Citation Nr: 0810350 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-33 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from April 1967 to March 1969. He died in July 2003, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of May 2004. From June 1975 to March 1981, the veteran was in receipt of a TDIU rating. The TDIU rating was terminated in a January 1981 rating decision. The appellant argues that the termination was improper. However, this termination was subsequently upheld in a November 1984 Board decision, which denied a TDIU rating. That Board decision subsumed the January 1981 rating decision. Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1994). (A Board decision subsumes any prior rating decisions which address the same issue). Therefore, if the appellant wishes to attack that decision, she must file a motion directly with the Board, alleging CUE in the November 1984 Board decision. 38 U.S.C.A. § 7111 (West 2002). Such a motion may be filed at any time. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND To establish service connection for the cause of the veteran's death, the evidence must show that a service- connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to constitute a contributory cause, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2007). According to the death certificate, the veteran died in July 2003 at the age of 53 years, of cerebrovascular hemorrhage due to myocardial infarction. At the time of his death, service connection was in effect for PTSD, assigned a 50 percent rating, and for a below-the-knee amputation of the left leg, assigned a 40 percent rating. A TDIU rating was in effect. The appellant contends that the veteran's service- connected disabilities contributed to cause the veteran's death. The death certificate did not list PTSD or the below- the-knee amputation as a cause of death. However, a history of prior myocardial infarctions was noted during the terminal hospitalization. Service medical records show that in September 1968, the veteran sustained a high-velocity gunshot wound to the mid- calf of the left leg while in enemy action in Vietnam. He suffered a cardiac arrest during the initial surgery. Subsequently, he developed persistent gangrene, and had first a mid-tarsal, then a below-the-knee amputation of the left lower extremity. During the course of the treatment, he was also observed to have suffered a generalized seizure. After service, on a VA examination in October 1970, the veteran was noted to have anxiety neurosis. He was granted service connection for anxiety neurosis with a seizure disorder, as well as for the below-the-knee amputation of the left leg. During a VA hospitalization from September to October 1985, PTSD was diagnosed, and that disability was subsequently service-connected in a January 1987 rating decision. On a VA examination in September 1975, a history of trouble with the stump was noted. In July 1981, the veteran was hospitalized for revision of the stump, and he spent the following year suffering from persistent drainage, pain, and infection of the stump, necessitating multiple hospitalizations, including a lengthy hospitalization from April to July 1982. During the succeeding years, the veteran was hospitalized on numerous occasions in VA facilities, as well as in Oakwood Hospital, for treatment of various conditions, including PTSD. He was also hospitalized on many occasions for treatment of alcohol abuse, or alcohol withdrawal. However, a rehabilitation counselor wrote, in July 1994, that the veteran had suppressed his PTSD symptoms with alcohol, and that his alcohol problem could not be separated from the PTSD, as it was directly related to and aggravated by PTSD. Similarly, a summary of therapy dated in January 1998 from a VA Chief Psychology Section Mental Health Service indicated he had a history of an episode of alcohol abuse secondary to unresolved terror, grief and guilt regarding combat experiences. In addition, on a VA psychiatric examination in September 1998, the examiner concluded that the veteran's polysubstance dependence, including alcohol, was likely secondary to PTSD. The Oakwood Hospital records show that in September 2002, diabetes was diagnosed, and as argued by the appellant's representative, this is presumed service-connected as due to herbicide exposure. In June 2003, the veteran was brought to Oakwood Hospital, after becoming suddenly unconscious and unresponsive. It was determined that he had suffered cardiac arrest. His past medical history was significant for conditions including known coronary artery disease, and previous myocardial infarction. He did not regain any significant degree of consciousness prior to his death on July 5, 2003. In March 2004 the RO obtained a medical opinion, as follows: "After reviewing the available veteran's service and civilian medical records, it is my opinion that veteran's death (secondary to cerebrovascular hemorrhage and myocardial infarction) is not likely related to his service connection conditions (including cardiac arrest and seizure)." No explanation for the conclusion was provided. In view of the cardiac arrest shown in service, as well as the myocardial infarction listed as a cause of death, as well as the complex medical history since service, including a number of opinions associating his alcohol abuse with PTSD, this opinion is inadequate. Additionally, medical records from Oakwood Hospital, dated from 1999 to 2003, including complete records of the terminal hospitalization, were received after that opinion. Particularly since no rationale was provided, it cannot be concluded that these records would not have been relevant to the opinion. The opinion also failed to address whether a service- connected disability contributed to the cause of death. A service-connected condition may be considered a contributory cause of death if it results in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of another condition which was the primary cause of death, or if a service-connected condition has a material influence in accelerating death. See 38 C.F.R. § 3.312(c)(3) and (4). In view of these factors, an additional opinion must be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The law provides that DIC is payable to a deceased veteran's surviving spouse in the same manner as if the veteran's death were service-connected, when the veteran's death was not caused by his own willful misconduct, and at the time of his death, he was in receipt of or was entitled to receive compensation for service-connected disability that was continuously rated totally disabling by VA for a period of 10 or more years immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). "Entitled to receive" means, as pertinent to this appeal, means that the veteran filed a claim for disability compensation during his or her lifetime and would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for a 10-year period but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the veteran's lifetime. 38 C.F.R. § 3.22(b)(1) (2007). The veteran was in receipt of a TDIU rating, based on service-connected PTSD and below-the-knee amputation of the left leg from February 1997 until his death in July 2003, less than 10 years. However, in May 1994, the veteran filed a claim for a TDIU rating, which was denied in April 1995, and although the veteran initiated an appeal, he failed to perfect the appeal with the submission of a substantive appeal. Pursuant to 38 C.F.R. § 3.400(o), entitlement based on the May 1994 claim could have been established effective up to a year prior to the claim. The issue of whether there was CUE in the April 1995 decision denying a TDIU rating must be referred to the RO for initial consideration. Accordingly, the case is REMANDED for the following action: 1. Forward the file to an appropriate medical specialist for an opinion as to whether a disability due to service, including service-connected PTSD and/or below-the-knee amputation of the left leg, contributed substantially or materially to cause the veteran's death. The claims file, and a copy of this REMAND, must be provided to the physician for review in conjunction with the opinion. The opinion should address the following: * Whether there was any relationship between cardiac arrest in service, and later developing cardiac disease, or between the in-service cardiac arrest, and myocardial infarction noted as a cause of death. * Whether substance abuse, including alcohol, was due to PTSD and/or the below- the-knee amputation of the left leg (see July 1994 opinion from E. Tripe, PhD; summary of therapy dated in January 1998 from a VA Psychology Section Chief; and VA psychiatric examination in September 1998, all in Volume 3). * Whether any or all disabilities related to service, including PTSD, below-the-knee amputation of the left leg, diabetes mellitus, and, if applicable, cardiac arrest and alcohol/substance abuse: Contributed substantially or materially to cause the veteran's death; Were of such severity as to have had a material influence in accelerating death; or Resulted in debilitating effects and general impairment of health, to an extent that rendered the veteran materially less capable of resisting the effects of the primary cause of death. It is essential that the physician provides a complete rationale for any opinion provided. It would be helpful if the physician would use the following language in his or her conclusions, 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. 2. Adjudicate whether there was CUE in the April 1995 rating decision which denied a TDIU rating. 3. Thereafter, adjudicate the claims, in light of all evidence of record. If either claim is denied, furnish the appellant and her representative with a supplemental statement of the case, and provide an opportunity for response, before the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2007). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).