all other
applicable legal precedent. This
additional letter must set forth
discussion of the criteria for
demonstrating entitlement to DIC benefits,
as outlined in the Court's decision in
Hupp v. Nicholson, 21 Vet. App. 342
(2007).

2. The RO should readjudicate the claim for
entitlement to service connection for the
cause of the veteran's death. If the
benefit sought is not granted, the
appellant and her representative should be
furnished with a supplemental statement of
the case (SSOC) that includes review of
all additional evidence received from the
appellant in December 2007, and then
afforded an opportunity to respond before
the file is returned to the Board for
further consideration.

See http://www4.va.gov/vetapp08/files2/0811271.txt"]http://www4.va.gov/vetapp08/files2/0811271.txt

Sorry, it is not brief...but I do not want to mis-state anything. I basically see that the RO at AMC in my current denial did not consider any of my ptsd evidence as of any value. I never once claimed tha colon cancer was SC, but that ptsd was and that it contributed to his death. I illustrated this with almost 30 years of medical records, most of which they gave me.

x
x
x


akwidow, The link you provide takes me to a recent BVA Decision, dated 04/04/08. You have not provided the actual Court (CAVC) Remand, but rather it is referenced therein the 04/04/08 BVA Decision.

What I am reading into this 04/04/08 BVA Decision:

"The appellant ... raises the issues of entitlement to service connection
for asthma, and a higher rating for service-connected
post-traumatic stress disorder (PTSD), both presumably for
accrued benefits purposes. These claims, however, are not currently before
the Board. See 38 C.F.R. § 20.200 (2007).

Whereas these [two] claims have not been adjudicated by the RO in the
first instance, to include the question of whether they were
timely filed pursuant to 38 C.F.R. § 3.1000© (2007), they
are referred to the RO for [u]appropriate development and
consideration.

. . . the appellant provided a notice of disagreement (NOD)
with the initial non-compensable rating for bilateral hearing
loss, for purposes of entitlement to accrued benefits.
Consequently, this claim should be remanded to the RO for issuance of a
statement of the case (SOC) pertaining to the matter.


Ak Widow, I do not know the conditions surrounding your husband's death.

From reading this 04/04/08 BVA Decision, I clearly read your claims for Asthma and Increased service-connected for PTSD. I clearly read, that these two claims were to be Adjudicated in the first instance by the VA Regional Office; in this case, the AMC would be acting as the VARO. This Remand also asks the VARO to provide a decision on the issue of a compensatable rating for bilateral hearing loss.

I gather that the SSOC you just received from the AMC did not properly "develop" or "adjudicate" your increased SC PTSD claim. Is that correct? Did the AMC decision decide the Asthma issue? The Hearing loss issue? If the AMC did not properly adjudicate, develop or decide the PTSD, Asthma and Bilateral Hearing Loss Issue(s) "in the first instance", then they could not properly decide the cause of the veterans death. Sounds like the AMC has put the cart before the horse.

You got little help from the AMC, they are poorly trained to say the least. In my opinion, your best route of attack would be a simple NOD to the AMC, tell them they did not follow the Board's Remand instructions and ask them to return your case to the BVA for a decision.

I recently had to NOD the AMC decision, and this is how I did it. The BVA still denied my claim, but they did so in just a few months ... Now I can go to the Court. ~Wings


January 31, 2009

RE: 397/AMC

VA File No. xxx-xx-xxx

BVA Docket No. 06-33 xxx

Veterans Name
Veterans Address
Veterans Tel Number

Department of Veterans Appeals
Appeals Management Center
1722 Eye Street NW
Washington DC 20421

CC: Board of Veterans Appeals

NOTICE OF DISAGREEMENT (NOD)(6 pages)(evidence attached)

The veteran, expressly “waives” prior review of this Notice of Disagreement by the Appeals Management Center (AMC); and asks that the case be returned to the Board of Veterans Appeals (BVA) for further review.

SUBJECT: Formal Notice of Disagreement with the Appeals Management Center’s (AMC) Decision dated 12-01-08. The AMC Decision and SSOC were mailed to the veteran, 1-13-09.

ISSUE: Entitlement to an effective date prior to January 25, 1999 for the grant of service-connection for post-traumatic stress disorder (PTSD)

INTRODUCTION: See the BVA REMAND, 8-21-08

BACKGROUND: See veteran’s Submission of Additional Evidence to the Board of Veterans' Appeals (6-02-08, 28 pages)

The BVA Remand

The 8-21-08, BVA Remand instructed the AMC to adjudicate the veteran’s CUE claim. Only thereafter, was the AMC to adjudicate the Issue of Earlier Effective Date for Post Traumatic Stress Disorder, as “inextricably intertwined” with the CUE claim. Detailed on page -2- of their Remand, the BVA rightly explains the claim of CUE in two parts: “Specifically, she argued that the finding that she had a dishonorable period of service and that a failure to notify her of the August 31, 1988 decision were CUE.”

The AMC Adjudication of the CUE Claim

The 12-01-08, AMC Decision did Concede CUE in that, “ ... However, the 12-01-08, AMC Decision did not adjudicate the second part of the CUE claim ...

Then I listed the AMC Errors and CC to the BVA. I sent my NOD to both the AMC and the BVA at the same time. The AMC did, in fact, forward my NOD to the BVA for a final decision.

NEVER GIVE UP!!!

Wings - I still did not pull out the court decision, but now I understand what you mean. The Court basically told the BVA to tell me why my evidence did not count, and to make sure I received the VCAA information.

I had claimed that my husband died of colon cancer with a secondary of PTSD...his avoidance caused him to neglect his health.

No, AMD did not develop or discuss the EED PTSD or Asthma issues; there is no mention of them. This would be a CUE? I plan on cue-ing the earlier denied decisions in his file. That is a lot of CUE!

In this current denial they listed none fo the additoinal information I sent them TWICE, and and provided no evidence section in the SSOC. They still did not tell my why my evdence did not count.

In another thread, Carlie said in part "It is important to study the Reasons and Bases Section of the Rating Decision that you are filing the NOD on, (I am assuming here that you filed a NOD). The Reasons and Bases Section, along with the Evidence Section are usually very helpful in preparing your appeal, in the way that they will point to what is needed in order to get the claim granted."

After I read the above noted thread, I saw under Reasons and Bases in my SSOC dated October 20, 2009 the following:

As noted, the Board of Veterans Appeals remanded your appeal for additional evidential development, in pursuant ot the Veterans Claims Assistance Act (VCAA) notification, evidential development, and readjudication.

On April 4, 2008, we sent you a VCAA development letter asking you to submit and/or specify evidence to support your appeal. To date, we have not receibed any response and/or additional evidence from you, in support of yor appeal, to our request.

We received a letter requesting additional records for the veteran's medical care in Vietnam in 1968. We responded to your letter on April 11, 2008. We received your letter and DVD. We made prints from the DVD you submitted. Upon review of the prints (documents it is determined as not pertinent to the issues on appeal.

This is the exact wording and punctuation of the R&B section. See the last section? Everything I sent addressed PTSD. How can that evidence not be pertinent?

There is no evidence section.

They did not deny my claim of PTSD as a contributory cause of death, they only denied that colon cancer is not SC. I already knew that.

I had sent 170 pages of evidence to them after the Court remanded my claim for further development. I sent the DVD as a second copy of the evidence a year later just to cover my a**, all data sent return receipt. The evidence included doctor nexus letters, and a dot by dot of history of my vet's avoidance to medical care, exhibited in chronic and acute treatments only. There was other important evidence.

This is no different than the earier denials...they must think I am stupid! And they did an even worse job of looking at the new evidence (if they even did) because they did not list it! I feel my case is stronger than ever....

As far as the hearing loss claim goes, I don't ever expect to see anything meritous from that...especially after reading the posts here. Since he did not file for tinnitus, it is moot.

Don't you worry about me - I will get that NOD in the mail on time if it is the last thing I do.

I have a telephonic appointment with Kenneth Carpenter on Nov. 12. My 30 days is up on November 20, or the 19th if we split hairs as October has 31 days. I have plenty of time to write a simple NOD and will do so asap.

Thanks for your time and your caring...

Well, I got the file boxes back out to start again with fresh eyes. First thing I looked at was his rating decision from 2003 where they granted 50% for PTSD. I glanced down at the denied shrapnel wounds list, hearing, and cancer claims via AO, and I found the presumptive denial of course for colon cancer 7344 (BTW, 7344 is for Benign neoplasms of the digestive system) hmmmm....how can a benign neoplasm be colon cancer?

Further on down the list I found 7913 which they titled Exposure to Agent Orange. I looked up the code and it is for DMII! He never made a claim for DMII, but they denied him anyway! Since I have found sympotoms of DMII I was going to pursue that, so didn't they open the door for me?

Like I said in other posts, I can't thank you folks here enough for the education I have received since I found you early this year....and if my guy were still alive he would be thanking you too.

Click to view attachment

AK Widow, What a beautiful photograph of your husband, I'm sure you miss him everyday, and he would be proud of you for continuing the fight. I think you are doing the right thing by Ken Carpenter --he is THE MAN for PTSD veterans. I would not worry too much about the AMC, they did not follow the Remand instructions and the BVA will have to lay it out for them step by step. I'm not sure, but I would think Carpenter could file a Writ of Mandamus on your behalf. We are all here, and have your back. ~Wings

ak,
What a photo shot and a handsome man.
Here's some hugs -

O O O O O

Thank you - I do feel your good vibes, and am gratefully accepting them all. He was a handsome man, but the love he gave me in spite of his disfunctions far out weighed the value of his good looks, and since he gave me the gift of being able to love and have faith in myself, I became a much better person for meeting him. I will be forever grateful for that.

I hope that Berta will weigh on on your questions ...

If I may be so blunt, what was listed as the cause of death on the death certificate? Was there an autopsy; if so, who conducted that exam? ~Wings

AKWidow:

I greatly admire your tenacity and when you win your claim I am sure that your hubby will be able to rest in peace knowing that the benefits he earned for you were won cause of the person that you are.

I often tell people that by ourselves we have some dysfunctions but together we make one hell of a person. I am referring to me and Mrs Pete

Thank you Pete, that is what the definition of wed as one means, right?

-------

Cause of death was listed as colon cancer, with ptsd added by amendment as secondary cause by his diagnosing internist. True to his Jewish faith, my guy requested no embalming, and quick burial. His best friend had built him a very fine pine domed coffin which we used much earlier than expected. It was -25 the day he died, and -30 the next day when we put him in the ground.

He lay in his coffin in our living room after our friends cleaned him and dressed him in his fancy threads, and the hearse came to our house the next day to take him to the cemetary. I had written his obituary a few months before he died because I knew I wouldn't be capable later. Since he died in the morning, the local newspaper was able to get the obit in the next day edition, and there was a large crowd at the cemetary in spite of the -30 temperatures. He had died the day before his birthday. We buried him on his birthday, and the party we had planned for that night became his wake. 100's of people came and went through our doors that day after the burial, and even though I was in a black fog, I could feel the love and loss exxpressed by the folks who came. I couldn't talk very well, but I could read. So I read aloud about him from the emails we received from the people who could not come in person to his wake. He was a man very loved by those who bothered to know him.

I was so lucky to have him as long as I did...and at times I still feel his loving embrace in my mind.

I am so sorry that I was not smart about these VA issues when he was alive, as I could have been helping him with VA long before he died. But I was not, and I have forgiven myself for not "knowing" about VA earlier. To paraphrase what Larry says, "You must have all the voices in your head act as a unified front in order to fight and win a battle....and they (the voices) should like each other!"

"I hope that Berta will weigh on on your questions ..."

I have made many responses to akwidow,Wings.

The BVA rejected initial arguments and evidence she had raised but the claim was remanded.

The remand states:

"Prior to any further adjudication of the
claim for service connection for the cause
of the veteran's death, the RO should
send the appellant another VCAA letter in
accordance with 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002), and all other
applicable legal precedent. This
additional letter must set forth
discussion of the criteria for
demonstrating entitlement to DIC benefits,
as outlined in the Court's decision in
Hupp v. Nicholson, 21 Vet. App. 342
(2007)."


She should have received a compliant VCAA letter from the VA after this remand and then sent them the evidence they wanted.

They need very strong medical evidence to award this claim.

I dont know if she needs an IMO from an oncologist or a psychiatrist or even both.

It will be very difficult to convince the VA that her husband's PTSD caused or contributed to his colon cancer.BVA stated why in their initial denial and maybe even in the remand.
She cannot depend on the arguments she made that the BVA already rejected.

She needs clear and convincing strong medical evidence -from a doctor fully capable to opine on both PTSD and his colon cancer -in order to establish a nexus between his PTSD and his death-to support her claim.

x
x
x


Thanks Berta! I've been gone for awhile, and even when I am here, only half of me is present or accounted for! I agree, that AK Widow's claim poses very challenging issues --but yours was no walk in the park either.

AK Widow, You stated, "Cause of death was listed as colon cancer, with ptsd added by amendment as secondary cause by his diagnosing internist." --Was this "ammendment" added to his Death Certificate? ~Wings

yes, the death certificate was amended to add PTSD as secondary cause of death.

I was going over his psych exams yesterday, and found the paragraph where in 2003 the VA examiner opined that my vet was suffering greatly in the early 90's from his ptsd. This co-insides with his psych phd counselor who made the same conclusion.

I reread medical reports I gathered, and feel my doctor letters both medical and psych efficiently support my claim. They all meet the at least likely as not standard. My first application was hand written, and poorly supported...grief written. The data I supplied after the remand was not listed as evidence and the reasons and basis section did not address the remand completely - they still did not tell my why my data did not count as proof. They simply dismissed it as immaterial.

x
x
x


The ISSUE

Entitlement to service connection for cause of the Veteran's
death.

Service connection may be established for the cause of a
Veteran's death when a service-connected disability "was
either the principal or a contributory cause of death." See
38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2008);
see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria
for establishing service connection). A service-connected
disability is the principal cause of death when that
disability, "singly or jointly with some other condition,
was the immediate or underlying cause of death or was
etiologically related thereto." See 38 C.F.R. § 3.312(b)
(2008). A contributory cause of death must be causally
connected to the death and must have "contributed
substantially or materially" to death, "combined to cause
death," or "aided or lent assistance to the production of
death." See 38 C.F.R. § 3.312©(1) (2008). See generally
Harvey v. Brown, 6 Vet. App. 390, 393 (1994).

In order to establish service connection for cause of death,
there must be (1) evidence of death; (2) evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and death. See Hickson v. West, 12
Vet. App. 247, 253 (1999).

QUOTE (akwidow @ Oct 30 2009, 10:26 AM)

yes, the death certificate was amended to add PTSD as secondary cause of death.

This "amendment" is significant medical evidence that would support direct service-connection. I do not know the legalities of a true and proper death certificate, but I would think that if the M.D.'s amenndment was, in fact, lawful procedure, then the VA could not ignore the credibility or weight of this evidence. Has this fact been entered into the Board's record?

I was going over his psych exams yesterday, and found the paragraph where in 2003 the VA examiner opined that my vet was suffering greatly in the early 90's from his ptsd. This co-insides with his psych phd counselor who made the same conclusion.

I reread medical reports I gathered, and feel my doctor letters both medical and psych efficiently support my claim. They all meet the at least likely as not standard. My first application was hand written, and poorly supported...grief written. The data I supplied after the remand was not listed as evidence and the reasons and basis section did not address the remand completely - they still did not tell my why my data did not count as proof. They simply dismissed it as immaterial.

Comment: Your "doctors letters" must be discusss in detail, see below. Also, have those reports Notorized!!

http://www4.va.gov/vetapp09/files2/0917900.txt

Citation Nr: 0917900
Decision Date: 05/13/09 Archive Date: 05/21/09

DOCKET NO. 05-38 298 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to service connection for the cause of the
Veteran's death.


REPRESENTATION

Appellant represented by: The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel


INTRODUCTION

The appellant is the widow of a Veteran who served on active
duty from May 1944 to May 1946.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2005 administrative rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Winston-Salem, North Carolina, which denied
the claim on appeal.

In March 2009, a travel board hearing was held before the
undersigned Veterans Law Judge at the Winston-Salem RO. A
transcript of the proceeding has been associated with the
record.


FINDINGS OF FACT

1. The Veteran died in September 1994 at the age of 68.
Cardiac arrest due to ASCVD was certified as the immediate
cause of death on his death certificate; diabetes mellitus,
osteomyelitis, and neuropathy were certified as the other
significant conditions contributing to death. The appellant
is his surviving spouse.

2. The Veteran had no diagnosis of any heart condition or
post traumatic stress disorder (PTSD) during service or
within one year after his discharge from service.

3. At the time of his death, the Veteran was not service-
connected for any conditions; nor had he sought service
connection for any condition; however, the Veteran could have
been service-connected for PTSD.

4. There is at least an approximate balance of positive and
negative evidence as to whether PTSD incurred in or
aggravated by military service contributed substantially or
materially to cause the Veteran's death.


CONCLUSION OF LAW

Resolving doubt in favor of the appellant, a disability
incurred in or aggravated by service caused or contributed
substantially or materially to cause the Veteran's death. 38
U.S.C.A. §§ 1110, 1310, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.303, 3.312 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist veterans
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2008). In light of the favorable decision herein as to the
sole issue on appeal, the Board finds that any deficiencies
in notice were not prejudicial to the appellant.

Service Connection for Cause of Death

Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2008). That
an injury or disease occurred in service is not enough; there
must be chronic disability resulting from that injury or
disease. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b) (2008). Service
connection may also be granted for any injury or disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease or
injury was incurred in service. 38 C.F.R. § 3.303(d) (2008).

To establish service connection for a disorder there must be:
(1) medical evidence of the current disability; (2) medical,
or in certain circumstances, lay evidence of the in-service
incurrence of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Gutierrez v. Principi 19
Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App.
247, 253 (1999)).

Service connection for PTSD specifically requires medical
evidence establishing a diagnosis of the disability, credible
supporting evidence that the claimed in-service stressor
actually occurred, and a link, established by medical
evidence, between the current symptomatology and the claimed
in-service stressor. See 38 C.F.R. § 3.304(f) (2008).

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 that 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. See 38 C.F.R. § 3.304(f)(1) (2008); see also, 38
U.S.C.A. § 1154(b) (West 2002 & Supp. 2008). Otherwise, the
law requires verification of a claimed stressor. Where a
determination is made that the Veteran did not "engage in
combat with the enemy," or the claimed stressor is unrelated
to combat, the Veteran's lay testimony alone will not be
enough to establish the occurrence of the alleged stressor.
See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v.
Brown, 9 Vet. App. 163, 166 (1996). In such cases, the
record must include service records or other credible
evidence that supports and does not contradict the Veteran's
testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994).
Moreover, a medical opinion diagnosing PTSD does not suffice
to verify the occurrence of the claimed in-service stressors.
See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet.
App. 128, 42 (1997).

To warrant service connection for the cause of a veteran's
death, the evidence must show that a disability incurred in
or aggravated by active service was the principal or
contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R.
§ 3.312(a) (West 2002 & Supp. 2008). 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. See 38
C.F.R. § 3.312(b) (2008). For a service-connected disability
to constitute a contributory cause of death, it must be shown
that it contributed 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; 38 C.F.R. § 3.312.

The regulations provide that service-connected diseases
involving active processes affecting vital organs should
receive careful consideration as a contributing cause of
death from the viewpoint of whether there were resulting
debilitating effects and general impairment of health to an
extent that would render the person materially less capable
of resisting the effects of the disease primarily causing
death. 38 C.F.R. § 3.312©(3). Moreover, there are primary
causes of death, which by their very nature are so
overwhelming that eventual death can be anticipated
irrespective of coexisting conditions. A service-connected
disability is not generally held to have accelerated death
unless such disability affects a vital organ and was itself
of a progressive or debilitating nature. 38 C.F.R. §
3.312©(4).

Medical evidence is required to establish a causal connection
between service or a disability of service origin and the
Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499,
502 (1993).

The debilitating effects of a service-connected disability
must have made the Veteran materially less capable of
resisting the fatal disease or must have had a material
influence in accelerating death. See Lathan v. Brown, 7 Vet.
App. 359 (1995).

In determining whether a veteran's service-connected
disabilities contributed to the cause of his death, the Board
has the duty to assess the credibility and weight to be given
to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed.
Cir. 1997). When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's death certificate reflects that he died in
September 1994 of cardiac arrest due to ASCVD. The appellant
contends that PTSD or other psychiatric disorder, incurred
during the Veteran's military service, substantially
contributed to or materially hastened the Veteran's death.

As an initial matter, the Board notes that the Veteran was
not service-connected for any condition at the time of his
death. Given that the Veteran was not service-connected for
a heart condition, PTSD, or other psychiatric condition, it
is necessary to determine whether service connection should
have been established for such.

The Board notes that according to the Veteran's personnel
records he was stationed aboard the U.S.S. Tyrrell from
December 1944 to April 1946, with an MOS of Ship Service Man
(Laundry). This is not a position normally associated with
combat; however, the Board notes that the Veteran received a
battlestar with his Asiatic-Pacific Campaign Medal. While
the Veteran was aboard the U.S.S. Tyrrell, the ship
participated in the invasion of Okinawa, from April 1 to
April 10, 1945. During the invasion, there is a well-
documented attempt by a Japanese pilot to crash his plane
into the Tyrrell. The records indicate that the Veteran
related the incident to his father immediately after service
(as documented in a 1948 treatment record) and noted that the
incident gave him a "terrible fright." In light of the
Veteran's reported statements as documented in treatment
records, and the official records of the Veteran's exposure
to a suicide attack aboard the U.S.S. Tyrrell, the Board
acknowledges that the Veteran was subject to an in-service
stressor that may be presumed to have occurred.

Even with a conceded in-service stressor, the evidence must
still establish by competent medical evidence that the
Veteran had a disability at the time of his death due to
those service events. See Gregory v. Brown, 8 Vet. App. 563,
567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19
(1999). As there is an approximate balance of the positive
and negative evidence as to whether he had PTSD due to
service, the Board concludes service connection would have
been warranted.

A review of the Veteran's service treatment records do not
indicate - nor is it contended - that the Veteran was
diagnosed with or treated for PTSD or other psychiatric
disorders in service or within one (1) year of discharge.
Post service medical records reflect that the Veteran was
hospitalized for an anxiety disorder in May 1948 and July
1952, for eight (8) and ten (10) days respectively. The
Board notes that efforts to obtain the Veteran's complete
medical records of treatment from 1948 to 1952 at the VA
medical center in Fayetteville, Arkansas were unsuccessful,
save two (2) records of hospitalization, noted above, and a
social worker's report of an interview with the Veteran's
father in May 1948. The report noted "since [the Veteran's]
discharge from service it is necessary for the mother to
awaken him often because he seems to be struggling with
battle dreams." The Veteran's father was interviewed, who
reported that the Veteran had related the incident aboard the
USS Tyrrell, and noted that the incident gave him a
"terrible fright." The social worker also documented
reports that the Veteran was depressed, despondent, and had
"spoken short to his mother several times and hurt her
feelings." The Veteran's father also asserted the Veteran
suffered from a stomach condition that had been diagnosed as
"due entirely to his nerves." The social worker did note,
however, that the father "either blocked on pertinent
information about the son's nervous condition or else the son
is not a very nervous case." The claims file is otherwise
silent as to treatment for PTSD or other psychiatric
disorder.

In support of her claim, the appellant submitted three (3)
letters from the Veteran's treating physician. The first
letter, dated in September 2004, stated, in relevant part:

[The Veteran] suffered from severe anxiety,
depression, and post traumatic stress disorder from
his combat experiences in World War II. His whole
life was marred by anxiety and depression and I
believe his untimely death due to coronary artery
disease was greatly affected by his anxiety. All
during his married life, after the war, his
relationships, his employment opportunities and his
general functioning was affected by his anxiety and
depression which he was never able to overcome.
[The Veteran] suffered early coronary artery
disease and died of a heart attack largely from his
anxiety from his war experiences.

The private physician's second letter, dated in March 2005,
reiterated that the Veteran "served faithfully during the
South East Asian campaign against Japan and suffered
posttraumatic stress and anxiety his entire life as a result
of that." The physician stated that his psychiatric
conditions contributed to his death because they often caused
the Veteran to deny his heart and diabetic conditions or to
comply with diet, exercise, or rehabilitation regimens. The
third letter, dated in March 2008, stated:

[The Veteran] suffered from severe post traumatic
stress disorder that made him die early because he
did not care for himself adequately, being afraid
of things, tests and diseases. He ignored his
illnesses and did not care for his diabetes and
heart disease well.

He suffered nightmares and was always anxious,
suffering from anxiety and PTSD, unable to muster
the strength to eat well, follow up, and generally
live easily he developed diabetes and heart
disease. Unable to bring himself to compliance he
died prematurely, I believe greatly affected by
post traumatic stress from his service days.

The Board observes that the crux of the appellant's argument
is that service connection should be established for PTSD and
that the cause of death was related to such. The Board notes
the absence of any contemporaneous treatment records
diagnosing the Veteran with PTSD. However, based on the
Veteran's personnel records, reported statements, and letters
from his treating physician, the Board concludes that service
connection for PTSD can be established. As discussed above,
the Board concedes an in-service stressor. Based on the
Veteran's private treating physician's letters, the Board
concludes that the Veteran had a diagnosis of PTSD at the
time of his death and the physician has linked that current
diagnosis to the Veteran's military service. The Board notes
that the physician provided some basis and rationale for his
conclusion.

Although the absence of actual treatment records reflecting a
diagnosis of PTSD during the Veteran's life certainly weighs
against the claim, the Board finds that the 1948 report
discussed above, which corroborates that the Veteran had a
breakdown shortly after service, and that he had described
the incidents aboard the USS Tyrrell at that time as
frightening, at least places the record in relative
equipoise. Thus, giving the appellant the benefit of the
doubt, the evidence supports that the Veteran could have been
service-connected for PTSD at the time of his death.

Furthermore, the Board also finds that the competent and
probative evidence of record supports the conclusion that the
Veteran's PTSD substantially and materially contributed to
his death. This conclusion is based on the letters,
discussed in detail above, from the Veteran's private
treating physician. The physician unequivocally stated that
the Veteran's PTSD and other psychiatric disorders materially
and substantially contributed to his death, primarily because
his psychiatric conditions often manifested in his denial of
his heart and diabetic conditions and noncompliance with
diet, exercise, and rehabilitation programs.

The Board acknowledges that the Veteran's certificate of
death does not list PTSD as a primary or contributory cause. [yours does!]

The Board notes, however, that the Veteran's private
physician completed and signed the certificate of death.
Thus, his subsequent letters serve only to supplement the
causes listed on the certificate of death and cannot be
viewed as contradicting the certificate.

In summary, the evidence shows that the Veteran could have
been service-connected for PTSD at the time of his death.
Further, the only medical evidence of record unequivocally
states that the Veteran's PTSD was a substantial and material
contributory factor in his death. As noted, the Board is
admittedly troubled that the claims file does not include
contemporaneous treatment records for PTSD and that the
contemporaneous record of the cause of the Veteran's death,
the certificate of death, does not list PTSD as a primary or
contributory factor. However, given the clear opinions
expressed by the Veteran's treating physician and other
evidence of record such as the 1948 report discussed above,
as well as the absence of any conflicting medical opinions,
the Board finds the benefit of the doubt doctrine to be
applicable. See Gilbert, supra.




ORDER

Service connection for the cause of the Veteran's death is
granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

Fascinating. I wonder how the physician worded the linkage to SC. It had to be "at least as likely as not".

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We can learn from this BVA case (what to do, and not do)! Your Nexus needs to be very well done, professional! ~Wings

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http://www4.va.gov/vetapp09/files3/0917791.txt

The Board observes that the only
medical evidence that indicates that his service-connected
anxiety disorder contributed to his death from colon cancer
is the death certificate certified by the coroner.

The Board notes, however, that the conclusion that anxiety disorder
contributed to death is unsupported by the contemporaneous
medical evidence of record. Notably, the only reference to
anxiety in the month preceding the Veteran's death is a note
on May 14, which described increased anxiety from caregiver
burden.

Moreover, the death certificate lists the appellant as the
coroner's informant, and there is no evidence that the
coroner's medical opinion was based on a review of the
contemporaneous medical records.

Therefore, the coroner's medical opinion as it pertains
to anxiety disorder as a contributory cause of death has
diminished probative value because it is unsupported by
the medical evidence of record and appears to be based on a history
provided solely by the appellant. See Black v. Brown,
5 Vet. App. 177 (1993) (an opinion that is based on history
furnished by the appellant that is unsupported by clinical
evidence is not probative); Wood v. Derwinski, 1 Vet.
App. 190, 191-92 (1991) (an opinion may be discounted if it
materially relies on a layperson's unsupported history as the premise for the opinion).

The Veteran's private physician, Dr. M. D., also provided
opinions regarding the Veteran's cause of death and
contributing factors. In a death summary
dated in July 2005, Dr. M. D. reported that the Veteran
expired from complications arising from colon cancer and lung
cancer, which were both primary causes. He noted that he was
admitted for delirium. These conclusions were supported by
the contemporaneous medical evidence; therefore, the July
2005 death summary from Dr. M. D. is persuasive because it is
consistent with the medical records.

Dr. M. D. provided two additional medical opinions regarding
contributory causes of death.

In April 2006, he stated that some of the Veteran's difficulties
with delirium could very well have been related to his posttraumatic
stress disorder (PTSD), which came from his days in the Airborne Service.

In October 2006, he indicated that at the end of his life, the
Veteran had some significant problems with delirium related
to medication for his multiple cancers. He added that this
was adversely influenced by his posttraumatic stress
syndrome. Here, Dr. M. D.'s opinions are not medically and
factually supported.

In fact, this physician's 2006 opinions
appear to be based solely on a desire to help the Veteran's
widow, the appellant. The Board points out that the medical
evidence of record fails to show that the Veteran was
diagnosed with, or treated for, PTSD at any time.

Moreover, the Veteran's military records reflect that he did not engage
in combat, and his service treatment records show that he was
hospitalized in early June 1944 when his friend was killed in
action. The Court has held that a bare conclusion, even one
reached by a medical professional, is not probative without a
factual predicate in the record. Miller v. Brown, 11 Vet.
App. 345, 348 (1998). Thus, the probative value of a medical
opinion is significantly lessened to the extent it is based
on an inaccurate factual premise, and a medical opinion based
on an inaccurate factual premise has no probative value.
Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Therefore,
because the record contains no evidence that the Veteran was
ever diagnosed with PTSD, along with the facts that
Dr. M. D.'s 2006 medical opinions conflict with his own July
2005 death summary report and end-of-life treatment records,
these private medical opinions are not accorded any great
probative weight.

The Board also points out that the fact that this private
physician may have treated the Veteran on a regular basis-
without more-does not add significantly to the probative
value of the 2006 opinions. The Court has expressly declined
to adopt a "treating physician rule" which would afford
greater weight to the opinion of a veteran's treating
physician over the opinion of a VA or other physician. See,
e.g., Winsett v. West 11 Vet. App. 420 (1998).

By contrast, the Board finds more probative the medical
opinion of a VA physician, who reviewed the claims file,
which contained the end-of-life treatment records. In a
December 2006 VA medical opinion, a VA physician opined that
the Veteran's service-connected conversion reaction or
anxiety disorder was less likely as not a contributing factor
or cause of his death.

He reasoned that the Veteran's death
from metastatic cancer was imminent, and the numerous
medications that he was on, in addition to the burden of
having metastatic disease, most likely contributed to his
delirium. This opinion was further supported by his review
of the claims file, citing records that the Veteran was in
the hospice program due to his cancer, was being treated with
narcotic and psychotropic medications, and was being followed
by a psychiatrist for significant episodes of delirium. The
Board finds that the December 2006 VA medical opinion is
persuasive because it was based on a review of the claims
file and contemporaneous medical evidence, which supported
the VA physician's medical rationale. See Nieves-Rodriguez
v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the
factually accurate, fully articulated, sound reasoning
for the conclusion that contributes to the probative value to a
medical opinion.)

Furthermore, the medical records
themselves provide persuasive evidence that the Veteran's
service-connected anxiety disorder did not contribute to his
cause of death, even though it is listed on his death
certificate. Rather, the records clearly show that the
Veteran experienced delirium as a result of narcotic pain
medication, and that the delirium subsided prior to his
death. Also, in December 2004, Dr. J. P. reported that the
Veteran's prognosis was very poor long term. Accordingly,
the appellant's claim for service connection for the
Veteran's cause of death must be denied.

The Board also notes that the Veteran's service treatment
records show no findings of treatment for colon, pulmonary,
or cardiovascular dysfunction, and post-service treatment
records first show colon cancer, lung cancer, and
hypertension many years after the Veteran's separation from
service. Similarly, the evidence of record contains no
opinion that colon cancer, lung cancer, or hypertension was
caused by or aggravated by any service-connected disability.
Therefore, service connection for the Veteran's cause of
death based on colon cancer, lung cancer, or hypertension is
also not warranted.

The Board acknowledges the appellant and her representative's
contentions that the Veteran's service-connected anxiety
disorder was a contributory cause of his death. However, the
record does not show that the appellant or her representative
has the medical expertise that would render competent their
statements as to the relationship between the Veteran's
military service, his service-connected anxiety disorder, and
his cause of death. These opinions alone cannot meet the
burden imposed by 38 C.F.R. § 3.312 with respect to the
relationship between events incurred during service, service-
connected disabilities, and the etiology of his fatal
disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993);
see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see
also 38 C.F.R. § 3.159(a) (2008).

The Board also has considered the articles submitted by the
appellant. Medical treatise evidence can, in some
circumstances, constitute competent medical evidence. See
Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38
C.F.R. § 3.159(a)(1) (competent medical evidence may include
statements contained in authoritative writings such as
medical and scientific articles and research reports and
analyses). Here, the medical articles submitted by the
appellant in April 2009 are general in nature and pertain
primarily to anxiety and psychological factors in relation to
hypertension. The Board finds that these documents lack
probative weight because they do not specifically address the
Veteran, to include his medical history documented in the
claims file. In a long line of cases, the Court has
consistently held that medical treatise evidence that is
generic and inconclusive as to the specific facts in a case
was insufficient to establish causal link. See, e.g.,
Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11
Vet. App. 314 (1998); ; Libertine v. Brown, 9 Vet. App. 521,
523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996).

As indicated above, in this case the Board finds the opinion
of the VA physician dispositive of the medical nexus
question. As the physician explained in detail the reasons
for his conclusions, which were based on consideration of the
record (for which he provided an accurate recitation of the
medical evidence in the claims file), the Board finds that
this opinion constitutes competent and persuasive evidence on
the matter upon which the claim turns. See Prejean v. West,
13 Vet. App. 444, 448-49 (2000); Gabrielson v. Brown, 7 Vet.
App. 36, 40 (1994).

For the foregoing reasons, the appellant's claim for service
connection for the Veteran's cause of death must be denied.
In arriving at this decision, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the claim,
that doctrine is not applicable. See 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990).

Wings you are wonderful! Thank you so much for that case law!

Yes, the VA has a copy of the death certificate.

Now here is a good question. Does that IMO have to be made by a famous doctor? My local professional already said that PTSD had a direct connection to my husband's death. He didn't say early death however in his statement. If his word will be enough, I can go back to him as ask for another statement that says 'early death' with a dot by dot connection, notarized of course. I have all the records to show the doctor, along with the statements of the other professionals who treated my late hubby and/or observed him over the years...

My spirit has been raised by your work, and I salute you~!

Wings is a research demon and a treasure to Hadit.

#@@#$%%!!

I hit the wrong button and just deleted my very long post! Drats! I'll re-write it again tonight. First things first, you need to locate Lathan v. Brown, 7 Vet. App. 359 (1995), and see if that case can be liberally construed as applied a colon cancer; and not narrowly applied to vital organ. I do not know if the colon is considered a vital organ ... More later. ~Wings

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I though this was very intelligent and well written on the part of CAVC Judge, Kramer DISSENTING - - read it closely. You need to STUDY 38 CFR 3.312 in it's entirety, as well as STUDY the regulations' application to contemporary case law --as provided below. ~Wings


USCAVC No. 93-289, Wray v. Brown, USCAVC No. 93-289 (1995)

KRAMER, Judge, dissenting:

As the majority correctly points out, one way of establishing service
connection for the cause of the veteran's death would be "if it were shown
that the [veteran's] service-connected disabilities 'contributed
substantially or materially' to cause death; 'that [they] combined to
cause death; that [they] aided or lent assistance to the production of
death.' See 38 C.F.R. 3.312( c)(1)."

While, admittedly, paragraphs ( c)(2) and ( c)(4) of 38 C.F.R. 3.312
throw a damper on the appellant's ability to use the veteran's static
service-connected disabilities resulting from musculoskeletal injuries as
a basis for demonstrating that such disabilities contributed substantially
or materially to cause or hasten the veteran's death, nevertheless, those
paragraphs are worded in terms of "generally," and thus do not establish a
strict rule. Thus, based on this standard, the evidence in this case
requires a remand.

There are three medical opinions of record which support the
appellant's contention that the veteran's service-connected disabilities
contributed to cause or hasten the veteran's death.

First, Dr. Richardson, who was the veteran's attending doctor at
the time of his death, wrote a July 1989 letter which stated as follows:

Although his death was presumed to be cardiac, [the veteran]
had a history of an old injury to his leg that occurred while
he was in the Army. [The veteran] was also very anxious and
suffered from insomnia for a good many years. I think it was
entirely possible that these conditions contributed to his demise.
R. at 161. The following notation was at the bottom of Dr. Richardson's
letter: "Addendum to death certificate." Ibid.

Second, Dr. Joyce wrote a January 1990 letter which stated as follows:
I treated [the veteran] for hypertension, diabetes mellitus,
pylorspasm [sic], multiple joint pain and anxiety. X-rays in
1985 revealed degenerative changes of left knee. It is my opinion
that these conditions could have contributed to his death on May 20, 1989. R. at 244.

Third, Dr. Williams wrote a May 1990 letter which stated as
follows:

[T]o a reasonable degree of medical certainty, it is my expert
opinion . . . that [the veteran's] chronic pain condition
resulting from his service[-]connected injury did indeed
contribute to the hastening of his death. R. at 251.

The majority relies on Dr. Abrams' January 1992 report to support the
Board's conclusion that the veteran's service-connected disabilities did
not substantially or materially contribute to cause or hasten the
veteran's death. However, a close examination of Dr. Abrams' report
reveals that his opinion cannot support the Board's conclusion.

Initially, it should be noted that Dr. Abrams was asked only whether the veteran's
service-connected disabilities "cause[d] or contribute[d] substantially to
the heart disorder which caused his death," R. at 583, but was not asked
whether the veteran's service-connected disabilities, irrespective of any
causal relationship to the heart disorder, contributed substantially or
materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312
( c)(1) ("[c]ontributory cause of death is inherently one not related to the
principal cause"). In addition, Dr. Abrams' report does not reflect any opinion
about whether the veteran's service-connected disabilities contributed to
cause or hasten the veteran's death, nor does the majority or the Board
point to any such statement.

For the reasons stated above, I would remand to the Board for a
statement of reasons or bases as to why it rejected the above-referenced
evidence in support of the appellant's claim, see Gabrielson, supra, and
for a supplemental independent medical expert opinion addressing whether
the veteran's service-connected disabilities contributed substantially or
materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1).

I found Lathan v Brown and am reading it. I will look for definition of 'vital organ'.

http://search.uscourts.cavc.gov/isysquery/...c3942f2d/5/doc/

The initial BVA denial contains many points-

the death certificate amended to include PTSD was given no weight at all by the BVA.

This is not unusual. The BVA sometimes accepts amended death certificates but many times they don't.

The addition of PTSD to the death certificate needs a full medical rationale before BVA would accept PTSD as copntributing to death.

Also your first denial:
http://www4.va.gov/vetapp06/files4/0620731.txt

states exactly why they rejected your medical opinion.

If you are attempting to get another medical opinion the doctor must state a full medical rationale as to why your husband's PTSD contributed to his cause of death.
The doctor should refer to any treatise or medical study as well as state his or her medical background that gives their opinion credibility.

I dont know how long you have to submit this evidence.

Do you have a deadline?

QUOTE (akwidow @ Oct 31 2009, 11:56 PM)

I found Lathan v Brown and am reading it. I will look for definition of 'vital organ'.

http://search.uscourts.cavc.gov/isysquery/...c3942f2d/5/doc/

Search CAVC for the exact term: "hasten the veteran's death"


Examples



1. USCAVC No. 93-289, Wray v. Brown (1995)

"... close examination of Dr. Abrams' report reveals that his opinion
cannot support the Board's conclusion. Initially,
it should be noted that Dr. Abrams was asked only whether the veteran's
service-connected disabilities "cause[d] or contribute[d] substantially to
the heart disorder which caused his death," R. at 583, but was not asked
whether the veteran's service-connected disabilities, irrespective of any
causal relationship to the heart disorder, contributed substantially or
materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312
( c)(1) ("[c]ontributory cause of death is inherently one not related to the
principal cause"). In addition, Dr. Abrams' report does not reflect any opinion
about whether the veteran's service-connected disabilities contributed to
cause or hasten the veteran's death, nor does the majority or the Board
point to any such statement.[/b] For the reasons stated above, I would remand to the Board for a
statement of reasons or bases as to why it rejected the above-referenced
evidence in support of the appellant's claim, see Gabrielson, supra, and
for a supplemental independent medical expert opinion addressing whether
the veteran's service-connected disabilities contributed substantially or
materially to cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1)."




2. USCAVC, No. 05-1469, Patterson v. Mansfield, (2007)


"The Board relied on Dr. Rudraraju's report to support its
conclusion that the veteran's service-connected disabilities did not
substantially or materially contribute to cause or hasten the veteran's
death. However, Dr. Rudraraju's report cannot support the Board's
conclusion. Dr. Rudraraju was asked only whether the veteran had
hypertension in service or whether his below-the-knee amputation caused
him to suffer from hypertension or other cardiovascular disease. R. at
383. He was not asked whether the veteran's service-connected
disabilities, irrespective of any causal relationship to the hypertension
or any other heart disorder, contributed substantially or materially to
cause or hasten the veteran's death. See 38 C.F.R. 3.312( c)(1)
("[c]ontributory cause of death is inherently one not
related to the principal cause"). Dr. Rudraraju expressed no
opinion about whether the veteran's service-connected disabilities
contributed to cause or hasten the veteran's death. The appellant argues
that Dr. Rudraraju's opinion was deficient because the opinion did
not address a key issue-whether the veteran's service-connected
disabilities "contributed substantially or materially" to cause
death. Appellant's Br. at 20-21. The Court agrees with the appellant
that Dr. Rudraraju's opinion is inadequate because it does not discuss
whether the appellant's service-connected disabilities contributed to his
death. Accordingly, a remand is appropriate because
the Board relied upon an inadequate medical opinion to deny the
appellant's claim. Barr v. Nicholson, 21 Vet.App. 303 (2007).

x
x
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I wholeheartedly agree with Berta, that the Coroner (as well as any other medical opinions on the Issue) should provide expert medical rationale as to why PTSD contributed to the cause of death.

However, keep this in mind,
a) the medical opinion must undertake a review of the medical or clinical record,
b) the medical opinion must cite the medical or clinical record
c) the medical examiner must provide his or her credentials, or state that he or she has expertise in the matter.

d) These questions need to be answered by the medical opinion:

1. Whether the veteran's service-connected disabilities
[PTSD, psychiatric impairment] "caused or contributed substantially
to his death"

2. Whether the veteran's service-connected disabilities
[PTSD, psychiatric impairment], irrespective of any causal relationship
to the Colon Cancer, contributed substantially or materially to cause or hasten the
veteran's death. See 38 C.F.R. 3.312( c)(1) ("[c]ontributory cause of death
is inherently one not related to the principal cause")

3. In order to be a contributory cause of death, it must be
shown that there were "debilitating effects" due to a
service-connected disability that made the veteran
"materially less capable" of resisting the effects of the
fatal disease or that a service-connected disability had
"material influence in accelerating death," thereby
contributing substantially or materially to the cause of
death. See Lathan v. Brown, 7 Vet. App. 359 (1995);
38 C.F.R. § 3.312©(1).

SSOC tells me I have 30 days to respond or the case will go back to the BVA. I have a year to submit new evidence either way. I planned to submit and respond both within 30 days.