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Davidson v. Shinseki

United States Court of Appeals for the Federal Circuit

September 14, 2009, Decided

2009-7075

Opinion

 [*1313]  LINN, Circuit Judge.

Bertha G. Davidson ("Ms. Davidson") appeals a decision of the United States Court of Appeals for Veterans Claims ("Veterans Court"), which affirmed a decision of the Board of Veterans' Appeals ("Board") finding that Ms. Davidson's husband did not die from a service-connected or compensable disability. In re Davidson, No. 02-16 322 (Bd. Vet. App. June 28, 2007) ("Board Op."), aff'd, Davidson v. Shinseki, No. 07-2070, 2009 U.S. App. Vet. Claims LEXIS 215  [*1314]  (Vet. App. Mar. 5, 2009) [**2]  ("CAVC Op."). Because the Veterans Court ignored the precedent of this court and incorrectly interpreted 38 U.S.C. § 1154 to require a medical opinion to prove nexus between a veteran's death and in-service disease, we vacate and remand.

I. BACKGROUND

Ms. Davidson is the surviving spouse of Grant J. Davidson ("Mr. Davidson"), who served on active duty in the United States Army from 1967 to 1972, including combat service in Vietnam. 2009 U.S. App. Vet. Claims LEXIS 215, CAVC Op. at 1. Medical records showed that Mr. Davidson suffered from anxiety both before and during his service. 2009 U.S. App. Vet. Claims LEXIS 215, [WL] at 1-2. On July 8, 1973, Mr. Davidson drowned while swimming with his cousins at a pool that was part of a recreation facility operated by the company for which he then worked. 2009 U.S. App. Vet. Claims LEXIS 215, [WL] at 2; see also J.A. 111. Mr. Davidson's death certificate listed the immediate cause of death as "[d]rowning," and indicated that his death was "[a]ccidental," rather than the result of suicide, homicide, or natural causes. J.A. 58.

In 1975, Ms. Davidson submitted an initial claim for entitlement to dependency and indemnity compensation, death pension, and accrued benefits. 2009 U.S. App. Vet. Claims LEXIS 215, CAVC Op. at 2. The Department of Veterans Affairs ("VA") denied her claim, and the  [**3] Board affirmed, concluding that the accidental drowning death of Mr. Davidson was not service connected. Id. Ms. Davidson applied to reopen the claim in 1999, and, in 2005, the Board reopened the claim for further development of the record concerning the cause of Mr. Davidson's death. Id. A VA psychiatrist reviewed the medical record and concluded that it was not likely that Mr. Davidson committed suicide, and that "it is not at least as likely as not that, at the time of his death, the veteran was suffering from [an] acquired psychiatric disability that had its clinical onset in the service and caused or contributed materially in producing his demise." J.A. 146. Ms. Davidson, however, submitted her own written and oral testimony to the Board, in which she stated her belief that Mr. Davidson had committed suicide as a result of a mental disorder related to his military service. Board Op. at 13-14. The Board credited the VA psychiatrist's testimony and concluded that Ms. Davidson was "not competent to provide a probative (persuasive) opinion on a medical matter such as the etiology of a disability." Id. at 14. The Board therefore found that Mr. Davidson's death was accidental rather  [**4] than the result of suicide, and that his anxiety disorder did not cause or materially contribute to his death. Id. at 3. Thus, the Board denied entitlement to service connection. Id. at 15.

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581 F.3d 1313 *; 2009 U.S. App. LEXIS 20381 **

BERTHA G. DAVIDSON, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Subsequent History: On remand at, Remanded by Davidson v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 257 (U.S. App. Vet. Cl., Feb. 26, 2010)

Prior History:  [**1] Appeal from the United States Court of Appeals for Veterans Claims 07-2070, Judge Ronald M. Holdaway.

Davidson v. Shinseki, 2009 U.S. App. Vet. Claims LEXIS 215 (U.S. App. Vet. Cl., Mar. 5, 2009)

Disposition: VACATED AND REMANDED.

CORE TERMS

Veterans, disease, nexus, aggravated, disability, appeals, suicide

Military & Veterans Law, Veterans, General Benefits, General Overview, Appeals & Review, US Court of Appeals for Veterans Claims, Claim Procedures, Compensation for Service Connected Death & Disability, Compensation for Service Connected Death & Disability, Dependency & Indemnity Compensation, US Board of Veterans Appeals