Citation Nr: 1343251	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  07-24 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318.

2.  Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Rogers, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1966 to June 1968.  He died on May [redacted], 2006.  The appellant is his widow.  At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), peripheral neuropathy of both lower extremities, and type II diabetes mellitus.  A total disability evaluation based on individual unemployability due to the Veteran's service-connected disabilities (TDIU) was also in effect.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

This case was previously before the Board in March 2011 when it was remanded for further evidentiary development.  The case is now before the Board for further appellate consideration.  

A review of the Veteran's Virtual VA electronic claims file is negative for any additional information or evidence pertinent to the claim decided herein.

It is noted that in a rating decision of October 2005, the RO granted 40 percent disability ratings for peripheral neuropathy of each lower extremity with an effective date of January 27, 2005, denied an evaluation in excess of 50 percent for posttraumatic stress disorder, and denied an evaluation in excess of 40 percent for diabetes mellitus, type II.  Although the Veteran did not file a notice of disagreement, the claims remained pending at the time of the Veteran's death as the one-year period to appeal the decision had not expired at the time of the Veteran's death in May 2006.  See Taylor v. Nicholson, 21 Vet. App. 126 (2007).  The Board does not have jurisdiction over these issues on an accrued benefits basis as they have not yet been adjudicated, thus, they are referred to the AOJ for appropriate action. 
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran was determined to be totally and permanently disabled as of July 9, 2001.  


CONCLUSION OF LAW

The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met.  38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), with implementing regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2013), describes VA's duty to notify and assist claimants in substantiating claims for VA benefits.

In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable.  See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that VCAA does not apply where there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the claimant in substantiating his claim).  See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). 

As will be discussed in further detail below, the appellant's claim for entitlement to DIC benefits is being denied solely because of a lack of entitlement under the law.  Accordingly, the Board has decided the appeal on the current record without any further consideration of the VCAA.  However, the Board does note that the appellant has been provided the opportunity to submit evidence and argument in support of her claim.  She was notified in June 2006 and May 2011 letters of any information or evidence she needed submit to substantiate her claim, and all evidence pertinent to the claim has been obtained by VA.

Moreover, the Board finds that obtaining any new medical evidence in the form of a VA opinion could serve no purpose in advancing the appellant's claim for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318.

II.  Analysis

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

VA law provides that if a Veteran's death is not determined to be service connected, a surviving spouse may still be entitled to DIC benefits.  Under 38 U.S.C.A. § 1318(a) benefits are payable to the surviving spouse of a deceased Veteran in the same manner as if the death were service connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was: 1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; 2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or 3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999.  38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2013). 

"Entitled to receive" means that at the time of death, the Veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the Veteran; (3) the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA was withholding payments because the Veteran's whereabouts were unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.  38 C.F.R. § 3.22.

Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those issues during the Veteran's lifetime.  38 C.F.R. § 20.1106 (2012).

In this case, the record shows that, at the time of the Veteran's death on May [redacted], 2006, service connection was in effect for PTSD (50 percent from January 1, 1994); diabetes mellitus type II (40 percent from July 9, 2001); and peripheral neuropathy of the bilateral lower extremities associated with diabetes mellitus (40 percent each lower extremity from January 27, 2005).  The Veteran was also rated totally disabled based upon individual unemployability due to service-connected disabilities, effective July 9, 2001.

It is clear that the Veteran was not receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death, nor was he receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling continuously since his release from active duty and for at least 5 years immediately preceding death.  In addition, there is no evidence showing the Veteran was a former prisoner of war.  Furthermore, it has not been shown nor has it been alleged that the Veteran was "entitled to receive" compensation for a service-connected disability rated totally disabling under any of the circumstances listed under 38 C.F.R. § 3.22(b) for the appropriate time requirements.

In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that where the law and not the evidence is dispositive, the claim should be denied due to the lack of entitlement under the law.  For the reasons discussed above, the appellant is not legally entitled to DIC benefits under 38 U.S.C.A. § 1318 and her claim must be denied. 


ORDER

Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied.


REMAND

The appellant seeks entitlement to service connection for the cause of the Veteran's death.  While the Board sincerely regrets the delay, additional development is necessary prior to adjudication of the claim.  

The record indicates that the Veteran served in combat during the Vietnam war, and he had been exposed to herbicides while stationed in-country.  A "Combat After Action Interview" received from the U.S. Army and Joint Services Environmental Support Group indicates that the military base where the Veteran was stationed during Vietnam service in May 1968 was overrun by the enemy, which resulted in a total of 49 U.S. and enemy troops killed and 30 U.S. troops wounded in action.  The limited VA treatment records and examination reports associated with the claims file show that the Veteran had reported that during his combat service in Vietnam, he witnessed U.S. and enemy troops being "blown to pieces."  He also reported that his hands and clothing were covered in the blood of dead wounded service members while providing assistance to the wounded and handling and identifying the bodies of the dead.  See May 2002 Report of VA Liver Examination.

The Veteran's death certificate shows that he died in May 2006 due to multi organ system failure due to or as a consequence of metastatic liver cancer since 2 years prior, due to or as a consequence of hepatitis C.  Acute renal failure was listed as an "other significant condition contributing to death but not resulting in the underlying cause . . ."  

The appellant essentially contends that during the Veteran's combat service in Vietnam, he was exposed to contaminated blood and blood products of dead and wounded troops while assisting the wounded and identifying the dead.  She claims that such exposure is the cause of the Veteran's contraction of hepatitis C and ultimately his subsequent development of metastatic hepatocellular carcinoma.  

To support her assertions, she submitted a written statement dated August 7, 2007, from Dr. SM, M.D., the Medical Director of the Samaritan Care Hospice of Winter Park, Florida.  Dr. SM opined that it is possible that the Veteran contracted hepatitis C as a result of his exposure to blood during service in Vietnam.  

Also, in February 2011, the appellant's representative submitted medical literature in support of the assertions that (1) the Veteran's hepatitis C could not possibly have been diagnosed during service as it was not a known medical diagnosis until many years following his discharge from service; (2) most people with hepatitis C do not know that they are infected until liver damage appears decades later on routine medical testing, and; (3) liver cancer is a known complication of hepatitis C.

A VA medical opinion of October 2011 included the examiner's opinion that the Veteran's liver failure as a result of hepatitis C was less likely than not related to blood contact during service.  He reasoned, in part, that the Veteran's service records are negative for any indication that he shared needles or experienced blood contamination from other soldiers during service.  He further opined that it is less likely than not that a service-connected disability or disabilities caused or contributed to the cause of the Veteran's death.  Rather, he opined that the Veteran's liver failure as the result of hepatitis C was most likely caused by his two year history of heroine use immediately following his release from active service from 1968 to 1970, and his extensive post-service history of alcoholism after service and until his death.  The examiner reasoned that there is no mention in medical records or in the Veteran's history of using or abusing alcohol during service, however, he had an extensive history of alcoholism after service until the date of his death.  

However, the opinion does not consider or discuss whether the Veteran's post-service drug and alcohol use or abuse was caused or aggravated by his service-connected PTSD.  The limited VA treatment records currently available for review, to include a February 2005 psychiatric evaluation and a VA treatment note dated March 10, 2005, contain multiple statements of treatment providers and the Veteran suggesting that his substance abuse history may have been a coping mechanism or a form of self-medication for symptomatology of his service-connected PTSD.  Also, during the February 2005 psychiatric evaluation, the Veteran reported that his experimentation with intranasal heroine began during (emphasis added) his Vietnam service.  

Also, the October 2011 VA medical opinion relies, at least in part, on an erroneous assumption that there is no evidence in the Veteran's service records indicative of blood contamination from other soldiers.  To the contrary, the aforementioned "Combat After Action Interview" demonstrates that he has combat service in Vietnam during which a total of 49 U.S. and enemy troops were killed and 30 U.S. troops were wounded in action.  VA treatment records and examination reports show that the Veteran reported that during his combat service, he witnessed U.S. and enemy troops being "blown to pieces," and that his hands and clothing were covered in the blood of dead and wounded troops while providing assistance to the wounded and handling and identifying the dead.  See May 2002 Report of VA Liver Examination.  Moreover, in granting service connection for the Veteran's service-connected PTSD in November 2001, the Board conceded that he engaged in combat against the enemy during Vietnam service.  

On remand, the appellant should be given another opportunity to provide any additional evidence in support of her claims.  As noted in the May 2011 request letter sent to the appellant, of specific interest is authorization sufficient to enable VA to obtain private terminal treatment records the Orlando Regional Medical Center and Samaritan Care Hospice of Winter Park/Orange/Osceola, Florida.  

It also appears that relevant service and post-service VA treatment records associated with the claims file are incomplete.  First, a letter from VA dated in October 1970 indicates that it had been established that the Veteran was admitted to the Bronx, New York VA Hospital at some point following his discharge from service in June 1968.  Subsequent statements received from the Veteran and the appellant suggest that such inpatient treatment was psychiatric in nature.  Records pertaining to the Veteran were requested from the Bronx VA Hospital on multiple occasions and a negative response received from that facility in April 1995 indicated that there were no medical files pertaining to the Veteran at that location.  Significantly, however, there is no indication that a search of archived and/or retired records has been conducted.  Accordingly, VA treatment records dated from January 1968 to 1983 should again be requested from the Bronx VA Hospital. 

Additionally, an April 1994 report of VA PTSD examination indicates that the Veteran may have sought and/or received VA psychiatric treatment at the San Juan VAMC and/or Vet Center dating from 1974 to 1989.  While records were requested from the San Juan VAMC on multiple occasions, it does not appear that a negative response was ever received.  

Finally, it appears that the Veteran received VA medical and psychiatric treatment at VA Medical Centers, Outpatient Clinics, and Vet Centers/Mental Health Clinics located in Orlando and Tampa, Florida from approximately 1993 until his death.  The record, however, contains only sporadic VA treatment records from those facilities dating from 1993 through 2004.  Accordingly, all VA treatment records dated during the aforementioned time period must be requested from the Tampa and Orlando, Florida VA Medical Centers and associated mental health and outpatient clinics.

Accordingly, the case is REMANDED for the following action:

1.  Request that the appellant identify the names, addresses, and dates of treatment for all medical care providers, VA and non-VA, medical and psychiatric, inpatient and outpatient, who may possess additional records relevant to the claim that are not already of record, to specifically include all private treatment records from Orlando Regional Medical Center, Samaritan Care Hospice of Winter Park/Orange/Osceola, and records pertaining to obtainment of a second opinion from a private specialist in Daytona as to the Veteran's prognosis as alluded to in a July 2005 VA mental health note.  The appellant should provide separate written releases for each provider.  

2.  Request any relevant VA medical, psychiatric and inpatient and outpatient treatment records, as follows:

	a.  records from the Bronx VA Hospital dating from January 1968 to December 1983; 

	b.  records from the San Juan VAMC and any associated outpatient and mental health clinics dating from 1974 to 1989, and; 

	c.  records from the Tampa and Orlando VAMCs and any associated outpatient and mental health clinics dating from January 1993 to December 2004.  

3.  If, after making reasonable efforts to obtain any outstanding non-Federal records VA is unable to secure same or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e).  The appellant must then be given an opportunity to respond.

4.  Once the development requested above has been completed to the extent possible, refer the claims file, to include copies of any relevant treatment records located in Virtual VA, to a VA psychologist or psychiatrist for opinions as to the likely date of onset of the Veteran's service-connected PTSD and the likely etiology of any in-service or post-service alcohol and intranasal/intravenous drug use.  The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.   

After reviewing the file, the examiner should provide an opinion as to the likely date of onset of the Veteran's service-connected PTSD.  Then, the examiner should then opine whether substance use (e.g., alcohol dependence and intranasal/intravenous drug use) is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) either:

(1) a primary substance use or abuse disorder, or; 

(2) a secondary substance use or abuse disorder (i.e., proximately due to or aggravated by the service-connected psychiatric disability).  

The examiner's attention is directed to the Veteran's self-reports that he engaged in drug abuse from 1968 to 1970 (see 1994 VA PTSD examination report) and that he began experimenting with intranasal heroine use during service (see February 2005 VA psychiatric evaluation).

A discussion of the complete rationale for all opinions expressed should be included in the requested opinion, to include reference to pertinent evidence where appropriate.  

5.  Then, refer the claims file, to include copies of any relevant treatment records located in Virtual VA, to an appropriate VA medical examiner to obtain a medical opinion regarding the etiology of the conditions listed on the Veteran's death certificate.  The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. 

The examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that:

(a)  Any of the conditions listed on the Veteran's death certificate (e.g., multi organ system failure, metastatic liver cancer, hepatitis C, and acute renal failure) are related to his military service, to include presumed herbicide exposure therein.  

With respect to the Veteran's hepatitis C, reportedly initially diagnosed in 1992, the appellant asserts that the Veteran contracted it during his active military service when his hands and clothing were covered in blood on assisting and identifying U.S. and enemy troops when a total of at least 49 U.S. and foreign troops were killed in action and 35 U.S. troops were wounded in action when the military base where he was staying in Vietnam was overrun by the enemy in May 1968.  The Veteran's combat service and the aforementioned numerical figures have been verified through official service department records.  Thus, the examiner should presume the Veteran's statements concerning blood exposure to multiple U.S. and foreign troops during combat service are credible for purposes of providing the opinion.  The representative has also submitted a February 2011 statement, accompanied by supporting medical literature as to why it was not medically possible to diagnose the Veteran's hepatitis C during service.

As to the Veteran's metastatic liver cancer, the aforementioned medical literature submitted by the representative in February 2011 suggests that liver cancer can be a consequence of hepatitis C.  Moreover, it remains unclear whether the Veteran's metastatic liver cancer may be related to his verified in-service herbicide exposure during his Vietnam service from March 1967 to June 1968.  

(b)  Any service-connected disability (e.g., PTSD, peripheral neuropathy of the bilateral lower extremities, and type II diabetes mellitus as of the date of this remand and to possibly include hepatitis C depending on the opinions requested herein) caused any of the disabilities listed on the death certificate (e.g., multi organ system failure, metastatic liver cancer, hepatitis C, and acute renal failure).  

(c)  Any service-connected disabilities aggravated (i.e., worsened) beyond the natural progress any of the disabilities listed on the death certificate.  

(d)  Any of the service-connected disabilities contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to produce his death.

It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinions provided, to include reference to pertinent evidence where appropriate.  

6.  After the development requested has been completed, review the opinions to ensure that they are in complete compliance with the directives of this REMAND.  If the reports are deficient in any manner, the RO/AMC must implement corrective procedures at once.

7.  After completing the above, and any other development deemed necessary, readjudicate the appellant's claim based on the entirety of the evidence.  If the benefit sought on appeal is not granted, she should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
S. S. Toth
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs