Veteranclaims’s Blog

June 22, 2020

Single Judge Application; the Secretary concedes that because this case involves a claim for DIC, the Board should not have applied section 5103A(d); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) discussed the Secretary’s duty to provide a medical opinion in the context of a DIC claim. In that case, the Secretary argued that the duty to provide a medical examination under 38 U.S.C. § 5103A(d) is limited to claims for disability compensation, which does not encompass claims for DIC benefits. Id. at 1322. The Federal Circuit agreed, but held that the Secretary may have a duty to provide a medical opinion in connection with a DIC claim under section 5103A(a) as part of its duty to assist. Id. at 1322;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1856
GUADALUPE LAMBAREN, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Guadalupe Lambaren, through counsel, appeals a January
16, 2019, Board of Veterans’ Appeals (Board) decision in which the Board denied entitlement to
service connection for the cause of the veteran’s death. Record of Proceedings (R.) at 5-11. This
appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s
January 16, 2019, decision and remand the matter on appeal for further proceedings consistent
with this decision.
I. BACKGROUND
The veteran had active service from July 1982 to July 1985. R. at 21. His certificate of
death shows that he passed away on October 22, 2014, R. at 222, and the coroner’s report reflects
that his cause of death was atherosclerotic cardiovascular disease, with hypertensive heart disease
and cardiomegaly listed as the other conditions. R. at 232-33. At the time of his death, the veteran
had no service-connected disabilities. R. at 5.
Appellant, the veteran’s surviving spouse, filed for dependency and indemnity
compensation (DIC), accrued benefits, and death pension in November 2014. R. at 331-35. In the
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December 2014 decision, the regional office (RO) denied the appellant’s claim because the
evidence shows that she and the veteran had divorced, and therefore, she cannot be recognized as
the surviving spouse of the veteran. R. at 322-23. The appellant filed a Notice of Disagreement
(NOD) with this decision in April 2015, along with several documents that show that she and
appellant were still legally married when he died. R. at 313-14. In a June 2015 Statement of the
Case (SOC), the decision review officer (DRO) denied the claim of entitlement to DIC benefits on
the basis that the death certificate at the time showed that the veteran’s cause of death was “pending
investigation.” R. at 283, 258-84. Appellant perfected her appeal of this claim in July 2015 (R. at
237), and along with her Substantive Appeal she submitted a complete copy of the coroner’s report
detailing the cause of the veteran’s death. R. at 228-34. In the December 2015 SSOC, the RO
continued to deny the service-connection claim for the cause of the veteran’s death on the basis
that the evidence did not demonstrate a connection between the veteran’s military service and his
death. R. at 36-41.
In the March 2016 statement in support of the claim for service connection for
post-traumatic stress disorder (PTSD), the appellant explains that while serving aboard the U.S.S.
Sacramento, the veteran witnessed an incident in which a fellow serviceman was crushed and
killed by the ship’s anchor fluke. R. at 25-26. The appellant maintains that as a result of this inservice
stressor, the veteran developed a psychiatric disability that contributed to his cause of
death. Id. Along with this application, she submitted an October 1983 memorandum that discusses
the details surrounding this incident, R. at 19-20; photographs of the ambulance call card and
anchor, R. at 17-18; and a newspaper article describing this incident, R. at 16.
The evidence of record includes treatment records dated in June 2011 from the Orange
County Health Care Agency, which reflect that the veteran underwent a mental status examination
after his daughter contacted the police because he had a gun and was threatening to commit suicide.
R. at 84. The veteran was described as anxious, hypertalkative, and cooperative. R. at 83-84.
June 2011 medical records from the same agency reflect that the veteran underwent an initial
psychiatric evaluation that produced diagnoses of alcohol dependence, adjustment disorder, and
anxiety disorder. R. at 92. Additional records from the Orange County Correctional Medical
Services department reflect that the veteran had been arrested and at the time made suicidal
statements to the officer questioning him. R. at 175-76.
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In the January 2019 decision, the Board determined that the evidence of record is against
a finding that the veteran’s atherosclerotic cardiovascular disease, hypertensive heart disease, and
cardiomegaly manifested in service, or was proximately due to or the result of service. R. at 5.
Thus, the Board concluded that the record lacked evidence supporting the appellant’s serviceconnection
claim for the cause of the veteran’s death, and the Board ultimately denied service
connection for the cause of the veteran’s death. R. at 5-10.
II. ANALYSIS
Pursuant to 38 U.S.C. § 1310, DIC is paid to the surviving spouse of a qualifying veteran
who died from a service-connected disability. A death will be considered service connected where
a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R.
§ 3.312(a) (2019). A 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.” 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have
“contributed substantially or materially” to death, “combined to cause death,” or “aided or lent
assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). A service-connected disability
involving an active process affecting a vital organ may be considered a contributory cause of death,
even when the primary cause of death appears “unrelated” to that disability, if the
service-connected disability results in “debilitating effects and general impairment of health to an
extent that would render the person materially less capable of resisting the effects of other disease
or injury primarily causing death.” 38 C.F.R. § 3.312(c)(3).
In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) discussed the Secretary’s duty to provide a medical opinion in the context of a DIC claim. In that case, the Secretary argued that the duty to provide a medical examination under 38 U.S.C. § 5103A(d) is limited to claims for disability compensation, which does not encompass claims for DIC benefits. Id. at 1322. The Federal Circuit agreed, but held that the Secretary may have a duty to provide a medical opinion in connection with a DIC claim under section 5103A(a) as part of its duty to assist. Id. at 1322.
In Wood v. Peake, the Federal Circuit
held that section 5103A(a) “excuses VA from making reasonable efforts to provide such
assistance, if requested, when ‘no reasonable possibility exists that such assistance would aid in
substantiating the claim.'” 520 F.3d 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C.
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§ 5103A(a)(2)). Where the Board has incorrectly applied the law, remand is appropriate for the
Board to “make the [ ] required determinations, under the correct legal standards.” Tucker v. West,
11 Vet.App. 369, 374 (1998).
The appellant contends that the Board erred when it used the wrong standard in determining
whether she is entitled to a medical opinion as part of the development of her case. Appellant’s
Brief (Br.) at 4. In the January 2019 decision, the Board acknowledged the appellant’s contention
that the veteran suffered from PTSD due to his exposure to in-service stressor, and this psychiatric
disorder contributed to his death. R. at 7. However, according to the Board, although the medical
evidence of record documents the veteran’s history of alcohol abuse, “it does not document a
diagnosis of PTSD nor does it contain any statements by the [v]eteran or other medical
professionals suggesting that any acquired psychiatric disorder or alcohol abuse problem was
related to the claimed in-service stressor.” Id. Using the standard delineated under McLendon v.
Nicholson, 20 Vet. App. 79 (2006) and 38 U.S.C. § 5103A(d)(2), the Board determined that though
a VA medical opinion had not been obtained, “one is not required before adjudication of this
appeal.” Id. According to the Board, aside from the fact that “there is no evidence indicating that
any mental health disability caused or contributed to the [v]eteran’s death,” there is also “no
evidence other than the [a]ppellant’s own assertion indicating that any mental health disorder may
be associated with the [v]eteran’s service, to include the stressor reported by the [a]ppellant.” Id.
Appellant maintains that the Board erred when it failed to provide a medical opinion “as
part of the development of the claim because it held that the evidence did not fit the requirements
for necessitating a medical opinion based on the test laid out in 38 U.S.C. § 5103A(d)(2) and this
Court’s holding in McLendon v. Nicholson.” Id. at 5. According to appellant, similar to the Board
in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Board here “used the wrong test for
determining whether a claimant was entitled to a medical opinion to determine if the
servicemember’s cause of death was related to his active duty.” Id. The Secretary concedes that because this case involves a claim for DIC, the Board should not have applied section 5103A(d)
in determining whether a medical opinion is necessary. Secretary’s Br. at 4. However, the Secretary
maintains that the Board did not commit prejudicial error when it determined that a medical
opinion was not warranted to decide the case under 38 U.S.C. § 5103A(d) instead of 38 U.S.C.
§ 5103A(a). Id. According to the Secretary “the evidence of record did not demonstrate that a
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reasonable possibility existed that providing a medical opinion would aid in substantiating
[appellant’s] claim.” Id.
The parties are correct that the Board erred in applying section 5103A(d). See DeLaRosa
v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (acknowledging that the plain language of section
5103A(d) specifically limits its provisions to “claims for disability compensation,” and thus it does
not apply to DIC claims). Instead, the Board should have applied the more general duty-to-assist
provisions found in section 5103A(a)(1), (2), and (3), which require the Secretary to assist a
claimant unless “no reasonable possibility exists that such assistance would aid in substantiating
the claim.” See id.; Wood, 520 F.3d at 1347.
The appellant contends that the veteran developed a psychiatric disorder after witnessing a
fellow serviceman being crushed by an anchor, and that his psychiatric disorder contributed to his
atherosclerotic cardiovascular disease that caused his death. Appellant’s Br. at 3. The Board’s
error in applying the wrong legal standard frustrates judicial review because based on the Board’s
conclusion, it is unclear whether it found a reasonable possibility an examination would help
substantiate appellant’s claim. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
(1995) (requiring the Board to include in its decision a written statement of the reasons or bases
for its findings and conclusions on all material issues of fact and law presented on the record; that
statement must be adequate to enable an appellant to understand the precise basis for the decision,
and to facilitate informed review in this Court).
This Court is required to consider whether an error committed by the Board is prejudicial.
See Shinseki v. Sanders, 129 S.Ct. 1696, 1708 (2009) (holding that this Court must take due
account of the rule of prejudicial error). However, in this case, because the Board applied the
wrong legal standard to the evidence of record, any determination as to prejudice would require
speculation. Taking into consideration appellant’s lay statements, the documents she submitted in
support of her contentions, as well as the medical records documenting appellant’s psychiatric
symptoms and diagnoses, it is unclear to the Court how “no reasonable possibility exists” that a
medical examination “would aid in substantiating the claim.” 38 U.S.C. §§ 5103A(a)(2).
Accordingly, the matter must be remanded for the Board to apply the proper standard in the first
instance, to determine whether an examination is warranted under 38 U.S.C. § 5103A(a), and to
provide an adequate statement of reasons or bases for its decision. 38 U.S.C. § 7104(d)(1).
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Accordingly, the Court will set aside the Board’s decision and remand the matter so that the Board
may apply the proper standard. See Tucker, 11 Vet.App. at 374.
Given this disposition, the Court need not, at this time, address any other arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him”). The appellant is free on remand to submit additional evidence and
argument, including the arguments raised in her briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s January 16, 2019, decision is VACATED and the matter is REMANDED to
the Board for further proceedings consistent with this decision.
DATED: June 19, 2020
Copies to:
Nicholas L. Phinney, Esq.
VA General Counsel (027)

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