Citation Nr: 0726299 Decision Date: 08/22/07 Archive Date: 08/29/07 DOCKET NO. 99-21 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for multiple sclerosis for accrued benefits purposes. 2. Entitlement to service connection for the cause of the veteran's death. 3. Entitlement to Survivors and Dependents Education Assistance (DEA) pursuant to 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1971. He died on September [redacted], 1998. The appellant is his surviving spouse. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2001, November 2003, and August 2005, the Board remanded these matters to the RO for further development and adjudicative action. FINDINGS OF FACT 1. The veteran died on September [redacted], 1998, the cause of his death was possible cerebrovascular vascular accident due to or as a consequence of multiple sclerosis due to or as a consequence of multiple decubitus ulcers. 2. At the time of his death, the veteran's claim of entitlement to service connection for multiple sclerosis was pending. 3. The veteran's in-service symptoms were more likely than not due to multiple sclerosis, which in turn caused or contributed to the cause of the veteran's death. 4. The appellant is the surviving spouse of the veteran who died of a service-connected disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the competent evidence indicates that the veteran's multiple sclerosis was incurred during service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West. 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2006). 2. The criteria for payment of accrued benefits based on a claim of entitlement to service connection for multiple sclerosis have been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2006). 3. Service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2006). 4. The requirements for entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 have been met. 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim for accrued benefits is based on the veteran's claim for entitlement to service connection for multiple sclerosis which was pending at the time of his death. He died September [redacted], 1998, before final action on his appeal could be completed. It was contended that the veteran developed multiple sclerosis while on active duty. The appellant also contends that the veteran's death was the result of multiple sclerosis. Because this decision effects a complete grant of the benefit sought on appeal, appellate review of this claim may be conducted without prejudice to the veteran, Bernard v. Brown, 4 Vet. App. 384 (1993), and it is unnecessary to analyze the impact of the regulations defining VA's duty to assist. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. Moreover as the appellant has been granted benefits the RO will address the matter of effective date on transfer of the case to the agency of original jurisdiction. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accrued Benefits The law and regulations governing claims for accrued benefits provides that, upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of his death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). Although the appellant's claim for accrued benefits in this appeal is separate from the claim for service connection that the veteran filed prior to his death, the accrued benefits claim is "derivative of" the claim for service connection and, by statute, the appellant takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). The evidence in the file must establish entitlement to the benefit sought in an accrued benefits case at the date of death. 38 U.S.C.A. § 5121(a). The Board notes that this includes VA medical records that were generated any time prior to the veteran's death, regardless of whether they were physically in the file at the time of death, as VA is deemed to have constructive notice of all records generated by its agency. Ralston v. West, 13 Vet. App. 109, 113 (1999) (entitlement to accrued benefits must be determined based on evidence that was either physically or constructively in the file at the time of the veteran's death); see Bell v. Derwinski, 2 Vet. App. 613 (1992). In this regard, as stated above, the Board notes that the veteran had perfected an appeal of entitlement to service connection for multiple sclerosis prior to his death in September 1998. As this claim was pending at the time of the veteran's death and because the appellant had filed a timely accrued benefits claim, the issue now becomes whether the evidence either physically or constructively in the file at the time of the veteran's death supported a grant of service connection for multiple sclerosis. Generally, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted for a disease first diagnosed after service when all of the evidence establishes that the disease was incurred in service. Id. In this case, the Board finds that the evidence supports a grant of service connection for multiple sclerosis. With regard to the elements necessary to establish service connection, multiple sclerosis has been well documented since at least 1988. Thus, the requirement that there be a current disease is satisfied. Because multiple sclerosis is a chronic disease, the presence of that disease to a compensable degree in service or within seven years after service is sufficient to establish service connection. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There is conflicting evidence as to when exactly multiple sclerosis was manifested. During service the veteran was seen with complaints of headaches, stiffness in the neck, and sensation of numbness in the calves. A diagnosis of meningitis was considered. A brain photo scan was considered normal although there was a small circular artifact in the right temporal frontal area. The final diagnostic impression was headaches probably secondary to viral syndrome. Further, the veteran has reported that he experienced symptoms shortly after service. His spouse, mother, and friends have supported this history, and his private treating osteopath, Dr. R. J. T., concluded that the veteran certainly had multiple sclerosis during the years he was in service. In a November 1995 statement, Dr. R. J. T. pointed out that the veteran's reported symptoms, and diagnostic testing (elevated protein noted during diagnostic testing) were indicative of multiple sclerosis. The private examiner also opined that the artifact noted on brain photo during military service could have been an area of active demyelination. The private examiner's opinion was challenged by VA examiners. In a November 1999 examination report, a VA examiner noted the absence of objective clinical evidence of multiple sclerosis symptoms for 17 years prior to the initial diagnosis of multiple sclerosis in 1998. This examiner was unable to correlate or connect the reported symptoms to multiple sclerosis. In April 2003 and March 2005 memorandums, VA neurologists concluded that the veteran's multiple sclerosis was unrelated to military service. The VA neurologists pointed out that the available medical evidence does not indicate that multiple sclerosis began within 7 years of service discharge. They noted that the symptoms described by the veteran's relatives and friend were nonspecific and made retrospectively, years after the diagnosis of multiple sclerosis. It was also noted that the cerebrovascular accident was unrelated to military service. However, in October 2006, a VA examiner reviewed the medical record and concluded that it was as least as likely as not that the multiple sclerosis began in service. This physician noted that patients with multiple sclerosis could have a variety of neurological symptoms including headaches, paresthesias, numbness, and tingling. He added that this disease could go undiagnosed for decades before a diagnosis is confirmed. It was also pointed out that diagnostic procedures for the identification of multiple sclerosis were limited in the 1970s. In light of the veteran's medical history, the Board requested an independent medical opinion. In May 2007, this medical expert agreed with the assessments of the private osteopath, Dr. R. J. T. The medical expert concluded that it was as least as likely as not that the multiple sclerosis began in service. This opinion, while not on file at the time of the veteran's death, interpreted medical and lay evidence that was on file at the time of death. As such, it is deemed admissible for establishing entitlement to accrued benefits. For a veteran to prevail in her claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). In the Board's opinion, the evidence in the file pertaining to the question of whether the veteran's multiple sclerosis is related to military service, is in equipoise. Therefore, resolving reasonable doubt in the appellant's favor, the Board concludes that service connection for multiple sclerosis is warranted. Therefore, the appellant's claim of service connection for multiple sclerosis is granted for the purpose of accrued benefits. 38 C.F.R. §§ 3.303, 3.1000. Cause of Death Service connection for the cause of the veteran's death may be granted if a disorder incurred in or aggravated by service caused, hastened, or contributed substantially or materially toward death. 38 U.S.C.A. § 1310(b); 38 C.F.R. § 3.312. A service-connected disability is the principal cause of death if it singly, or jointly with some other conditions, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). After reviewing the evidence of record, and granting the appellant the benefit of the doubt in the matter, the Board finds that the veteran's service-connected multiple sclerosis was the underlying or contributing cause of the veteran's death. The claims file contains competent medical evidence that shows the veteran's service-connected multiple sclerosis was etiologically related to his death. Although the veteran's primary cause of death was a possible cerebrovascular accident, the record indicates that this was due to the veteran's multiple sclerosis. The evidence taken as a whole tends toward the conclusion of a causal connection between the veteran's death and his multiple sclerosis. Accordingly, the appellant's claim of service connection for the cause of the veteran's death is granted. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. DEA Chapter 35 Educational Benefits In order for the appellant to be eligible for DEA Chapter 35 educational benefits, she must be the surviving spouse of a veteran who died of a service-connected disability or who, at the time of death, had a total and permanent disability evaluation for service connected disability. 38 U.S.C.A. § 3501; 38 C.F.R. § 21.3021(a). Because the claim of entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 depends on service connection for the cause of death, those benefits must also be granted. ORDER Service connection for multiple sclerosis for the purpose of accrued benefits is granted. Service connection for the cause of the veteran's death is granted. Entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs