Citation Nr: 0123404 Decision Date: 09/26/01 Archive Date: 10/02/01 DOCKET NO. 00-23 974 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to increased dependency and indemnity compensation (DIC) based on the need for regular aid and attendance or housebound status. 3. Entitlement to Dependents Educational Assistance (DEA) benefits under the provisions of 38 U.S.C.A § 3500 (Chapter 35). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Counsel INTRODUCTION The veteran served on active duty from March 1951 to February 1955. The veteran died in November 1999; the appellant is his widow. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision that, inter alia, denied the benefits sought on appeal. The Board notes that in a written statement received by the RO in December 2000, the appellant's representative withdrew the issue of entitlement to accrued benefits from appellate status. See 38 C.F.R. § 20.204(c) (2000). FINDINGS OF FACT 1. The veteran served on active duty from March 1951 to February 1955. He died in November 1999. 2. The official death certificate states that the immediate cause of the veteran's death was heart failure, due to or as a consequence of ischemic cardiomyopathy. End stage renal failure was noted as other significant condition contributing to death but not related to the cause of death. An autopsy was not performed. 3. At the time of the veteran's death, service connection was in effect for the following disabilities: nicotine dependence, evaluated as noncompensable; chronic bronchitis, secondary to nicotine dependence, evaluated as 100 percent disabling; coronary artery disease, status post bypass surgery, with a history of congestive heart failure and angina, secondary to nicotine dependence, evaluated as 100 percent disabling; and special monthly compensation based on being housebound. The total combined schedular rating was 100 percent, effective from August 28, 1997. 4. On July 22, 1998, the law was amended to prohibit service connection of a death or disability on the basis that it resulted from an injury or disease attributable to the use of tobacco products by a veteran during the veteran's service; this new law only applies to claims filed after June 9, 1998. 5. The appellant filed her claim for service connection for the cause of the veteran's death in November 1999. 6. The appellant has not established entitlement to DIC benefits. 7. By rating action in October 1998, the RO determined that the veteran was entitled to a permanent and total rating due to service-connected disability and granted entitlement to Chapter 35 benefits, which was in effect at the time of his death. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for the cause of the veteran's death is without legal merit. 38 U.S.C.A. §§ 1103, 1310 (West 1991 & Supp. 2001); 38 C.F.R. § 3.312 (2000); 38 C.F.R. § 3.300 (2001) (66 Fed. Reg. 18195 (2001)). 2. The appellant's claim for increased DIC based on the need for regular aid and attendance or housebound status is without legal merit. 38 U.S.C.A. §§ 1310, 1311 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.351, 3.352 (2000). 3. The criteria for continuing payment of Chapter 35 benefits are met. 38 U.S.C.A. § § 3500, 3501 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran had active service from March 1951 to February 1955. He died in November 1999, at the age of 67 years. The appellant is the veteran's widow. At the time of the veteran's death, service connection was in effect for: nicotine dependence, evaluated as noncompensable; chronic bronchitis, secondary to nicotine dependence, evaluated as 100 percent disabling; coronary artery disease, status post bypass surgery, with a history of congestive heart failure and angina, secondary to nicotine dependence, evaluated as 100 percent disabling; and special monthly compensation based on being housebound. The veteran's service medical records, including a February 1955 discharge examination report, are negative for complaints or findings related to a heart disorder. VA hospitalization records dated in May 1973 note that the veteran was admitted with complaints of severe chest pain of four months duration. Diagnoses included chest pain, probable angina pectoris, and arteriosclerotic cardiovascular disease. A February 1974 statement from Gregory Naughton, M.D., notes that the veteran was admitted to Sioux Valley Hospital that month with increasing frequency of angina and increasing severity of each attack. Dr. Naughton noted that the veteran had had known coronary artery disease with angina pectoris for approximately one year. Impression included severe coronary artery disease. VA hospitalization records note that the veteran underwent cardiac catheterization in March 1974 and coronary bypass surgery in June 1974. Private treatment records dated from 1974 to 1994 note ongoing treatment for heart problems. In July 1995, the veteran presented to the emergency room at Medical City Dallas Hospital with complaints of chest pain. He reported a history of angina since bypass surgery in 1974. An echocardiogram revealed extensive anteroapical wall motion abnormalities consistent with myocardial infarction. Private treatment records dated from 1995 to 1997 note ongoing treatment for heart problems. In a December 1997 statement, Dante N. Jocson, M.D., indicated that he had treated the veteran since the early 1990's. Dr. Jocson opined that the veteran's smoking during service was "sufficient for him to become nicotine dependent and he developed this while in the service." Dr. Jocson further opined that the veteran's nicotine dependence was "certainly a major factor in the development of his . . . cardiovascular . . . condition." In a January 1998 statement, Craig N. Bash, M.D., stated that following a review of the veteran's records, it was his opinion that the veteran began smoking and developed a nicotine dependence during service. Dr. Bash opined that the veteran's nicotine addiction and subsequent smoking were causative factors for the veteran's coronary artery disease. A May 1998 VA examination report notes the veteran's history of coronary artery bypass graft. The veteran complained of some chest pain "very rarely." Blood pressure was 120/70; edema was positive bilaterally. Diagnoses included coronary artery disease, status post-coronary artery bypass graft. By rating decision dated in October 1998, the RO granted service connection for nicotine dependence and coronary artery disease, status post bypass surgery, with a history of congestive heart failure and angina, secondary to nicotine dependence. The RO also determined that the veteran was entitled to a permanent and total rating due to service- connected disability and granted basic eligibility to Chapter 35 benefits. In a November 1999 statement, Dr. Bash noted the veteran's ongoing problems with congestive heart failure and renal failure. The veteran died at Prince William Hospital in November 1999. The veteran's official death certificate indicates that the immediate cause of death was heart failure, due to or as a consequence of ischemic cardiomyopathy. End stage renal failure was noted as other significant condition contributing to death but not related to the cause of death. An autopsy was not performed. In November 1999, the appellant submitted a claim for service connection for the cause of the veteran's death. By rating decision dated in March 2000, the RO denied the appellant's claim on the basis that the law had been amended to preclude service connection for tobacco-related disabilities. In a statement received by the RO in April 2000, the appellant's representative stated: There is no language in [38 U.S.C.A. § 1103] that permits a finding that DIC shall be denied when death is the result of a disability already established as service connected. The statute precluding DIC based on smoking has no application in this case. The [appellant] does "not" seek DIC on the basis that her husband's death was "attributable" to smoking in service. [She] claims that her husband's service[- ]connected heart disease caused his heart failure and death. How and why [the veteran] established service connection during his lifetime is not a relevant consideration for [the appellant's] DIC claim. In a December 2000 statement, the appellant's representative argued that in 38 U.S.C.A. § 1103: Congress used the specific phrase "attributable to the use of tobacco products" as the basis to deny DIC. (Emphasis added.) The word "attributable" contemplates a case where a claim is filed subsequent to the Act specifically alleging that a disability or death was due to tobacco use. This is evident from the Act's use of the language, "shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty." Only in original claims is VA required to determine whether or not a disability or death was incurred in [the] line of duty. There is no need for such a determination when a disability has already been service connected. Congress did not expressly provide that VA should revisit claims already adjudicated or sever benefits already established as service connected. Congress did not provide that claims already "attributed" to smoking in the past should be reopened or readjudicated or that a new line of duty determination should be made. II. Analysis A. Cause of Death The appellant contends that the RO erred by failing to grant service connection for the cause of the veteran's death. She maintains that because the immediate cause of the veteran's death was heart failure and because the veteran was service connected coronary artery disease, status post bypass surgery, with a history of congestive heart failure and angina, service connection for the cause of the veteran's death is warranted. In a claim of service connection for the cause of the veteran's death, evidence must be presented which in some fashion links the fatal disease to a period of military service or an already service-connected disability. See 38 U.S.C.A §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.312 (2000). In short, evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 C.F.R. § 3.312. For a service- connected disability to be considered the principal cause of death, it must "singly or jointly with some other condition, be the immediate or underlying cause of death or be etiologically related thereto." Id. For a service-connected disability to constitute a contributory cause of death, it must be causally connected to the death and must have "contributed substantially or materially" to death," combined to cause death," or "aided or lent assistance to the production of death." Id. On July 22, 1998, the President signed into law the "Internal Revenue Service Restructuring and Reform Act of 1998," Public Law No. 105-206. This law created a new statutory provision, 38 U.S.C.A. § 1103, which reads: (a) Notwithstanding any other provision of law, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. (b) Nothing in subsection (a) shall be construed as precluding the establishment of service connection for disability or death from a disease or injury which is otherwise shown to have been incurred or aggravated in active military, naval, or air service or which became manifest to the requisite degree of disability during any applicable presumptive period specified in section 1112 or 1116 of this title. 38 U.S.C.A. § 1103. This law applies to claims filed after June 9, 1998. In April 2001, VA issued an implementing regulation, 38 C.F.R. § 3.300, reflecting the statutory provision stating that a disability or death will not be service connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. 38 C.F.R. § 3.300 (2001) (66 Fed. Reg. 18195 (2001). 38 C.F.R. § 3.300 provides, in pertinent part, "(a) for claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service." 38 C.F.R. § 3.300. Service connection, however, is not precluded where the disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. Id. For purposes of this section, "otherwise shown" means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service. Id. In the case at hand, the RO received the appellant's claim of entitlement to service connection for the cause of the veteran's death in November 1999, which was after the effective date of the new law, 38 U.S.C.A. § 1103. In addition, the evidence of record does not show that the veteran's heart disease or death can be service connected on some basis other than his use of tobacco products during service. The veteran's service medical records do not show any diagnosis referable to heart disease. Moreover, there is no diagnosis of heart disease during the one-year presumptive period following the veteran's separation from active service in February 1955. The earliest medical evidence of heart disease is 1973 VA hospitalization records. Subsequent treatment records note diagnoses of coronary artery disease, congestive heart failure and angina. The Board notes that these medical assessments have never been linked to the veteran's period of military service, other than his use of tobacco products during service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Therefore, as Congress has enacted a clear prohibition against granting service connection for death due to the use of tobacco products in service, there is no legal basis for the benefits sought on appeal. The Board acknowledges the appellant's contention that as service connection was already in effect for heart disease, the veteran's death should be service-connected. Nevertheless, the Board notes that service connection for the veteran's heart disease was granted secondary to his nicotine dependence developed during service. The law is clear that, for claims filed after June 9, 1998, "a veteran's death shall not be considered to have resulted from [an incident of service] on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's active service." 38 U.S.C.A. § 1103(a). The regulatory history of 38 C.F.R. § 3.300 (specifically, the discussion of comments received that was included when the final regulations were published) provides further guidance in VA's interpretation of section 1103: One commenter stated that the proposed regulation does not make clear whether a claim for dependency and indemnity compensation (DIC) filed on or after June 9, 1998, based on a veteran's disability which was determined, prior to June 9, 1998, to be service-connected based upon the veteran's use of tobacco products during service is barred by 38 U.S.C. 1103(a). The commenter pointed out that 38 U.S.C. 1103(a) refers to injury or disease which is "attributable," rather than "attributed" to use of tobacco products. The commenter contends that, if a veteran's service connection claim was granted prior to June 9, 1998, the veteran's disability was "attributed" to use of tobacco products. The commenter stated that, if the veteran dies from the disability which was service connected prior to June 9, 1998, a post-June 9, 1998, DIC claim would not be based on a disease or disability not yet "attributed to" tobacco use but "attributable to" tobacco use. Rather, according to the commenter, such a DIC claim would be based on a service- connected disability. This commenter recommended that if VA considers there to be any ambiguity in 38 U.S.C. 1103 on this point, VA should resolve this ambiguity in the veteran's favor. With regard to the commenter's reliance on use of the word "attributable" rather than "attributed" in 38 U.S.C. 1103(a) and proposed 38 CFR 3.300(a), the word "attributable" is defined by Webster's Third New International Dictionary of the English Language 141 (1981), to mean "capable of being attributed." Thus, under section 1103(a), if a veteran's service-connected disability or death is capable of being attributed to the use of tobacco products, service connection is precluded. A veteran's disability which was "attributed" to use of tobacco products during service prior to June 9, 1998, would necessarily be " capable of being attributed" to use of tobacco products. Therefore, use of the word "attributable" does not support the commenter's conclusion that a DIC claim filed after June 9, 1998, based upon a veteran's disability which was attributed to tobacco use during his or her lifetime is not precluded by section 1103(a). 66 Fed. Reg. 18195 (2001). Hence, in promulgating 38 C.F.R. § 3.300, VA officials considered but rejected the interpretation of 38 U.S.C.A. § 1103 advanced by the appellant's representative in this appeal. Under these circumstances, the Board must conclude that in view of the prohibition established by section 1103, there simply is no legal basis to award entitlement to service connection for the cause of the veteran's death. Accordingly, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (in cases where the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). As a final matter, the Board notes that, on November 9, 2000, during the pendency of this appeal, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), which, among other things, redefines the obligations of VA with respect to the duties to notify and assist a claimant. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099 (2000); see also VAOPGCPREC 11-00. Pertinent regulations (which implement the Act but, with the exception of the provision governing claims to reopen on the basis of new and material evidence, do not create any additional rights) recently were promulgated. See 66 Fed. Reg. 45620-45632 (August 29, 2001). The RO has not had an opportunity to address this new legislation with regard to the appellant's cause of death claim. The Board emphasizes, however, that, as evidenced by the May 2000 SOC, the appellant has been given notice of the reasons for the denial and she has not identified any pertinent existing evidence that has not been obtained. Significantly, moreover, for the reasons noted above, the Board is without authority to grant the benefit sought on appeal-indeed, the law precludes it. See Sabonis, supra. Thus, any further development consistent with the dictates of the Veterans Claims Assistance Act of 2000 would not result in a different outcome of the matter on appeal. B. Increased DIC Benefits Based on the Need for Regular Aid and Attendance Or Housebound Status Once entitlement to DIC has been established, increased DIC benefits are payable to a surviving spouse by reason of being in need of aid and attendance, which is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another individual. A claimant is considered to be in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for regular aid and attendance. 38 U.S.C.A. § 1311(c); 38 C.F.R. § 3.351(a), (b) and (c). Increased DIC benefits are also payable to a surviving spouse who does not meet the preceding requirements if the surviving spouse is permanently housebound by reason of disability. The "permanently housebound" requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. 38 U.S.C.A. § 1311(d); 38 C.F.R. § 3.351(a)(4), (e). The appellant essentially contends that she is entitled to special monthly DIC benefits based on the need for the regular aid and attendance of another person or housebound status. In this case, however, because the appellant has not established entitlement to any DIC benefits, the claim for increased DIC benefits must also be denied as without legal merit. DIC benefits are payable to a veteran's surviving spouse, children and/or parents, when the veteran dies in service or for death due to service-connected or compensable disability (see 38 U.S.C.A. §§ 1310, 1312). In this case, however, the veteran died many years after service. Moreover, for the reasons discussed above, the provisions of 38 U.S.C.A. § 1103 preclude service connection for the cause of the veteran's death, and, hence, payment of DIC benefits on that basis. Entitlement to DIC benefits also may be established, pursuant to the provisions of 38 C.F.R. § 1318, where the veteran is in receipt of (or entitled to receive) a total rating for service-connected disability for a period of 10 years prior to the veteran's death (or, if a lesser period, for at least 5 years from the date of discharge or release from active service). The appellant has not specifically claimed, and the RO has not adjudicated the issue of, entitlement to DIC under the provisions of section 1318. (Parenthetically, however, the Board notes that at the time of the veteran death in November 1999, service connection for nicotine dependence, and for the secondary condition of heart disease, rated as 100 percent disabling at the time of the veteran's death, had only been in effect since September 17, 1997 (the date of the original claim for benefits)). The Board notes, again, that the RO has not had an opportunity to address the Veterans Claims Assistance Act of 2000 with regard to the appellant's claim. The Board emphasizes, however, that, as evidenced by the May 2000 SOC, the appellant has been given notice of the reasons for the denial and she has not identified any pertinent existing evidence that has not been obtained. Significantly, moreover, for the reasons noted above, the Board is without authority to grant the benefit sought on appeal-indeed, the law precludes it. See Sabonis, supra. Thus, any further development consistent with the dictates of the Veterans Claims Assistance Act of 2000 would not result in a different outcome of the matter on appeal. For essentially the same reason, the Board finds that the appellant has not been prejudiced by the Board's denial of the claim as lacking legal merit. While the RO determined that, in view of the denial of service connection for cause of the veteran's death, the claim was "moot," given he facts noted above, a remand of this matter to the RO for adjudication of the issue would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). C. DEA benefits under Chapter 35 The appellant essentially contends that the RO erred by failing to grant entitlement to Chapter 35 benefits. The Board finds that all relevant evidence has been obtained with regard to the appellant's claim and that no further assistance is required to comply with the VA's duty to assist the veteran. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Chapter 35 dependents' educational assistance is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of dependents' educational assistance exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service- connected disability; or, if a serviceperson (5) is on active duty as a member of the Armed forces and is, and, for a period of more than 90 days, has been listed by the Secretary concerned in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. 38 C.F.R. § 3.807. As a preliminary point, the Board notes that, in this case, an October 1998 rating decision awarded basic eligibility for Chapter 35 benefits during the veteran's lifetime. Subsequently, a March 2000 rating decision had the effect of severing this benefit. The Board notes that, however, by rating action in October 1998, the RO determined that the veteran's 100 percent disability rating was permanent. Thus, the award of DEA benefits was based on the finding that the veteran had a permanent and total rating due to service-connected disability in effect during his lifetime, and a permanent total service connected disability was in existence at the date of the veteran's death; that fact did not change after the veteran's death. Moreover, while 38 U.S.C.A. § 1103, as addressed above, precludes grants of service connection for disability or death resulting from disability after June 8, 1998, DEA in this case was awarded during the veteran's lifetime, and that statute does not direct or authorize discontinuation of DEA benefits under these circumstances. Under these circumstances, the Board finds that as the appellant, the veteran's spouse, has continuing entitlement to Chapter 35 benefits. To this extent, then, the benefit sought on appeal must be granted. ORDER Service connection for the cause of the veteran's death is denied as without legal merit. Increased DIC based on the need for regular aid and attendance or housebound status is denied as without legal merit. DEA benefits under Chapter 35 benefits are granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals