Setsuko Daves v. R. James Nicholson

21 Vet. App. 46, 2007 U.S. Vet. App. LEXIS 439
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 12, 2007
Docket05-189
StatusPublished
Cited by31 cases

This text of 21 Vet. App. 46 (Setsuko Daves v. R. James Nicholson) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Setsuko Daves v. R. James Nicholson, 21 Vet. App. 46, 2007 U.S. Vet. App. LEXIS 439 (Cal. 2007).

Opinions

On Appeal from the Board of Veterans’ Appeals

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-trau-matie stress disorder at a 70% disability rating; migraine headaches at a 50% disability rating; low-back syndrome at a 10% disability rating; and diabetes melli-tus 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 [49]*49even 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-natu-ral. The possibilities run the gamut from heart attack, to pulmonary embo-lus, 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 “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 ser-viee[-]eonneeted 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 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 [50]*50ordered 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.

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Cite This Page — Counsel Stack

Bluebook (online)
21 Vet. App. 46, 2007 U.S. Vet. App. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/setsuko-daves-v-r-james-nicholson-cavc-2007.