Citation Nr: 0811055 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 97-17 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for cause of the veteran's death. 2. Entitlement to Survivors' and Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: Mark Lippman, Attorney at Law ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from January 1943 to November 1945, and was a prisoner of war (POW) of the German government from March 27, 1944, to May 3, 1945. The veteran died in December 1985. The appellant is seeking survivor's benefits as the veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 1996 rating decision by the above Department of Veterans Affairs (VA) Regional Office, which denied service connection for the cause of the veteran's death and entitlement to Chapter 35 educational assistance benefits. This appeal has a very complex procedural background, which the Board will briefly summarize. After the May 1996 rating decision, the appellant perfected an appeal as to both issues. In July 1998, the Board remanded the appeal for further development, to include a determination as to whether new and material evidence had been submitted to warrant reopening of the appellant's claim for service connection for the cause of the veteran's death. Service connection for the cause of the veteran's death had previously been denied in an unappealed March 1986 rating decision, although the RO did not adjudicate the appellant's claim as such in rendering its May 1996 rating decision. Nonetheless, in a May 1999 rating decision, the RO determined that the appellant had submitted new and material evidence to warrant reopening of her claim, but continued its denial of her claim for service connection for the cause of the veteran's death on the merits. In August 2000, the Board concluded that new and material evidence had been submitted to reopen the appellant's claim for service connection for cause of death, but concluded that the claim was not well grounded. The appellant's claim for entitlement to Chapter 35 educational assistance benefits was found to lack legal merit and entitlement under the law. As a result, both claims were denied. The appellant appealed the Board's August 2000 decision to the United States Court of Appeals for Veterans Claims (CAVC). In that litigation, a Motion for Remand was filed by the VA General Counsel (GC), averring that remand was required do to the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-175, now codified and implemented at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In March 2001, a CAVC order was issued, vacating the Board's August 2000 decision and remanding the appellant's claims pursuant to the GC's motion. In a February 2002 decision, the Board again determined that new and material evidence had been submitted to reopen the claim for service connection for the cause of the veteran's death. The Board denied the appellant's claim on the merits. The appellant then appealed the Board's February 2002 decision to the CAVC. In that litigation, a Joint Motion for Remand was filed by the VA General Counsel and the appellant's representative, stating that a remand was required for further compliance with the notification provisions of the VCAA and interpretive caselaw. In an Order dated February 2003, the CAVC vacated and remanded, in part, the Board's decision and remanded the matters pursuant to the Joint Motion. In August 2003, the Board again remanded the appellant's claims to the RO. In April 2004, the Board again denied the appellant's claims for entitlement to service connection for cause of the veteran's death and entitlement to Chapter 35 educational benefits. The appellant appealed that decision to the CAVC, and both parties filed motions in support of their interests. In August 2007, a CAVC decision was issued, remanding the appellant's claims in order for the Board to address whether a VA opinion is needed in this case and for the Board to adjudicate the appellant's claim under the current version of 38 C.F.R. § 3.309(c) (2007). This appeal is now properly before the Board for appellate consideration. FINDINGS OF FACT 1. The veteran was a POW of the German government from March 27, 1944, to May 3, 1945. 2. The veteran died in December 1985. According to the official certificate of death, the immediate cause of the veteran's death was a ruptured abdominal aneurysm due to arteriosclerosis. 3. The medical evidence of record indicates that the veteran had a diagnosis of arteriosclerosis prior to his death. CONCLUSIONS OF LAW 1. Service connection for cause of the veteran's death is warranted. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.309(c), 3.312 (2007). 2. The basic eligibility requirements for entitlement to Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, are met. 38 U.S.C.A. §§ 3500, 3501 (West 2002 & Supp. 2007); 38 C.F.R. § 3.807 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Given the fully favorable decision herein, discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the appellant is moot or represents harmless error. As to additional notice regarding the effective date to be assigned, the RO will address this matter in effectuating the award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). II. Facts and Analysis In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service- connected disability caused the death, or substantially or materially contributed to cause death. The death of a veteran will be considered as having been due to a service- connected disability when such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to produce 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 connection. 38 C.F.R. § 3.312(c)(1). Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a), 3.304. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including arteriosclerosis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). The law also provides that, in the case of a veteran who is a former POW, certain diseases which become manifest to a degree of at least 10 percent at any time after active service shall be considered to have been incurred in or aggravated by service. 38 C.F.R. § 3.309. During the pendency of the instant appeal, the regulations regarding presumptive service connection for former POWs were revised. The former regulatory provisions, which were employed in all previous decisions, provided for service connection on a presumptive basis for former POWs who developed certain diseases, including beriberi heart disease or ischemic heart disease (with localized edema during captivity), which became manifest to a compensable degree at any time after service. Those provisions applied only to former POWs who had been detained for not less than 30 days. 38 C.F.R. § 3.309(c) (2003). The current regulatory provisions provide for service connection on a presumptive basis for former POWs who develop certain diseases, including atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, and arrhythmia). No minimum period of internment is required under the revised regulations, and localized edema in captivity need not be shown. The requirement that the condition become manifest to a compensable degree at any time after discharge has remained. See 38 C.F.R. § 3.309(c) (effective October 7, 2004); see also 69 Fed. Reg. 60,083, 60,083-60,090 (Oct. 7, 2004). Atherosclerotic heart disease encompasses arteriosclerotic heart disease, ischemic heart disease, coronary artery disease, and other diseases that may be described by a more specific diagnosis. See 69 Fed. Reg. 60,083, 60,083-60,090 (Oct. 7, 2004). The veteran died in December 1985. At the time of his death, service connection had been established for anxiety, with gastrointestinal symptoms and diarrhea, rated as 10 percent disabling. The veteran's death certificate reflects that the immediate cause of death was a ruptured abdominal aneurysm, due to or as a consequence of arteriosclerosis. The appellant has asserted that the veteran developed arteriosclerosis as a result of his detainment as a POW during World War II. The medical evidence of record discloses that, in September 1966, the veteran was treated for coronary insufficiency and arteriosclerotic heart disease at the Green County Memorial Hospital. See September 1998 statement from Dr. P.M.S.; August 1996 statement from M.C., A.R.T. As noted, the veteran's death certificate indicates that arteriosclerosis was a significant factor leading to his death. According to the private hospital emergency room records, the veteran was brought to the hospital in an ambulance after collapsing in his home. Cardiopulmonary resuscitation was performed in the ambulance and the emergency room before he was pronounced dead. According to the December 1985 coroner's report, the veteran had experienced cramping pain in his legs and abdomen and then had severe back pain, with weakness in his legs. He then collapsed and vomited, and was brought to the hospital in a cyanotic condition. The report indicates that his aorta showed extreme arteriosclerosis. The coroner concluded that the veteran's death was caused by a ruptured abdominal aneurysm due to arteriosclerosis. Since the veteran was a POW who died as a result of complications of atherosclerotic heart disease, namely arteriosclerosis, service connection may be granted under the presumptive provisions of the revised 38 C.F.R. § 3.309(c). As noted above, the revised regulations no longer require a finding that the veteran experienced localized edema in captivity. Compare 38 C.F.R. § 3.309(c) (2003) with 38 C.F.R. § 3.309(c)(1) (2007). In addition, given the fact that the veteran was a former POW whose death has been attributed to arteriosclerosis, medical nexus is automatically presumed by operation of law. Therefore, without finding error in the previous actions taken in this appeal, and applying the current regulations regarding presumptive service connection for former POWs, the Board concludes that service connection for the cause of the veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. For the purpose of DEA under 38 U.S.C.A. Chapter 35, the child, the spouse, or surviving spouse of a veteran will have basic eligibility if the veteran was discharged from service under conditions other than dishonorable, or died in service; and has a permanent total service-connected disability, or a permanent total service-connected disability was in existence at the date of the veteran's death, or the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807. Given the Board's determination herein, granting service connection for the cause of the veteran's death, the appellant has met the conditions for basic eligibility for DEA under 38 U.S.C.A. Chapter 35. See 38 C.F.R. § 3.807. Accordingly, the appeal may be granted as to both issues. ORDER Entitlement to service connection for the cause of death is granted. Basic eligibility for Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, United States Code, is granted. _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs