Citation Nr: 1500019 Decision Date: 01/02/15 Archive Date: 01/09/15 DOCKET NO. 12-07 774 ) DATE ) ) On appeal from the Department of Decedents Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the decedent's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Appellant-widow ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The decedent served on active duty for training (ACDUTRA) in the Army National Guard from February 1957 to February 1963. He died in July 2009. The appellant is his surviving spouse, so widow. She appealed to the Board of Decedents' Appeals (Board/BVA) from a January 2010 decision of a Department of Decedents Affairs (VA) Regional Office (RO) that, in part, denied her claim of entitlement to service connection for the cause of his death. In support of her claim, the appellant testified at a November 2012 hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. A portion of the claims file is electronic, using the Virtual VA system. Therefore, all future consideration of this widow-appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. During the decedent's lifetime, service connection was not established for any disability. 2. The decedent's death certificate indicates that the immediate cause of his death was amyotrophic lateral sclerosis (ALS). 3. The decedent only had ACDUTRA service in the Army National Guard; he did not serve on active duty and did not incur any disease or injury during ACDUTRA. 4. The ultimately terminal ALS was not incurred in or aggravated by any period of ACDUTRA. CONCLUSIONS OF LAW 1. The decedent did not have active military, naval, or air service; as such, the presumption of service connection for ALS does not apply. 38 U.S.C.A. §§ 101(24), 1131 (West 2002); 38 C.F.R. § 3.318(a) (2014); Bowers v. Shinseki, 26 Vet. App. 201 (2013). 2. The criteria are not met for entitlement to service connection for the cause of the decedent's death. 38 U.S.C.A. §§ 101(22), (24), 1133, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312, 3.318 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the Court held that in cases specifically involving claims for Dependency and Indemnity Compensation (DIC) benefits, so including for cause of death, this VCAA notice must include: (1) a statement of the conditions, if any, for which the decedent was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice should include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. As specifically concerning claims for service connection for cause of death, however, there is no "downstream" disability rating element on the claim, per se, since benefits, if awarded, are not based on the percentage of disability the decedent had during his lifetime, only instead on acceptance that his death was related to his military service. But benefits, if awarded, would be from a determined effective date. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, a letter satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the appellant-widow in November 2009, prior to initially adjudicating her claim in January 2010, so in the preferred sequence. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties in obtaining this necessary supporting evidence. The Board sees the RO did not expressly inform the appellant that the decedent was not service connected for any disability at the time of his death. However, the claims file reflects that she was married to the decedent for 14 years, that neither the decedent nor her had ever previously filed any claim for service connection for any disability, and therefore, that more likely than not she had actual knowledge that the decedent was not service connected for ALS or any other disability at the time of his death. Given these facts, the Board finds that the absence of Hupp notice prior to the initial rating decision is harmless. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (where the appellant demonstrated awareness of the information and evidence necessary to establish entitlement to his claim, the appellant was not prejudiced by VA's failure to satisfy the duty to notify prior to the initial adjudication); Shinseki v. Sanders, 556 U.S. 396, 412-414 (2009). VA also has a duty to assist the appellant by obtaining all relevant evidence in support of her claim, which is obtainable, and this, too, has occurred. Therefore, appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained the decedent's service treatment records (STRs) and service personnel records (SPRs). The appellant also has submitted personal statements discussing her arguments and a copy of the decedent's death certificate identifying the reason he died. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. But in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit Court held that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim. Here, however, resolution of this appeal turns on an issue regarding the status of the decedent as a claimant under the law; there was no medical question to be resolved. As such, VA has no duty to provide a medical opinion prior to deciding this appeal. The appellant, then, has received all essential notice, has had a meaningful opportunity to participate effectively in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). It is difficult to discern what additional guidance VA could have provided her regarding what further evidence she should submit to substantiate her claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the claimant). Finally, as already alluded to, the appellant testified at a Travel Board hearing. The hearing was adequate as the VLJ who conducted the hearing, the undersigned, explained the issue, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appellant and her representative have not made the RO or the Board aware of any additional evidence still needing to be obtained in order to fairly decide the appeal of this claim. They have been given ample opportunity to present evidence and argument in support of this claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the appeal of this claim has been obtained and it is ripe for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2014). II. The Merits of this Claim Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the decedent's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. During the decedent's lifetime, service connection was not established for any disability. His death certificate reflects that he died in March 2010; the immediate cause of his death was ALS. In this case, there is no question as to whether ALS substantially or materially aided or lent assistance to the production of death. The medical evidence of record unmistakably demonstrates that the decedent's diagnosed ALS caused his death, so was the primary if not sole factor. The appellant does not assert that service connection for cause of the decedent's death be granted on a direct-incurrence basis, as the available STRs reflect no neurological problems or complaints, and the appellant does not allege that the decedent's ALS began during his service. Instead, she argues that entitlement to cause of death be granted on a presumptive basis under the provisions set forth in 38 C.F.R. § 3.318. Section 3.318 states that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for this disease. 38 C.F.R. § 3.318(a). Service connection will not be established if, inter alia, the claimant did not have active, continuous service of 90 days or more. Id. (b)(3). The issue upon which this matter turns is whether the decedent had "active military, naval, or air service" under the law, and is therefore a "decedent" entitled to compensation benefits. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013) (For VA purposes, a "decedent" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."). "Active military, naval, or air service" includes active duty (AD) and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury - though not also disease - incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). In this regard, the decedent's DD Form 214 reflects his service in the Army National Guard from February 1957 to February 1963. In November 2009, the RO submitted a request to the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) for verification of the decedent's service for the entire period from February 1957 to February 1963. In December 2009, the RO received a response confirming the dates of his service and indicating that he had "performed no active duty other than for training purposes," i.e., ACDUTRA. Presumptive service connection does not apply to claims predicated on ACDUTRA and INACDUTRA service, only instead AD. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. National Guard duty, however, is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401 , or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. Id. The Board affords significant probative weight to the official findings of the NPRC as reflected in the response to the PIES request. For these reasons, the decedent's service is not considered "active military, naval, or air service" as defined by statute because it was not active duty. Without "active military, naval, or air service," the deceased is not a "decedent" for VA compensation purposes, and the presumption of ALS does not apply. See Bowers v. Shinseki, 26 Vet. App. 201 (2013). The appellant has argued that the decedent's full-time ACDUTRA service is included within the definition of "active military, naval, or air service." She also asserted that, since the decedent served on 90 days of continuous service, he should therefore qualify for the presumption of ALS. Unfortunately, these arguments are not in accordance with the law, which requires 90 days of continuous, active military, naval, or air service for the presumption of ALS to apply. See Bowers, 26 Vet. App. at 207-08. Furthermore, the law is clear that ACDUTRA qualifies as "active military, naval, or air service" only when a claimant dies or becomes disabled from a disease or injury incurred or aggravated in the line of duty. There is no suggestion that the decedent became disabled or died from any disease or injury incurred during ACDUTRA, and the appellant does not allege as much. Under these circumstances, the Board finds that this claim for service connection for the cause of the decedent's death must be denied. As the decedent did not have active military, naval, or air service, the law forbids application of the presumption of ALS. Bowers, 26 Vet. App. 201. ORDER The claim of entitlement to service connection for the cause of the decedent's death is denied. ____________________________________________ KEITH W. ALLEN Decedents Law Judge, Board of Decedents' Appeals Department of Decedents Affairs