Setsuko Daves v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-0189

SETSUKO DAVES, APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued January 10, 2007 Decided March 12, 2007 )

Daniel G. Krasnegor, of Washington, D.C., for the appellant.

Ella Krainsky, with whom Tim S. McClain, General Counsel; R. Randall Campbell, Assistant

General Counsel; and Brian B. Rippel, Deputy Assistant General Counsel, all of Washington D.C.,

were on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and HAGEL, Judges.

HAGEL, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring opinion.

HAGEL, Judge: Setsuko Daves, surviving spouse of veteran Gary A. Daves, appeals through

counsel an October 4, 2004, decision of the Board of Veterans' Appeals (Board) that (1) denied

entitlement to service connection for the cause of Mr. Daves's death, and (2) denied entitlement to

dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318. For the reasons set

forth below, the Board's decision will be vacated and the matter remanded for further adjudication.

I. BACKGROUND

Mr. Daves served on active duty in the U.S. Army from April 1971 to September 1978. He

married the appellant, Mrs. Daves, in November 1972. In May 2002, Mr. Daves was evaluated at

the Texoma Medical Center for chest pain. The medical report stated that the exact cause of his pain

was not clear, however, it noted that he had "abnormally high blood sugar" and that "uncontrolled

high blood sugar leads to early heart disease, strokes, nerve damage, eye damage, and kidney

damage." Record (R.) at 702. On July 22, 2002, Mr. Daves was found dead in his car at a highway

rest stop in Hardeman County, Texas. The car keys were in the ignition in the on position and the

responding police officer opined that "the driver knew something was the matter and pulled into the

rest stop, parked the vehicle and passed away." R. at 572. The police report indicated that "the

blood had pooled to [Mr. Daves's] lower legs and left hand." Id. The cause of Mr. Daves's death

was described as of "undetermined origin" and the manner of death was described as "natural." R.

at 483. No autopsy was performed. At the time of his death, Mr. Daves was service connected for

post-traumatic stress disorder at a 70% disability rating; migraine headaches at a 50% disability

rating; low-back syndrome at a 10% disability rating; and diabetes mellitus at a 20% disability rating,

for a combined rating of 90%, and he had been awarded a rating of total disability based on

individual unemployability (TDIU) in September 1997. See R. at 480.

In August 2002, Mrs. Daves filed a claim for DIC. In a September 2002 statement in support

of claim, she stated her belief that the evidence indicated that her husband suffered from the

"debilitating effects of his Diabetes to include cardiovascular involvement," and requested an

independent medical opinion. R. at 516. In January 2003, the Secretary requested a VA medical

opinion, and asked the examiner to "review the claims file, including the death certificate, incident

report, and medical evidence and indicate, if . . . it is as likely as not that one of [Mr. Daves's]

service- connected conditions caused or contributed to his death." R. at 576. The examiner was also

asked to indicate whether he could not give such an opinion, without resorting to speculation. In

January 2003, the examiner opined:

We have reviewed the C-file, the Death Certificate, and the police report. The cause

of death in this patient is unknown, and without an autopsy, cannot even be

speculated upon. There is thus no way to say whether or not it was the result of a

[service-connected] condition. The death, as described in the police report, is

consistent with dozens of different causes both natural and un-natural. The

possibilities run the gamut from heart attack, to pulmonary embolus, even poisoning.

We thus can only say that there is no evidence to support a relationship of the

patient's death to a service connected condition. But there is also no evidence to rule

it out. It is simply impossible to say.

R. at 640.

In May 2003, a VA regional office (RO) denied Mrs. Daves's claim for DIC after finding that

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"the evidence . . . does not indicate any of [Mr. Daves's] service[-]connected disabilities was of such

severity as to cause his death." R. at 657. The RO determined that an independent medical opinion

was not warranted because there is "simply no evidence to show what the cause of death may have

been." Id. In a May 2003 statement in support of claim, Mrs. Daves reiterated her request for an

independent medical opinion. A July 2003 Statement of the Case (SOC) again denied service

connection for the cause of her husband's death and entitlement to DIC.

She appealed this denial in July 2003, once again asking for an independent medical opinion

as to the cause of her husband's death. Mrs. Daves was afforded a Board hearing in April 2004, in

which she reiterated that her husband had not been feeling well and had chest pains and high sugar

levels in the months before his death, and that a doctor had explained to her that her husband's high

blood pressure was due to his diabetes.1 See R. at 722-25. The October 2004 Board decision now

on review denied Mrs. Daves's claim for service connection for the cause of her husband's death.

On appeal, Mrs. Daves argues that (1) the Secretary failed in his 38 U.S.C. § 5103A duty to

assist by not obtaining an autopsy after the VA medical examiner opined that "without an autopsy,

[the cause of Mr. Daves's death] cannot even be speculated upon" (R. at 640), and (2) the Board

failed to provide an adequate statement of reasons or bases because it did not "address whether or

not the duty to assist included obtaining further medical opinion, including an autopsy report."

Appellant's Brief (Br.) at 4-6.

The Secretary argues that he did not have a duty to obtain any further medical review because

Mrs. Daves "has not presented competent evidence of a causal relationship between her husband's

service[-]connected disabilities and his death." Secretary's Br. at 10. Therefore, the Secretary

contends, the duty to assist has been satisfied. The Secretary also points out that obtaining an

autopsy several years after Mr. Daves died would include disinterment of his body which, under

38 C.F.R. § 38.621 (2006), requires a request to be submitted by the family and would have to be

accomplished without expense to the Government; the Secretary further notes that Mrs. Daves has

1

See VA A D JU D ICATIO N P RO CED U RE M ANU AL (M21-1), pt. VI, para. 11.28(b)(1) (2005) (providing that the

complications of diabetes mellitus include "arteriosclerosis, including peripheral or cardiac complications" and

hypertension); D O RLAN D 'S I LLU STRATED M ED ICAL D ICTIO N ARY 506, 889 (30th ed. 2003) (stating that diabetes mellitus

can lead to "premature atherosclerosis with myocardial infarction or stroke syndrome" and defining hypertension as "high

arterial blood pressure").

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not undertaken any effort to seek disinterment. Additionally, the Secretary argues that, even after

disinterment, the Secretary cannot order an autopsy because an autopsy must be ordered by the

justice of the peace of the Texas county where Mr. Daves died.

The Secretary contends that the Board's statement of reasons or bases is adequate because

it fully discusses the Secretary's duty to assist and explains that the Secretary fulfilled this duty by

obtaining a medical opinion. The Secretary further argues that, because Mrs. Daves did not initiate

efforts to disinter the body or provide evidence to suggest that an autopsy was necessary or even

possible, the Secretary was under no duty to consider further action and the Board was not required

to provide a statement of reasons or bases for why it did not request an autopsy. See Secretary's Br.

at 16.

In reply, Mrs. Daves argues that she has not undertaken any effort to disinter the body

because the Secretary has not agreed to conduct an autopsy and that it would be illogical for her to

begin the process of disinterment in anticipation of VA's agreeing to do so. It is unclear exactly what

expenses are associated with the disinterment and autopsy of Mr. Daves; however, Mrs. Daves states

that she "understands that it is her responsibility to ensure that the proper steps are taken to obtain

consent and to pay for the disinterment." Appellant's Reply Br. at 3. At oral argument, Mrs. Daves's

counsel argued that, because the Secretary had a duty under 38 U.S.C. § 5103A(d) to provide a

medical opinion regarding the cause of Mr. Daves's death, and because a VA medical opinion stated

that such an opinion could not be rendered without an autopsy, the Secretary was required to provide

one.

II. APPLICABLE LAW

A. Duty to Assist

The Secretary has a general duty to "make reasonable efforts to assist a claimant in obtaining

evidence necessary to substantiate the claimant's claim." 38 U.S.C. § 5103A(a); see 38 C.F.R. §

3.159(c) (2006) (noting same); Littke v. Derwinski, 1 Vet.App. 90, 92 (1990) (holding that the

Secretary is required to assist a claimant in "developing pertinent evidence, from whatever source").

However, he is not required to provide assistance to a claimant "if no reasonable possibility exists

that such assistance would aid in substantiating the claim." 38 U.S.C. § 5103A(a)(2). In fulfilling

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his general duty to assist he may provide any assistance that he "considers appropriate." 38 U.S.C.

§ 5103A(g).

Moreover, in disability compensation claims, the Secretary must provide a medical

examination or opinion if there is competent evidence of a current disability, an indication that the

disability may be associated with service, and insufficient medical evidence to render a decision on

the claim. See 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006)

(analyzing requirements of section 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir.

2003). If the examination report does not contain sufficient detail, "it is incumbent upon the rating

board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2006); see

Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (finding that under 38 C.F.R. §§ 4.2 and 19.9(a), upon

assessing medical reports, "[i]f further evidence [or] clarification of the evidence . . . is essential for

a proper appellate decision," the Board should remand the case to the RO); Ardison v. Brown,

6 Vet.App. 405, 407 (1994) (stating that an inadequate examination frustrates judicial review).

The Board's determination that the Secretary has fulfilled his duty to assist generally is a

finding of fact that the Court reviews under the "clearly erroneous" standard set forth in 38 U.S.C.

§ 7261(a)(4). See Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "'A finding of fact is "clearly

erroneous" when although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)). The Board's ultimate conclusion on whether a medical examination or opinion is required

by 38 U.S.C. § 5103A(d)(2) "is reviewed under the 'arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law' standard of review." McLendon, 20 Vet.App. at 81. See 38

U.S.C. § 7261(a)(3)(A) (stating that the Court shall hold unlawful decisions by the Board that are

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").

B. Reasons or Bases

Decisions of the Board shall be based on all applicable provisions of law and regulation and

the Board shall provide a written statement of reasons or bases for its conclusions. See 38 U.S.C.

§ 7104(a), (d)(1). The Board is not required to discuss all of the evidence of record, see Dela Cruz

v. Principi, 15 Vet.App. 143, 149 (2001), but it cannot reject evidence favorable to the claimant

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without discussing that evidence, see Meyer v. Brown, 9 Vet.App. 425, 433 (1996), and its overall

statement "must be adequate to enable a claimant to understand the precise basis for the Board's

decision, as well as to facilitate review in this Court." Allday v. Brown, 7 Vet.App. 517, 527 (1995);

see Gilbert, 1 Vet.App. at 56-57. A remand of the matter for further adjudication generally is

appropriate when the statement of reasons or bases is inadequate, see Tucker v. West, 11 Vet.App.

369, 374 (1998), unless it "would result in this Court's unnecessarily imposing additional burdens

on the [Board and the Secretary] with no benefit flowing to the veteran." Soyini v. Derwinski,

1 Vet.App. 540, 546 (1991).

III. ANALYSIS

In the instant case, the Board's statement of reasons or bases concerning the Secretary's duty

to assist does not permit proper review. In January 2003, the Secretary attempted to assist Mrs.

Daves in substantiating her claim by seeking a medical opinion regarding the cause of death.

However, the medical reviewer stated that "without an autopsy, [Mr. Daves's cause of death] cannot

even be speculated upon." R. at 640. This statement could be read to mean either (1) an autopsy

conducted shortly after Mr. Daves's death was needed to make a determination and therefore the

examiner could not ever opine as to the cause of death, or (2) the examiner could opine regarding

the cause of Mr. Daves's death if an autopsy were conducted. The Board did not seek to clarify these

possibilities. See 38 C.F.R. § 4.2; see also Bowling and Ardison, both supra. Indeed, the Board

never discussed the need for an autopsy or whether a post-burial autopsy would be helpful to the

medical reviewer, nor did it address whether an autopsy falls under the purview of the Secretary's

section 5103A duty to assist.

When the Secretary's duty to provide a medical examination is triggered, this duty includes

the requirement that the Secretary provide reasonable tests and other examinations necessary to

render a meaningful medical opinion. See Green v. Derwinski, 1 Vet.App. 121, 123-124 (1991).

Where, as here, the medical examiner specifically states that a medical opinion cannot be provided

without information not currently available, the Secretary's duty to assist requires that the Secretary

determine whether that information may be reasonably obtained, and if so, to make efforts to obtain

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it and seek an additional medical opinion which considers the relevant information. See Green, 1

Vet.App. at 123-24.

Here, the Board failed to address whether an autopsy to determine the cause of death could

be reasonably obtained or whether an autopsy would even be helpful in this case. Because the Board

relied on the January 2003 medical examination without addressing the examiner's statement that an

autopsy was necessary to determine Mr. Daves's cause of death, the Court cannot determine whether,

as the Secretary argues, there is no duty to provide an autopsy in this case.

Additionally, the record does not reveal that Mrs. Daves was ever informed that, because no

autopsy had been performed, the Secretary was unable to procure a medical opinion as to cause of

death. Communication between VA and a claimant is a critical component of the adjudication

process. See Dingess v. Nicholson, 19 Vet.App. 473, 491 (2006). Here, both the May 2003 RO

decision and the July 2003 SOC state that an autopsy had not been performed. However, neither

decision specifically states that the ability of the medical reviewer to provide an opinion on the cause

of Mr. Daves's death was impeded by this lack of an autopsy. See 38 C.F.R. § 3.103(b). Due process

requires the Secretary to notify the claimant prior to the adjudication of the claim of the Secretary's

inability to obtain evidence that the Secretary has undertaken to obtain, so that the claimant has a fair

and reasonable opportunity to try and secure it or procure alternative evidence at a time when such

information will be most useful to the adjudicator. See Prickett v. Nicholson, 20 Vet.App. 370, 381

(2006) ("[W]here an applicable statute or regulation is silent as to whether a particular procedural

process is required, such process may be implicitly required when 'viewed against [the] underlying

concepts of procedural regularity and basic fair play' of the VA benefits adjudicatory system."

(quoting Thurber v. Brown, 5 Vet.App. 119, 123 (1993), and Gonzalez v. United States, 348 U.S.

407, 412 (1955))).

Further, the Board's statement of reasons or bases regarding its assessment of the January

2003 VA medical opinion is confusing. For example, although this medical opinion is deemed

speculative by the Board and considered "non-evidence," the Board also concludes that this medical

opinion was the "only medical evidence of record that bears directly on the question of what

constituted the cause" of Mr. Daves's death. R. at 16-17. There is no explanation of how the

medical opinion can be viewed as both non-evidence and the only medical evidence of record.

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Finally, the Board inadequately explains its conclusion "that a preponderance of the evidence

of record in this case is against a finding that the cause of [Mr. Daves's] death was incurred in service

or is otherwise related thereto" (R. at 17), when, as the medical reviewer opined, "there is no

evidence to support a relationship of the patient's death to a service[-]connected condition. But there

is also no evidence to rule it out. It is simply impossible to say." R. at 640. See also 38 U.S.C.

§ 5107(b) ("When there is an approximate balance of positive and negative evidence regarding any

issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to

the claimant."); 38 C.F.R. § 3.102 (2006) (providing that reasonable doubt will be resolved in favor

of the claimant); cf. Mittleider v. West, 11 Vet.App. 181, 182 (1998) (requiring the Board to discuss

the applicability of 38 C.F.R. § 3.102 and VA's own interpretation of the regulations set forth at

61 Fed.Reg. 52,698 (Oct. 8, 1996) that, when effects of service-connected and non-service-connected

disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be

attributed to the service-connected disabilities). In sum, the Board's statement of reasons or bases

is neither helpful to Mrs. Daves nor facilitative of review; remand is appropriate. See Allday,

Gilbert, and Tucker, all supra.

IV. CONCLUSION

Accordingly, the Board's October 4, 2004, decision is VACATED and the matter is

REMANDED for further adjudication. On remand, Mrs. Daves may present additional evidence and

argument in support of the matter remanded, and the Board must consider any evidence and

argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The matter is to be

provided expeditious treatment on remand. See 38 U.S.C. § 7112.

KASOLD, Judge, concurring: Although I concur in the majority's decision that remand is

appropriate because the Board's statement of reasons or bases is inadequate, I write separately to

expand upon an issue that is not fully discussed here and that should be addressed on remand.

Although Mrs. Daves argues that the Secretary had a duty under 38 U.S.C. § 5103A(d) to provide

a medical opinion regarding the cause of her husband's death, she provides no authority for her

proposition that section 5103A(d), which explicitly applies to disability compensation claims, also

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applies to DIC claims. The Secretary does not concede that section 5103A(d) is applicable to DIC

claims and has requested permission to submit supplemental briefing on the issue should it be

determinative in this case. Given the posture of the case, such briefing is not now warranted.

Nevertheless, the significance of this issue cannot be overstated. Should it be determined that

an autopsy reasonably would assist a medical professional in opining as to the cause of the death of

Mr. Daves, any duty to secure an autopsy may vary depending on whether the January 2003 medical

opinion was sought by the Secretary pursuant to the section 5103A(d) mandatory duty to provide a

medical opinion in disability compensation claims, or whether it was sought pursuant to the

Secretary's general duty to undertake "reasonable efforts to assist" under section 5103A(a) and his

discretionary duty to provide any assistance he considers appropriate under 5103A(g).

Otherwise stated, the effort required to be undertaken to assist in securing a medical opinion

or examination that is required to be provided by law may differ from that which is required when

the medical opinion or examination is being sought as a matter of discretionary assistance. Compare

38 U.S.C. § 5103A(d) (providing that the Secretary "shall" secure a medical opinion or examination

when certain criteria are met) with 38 U.S.C. § 5103A(a) (providing that the Secretary "shall make

reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate" the claim) and

38 U.S.C. § 5103A(g) (providing that the Secretary is not precluded by anything in section 5103A

from providing any assistance in substantiating a claim that he "considers appropriate"); see also

Green v. Derwinski, 1 Vet.App. 121, 123-24 (1991) ("It is equally impossible to square the

Secretary's duty to assist a claimant . . . with the Department of Veterans Affairs' (VA) failure to

follow up the suggestion by the examining physician that a review of the veteran's records 'might

help clarify the diagnostic doubt' and that additional diagnostic studies might be in order if such

doubt remains."). The Board's statement of reasons or bases does not address this issue; for this

reason, as well as those more fully articulated in the opinion of the Court, remand is appropriate.

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