Citation Nr: 0716805 Decision Date: 06/06/07 Archive Date: 06/18/07 DOCKET NO. 04-13 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of death of the veteran. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD C. Palmer, Associate Counsel INTRODUCTION The veteran had active service from November 1961 to February 1966. The appellant is the veteran's widow. This matter currently arises before the Board of Veterans' Appeals (Board) following a vacate order issued in December 2006. It is noted that the Board vacated its prior January 2006 decision that denied the issue on appeal after the appellant submitted additional evidence to the Oakland Regional Office (RO) before the January 2006 Board decision was issued and within 90 days of the certification letter. This matter was originally on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) RO in Oakland, California. In January 2007, the Board requested a medical expert opinion from a VA psychiatrist (J.S., M.D.) to address various questions involved in the appellant's appeal and such opinion was received in March 2007. The Board provided the appellant with a copy of the opinion in March 2007. FINDINGS OF FACT 1. The appellant has been notified of the evidence necessary to substantiate her claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The evidence of record demonstrates a causal relationship between the cause of the veteran's death and an incident of his military service. CONCLUSION OF LAW The cause of the veteran's death was incurred as a result of an incident of service. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.304(f), 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the full grant of benefits sought on appeal in this decision, no further notification or assistance is necessary to develop facts pertinent to this claim. Any notice deficiency with respect to the appellant's claim will be remedied by the AOJ when effectuating the award of benefits. II. Legal Criteria Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected or compensable disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2006). In order to establish service connection for the 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). III. Analysis The appellant contends that the veteran suffered from post- traumatic stress disorder (PTSD) due to traumatic events he experienced during his naval service in the Vietnam War (e.g., bagging and transporting the corpses of U.S. soldiers) which ultimately led the veteran to take his own life in December 2000. In regard to the first criterion, the Board notes that the record clearly shows evidence of the veteran's death in December 2000. Specifically, the Certificate of Death with Amendment and autopsy report reveal that the veteran committed suicide by carbon monoxide intoxication on or after December 8, 2000, with no evidence that natural disease contributed to his death. In regard to the second criterion, the Board observes that service-connection was not in effect for any disability, to include PTSD, at the time of the veteran's death; however, the evidence shows that the veteran suffered from PTSD as a result of his Vietnam service, as will be explained in greater detail below. The Board notes that service connection for PTSD is warranted when there is evidence of: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (2006); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2006). After reviewing the veteran's complex psychiatric history as documented in the claims folder, Dr. J.S. concluded in his March 2007 opinion that it was more likely than not that the veteran suffered from PTSD and that his PTSD was more likely than not caused by his claimed Vietnam stressor event. Although the claimed Vietnam stressor event of bagging and transporting the bodies of deceased soldiers has not been specifically verified, such duties are consistent with the circumstances of the veteran's service aboard the U.S.S. Whetstone during the Vietnam War as the Dictionary of American Naval Fighting Ships (DANFS) notes that the ship was called upon to help transport men and material from Vietnam across the Pacific during that time. Thus, the Board concludes that it is likely that the veteran participated in the bagging and transporting of deceased soldiers during his military service and that his claimed stressor event actually occurred. In regard to the third criterion, the Board further notes that there is medical evidence of a nexus between the veteran's PTSD and his death. Indeed, Dr. J.S. opined in his March 2007 opinion that the veteran committed suicide as a direct result of his ongoing psychiatric condition which should be classified as PTSD. Based on the foregoing, service connection for the cause of the veteran's death is warranted. ORDER Entitlement to service connection for the cause of death of the veteran is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs