Citation Nr: 0813384 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 07-30 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for the cause of the veteran's cause of death. 2. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The veteran had active service from February 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Manchester, New Hampshire, Regional Office (RO) which denied service connection for the cause of the veteran's death and . In **** 200*, the veteran submitted a Motion to Advance on the Docket. In April 2008, the Board granted the appellant's motion. FINDINGS OF FACT 1. The veteran died in August 2006. His death certificate lists the causes of the veteran's death as chronic heart failure, renal failure, and diabetes mellitus. 2. At the time of the veteran's death, service connection was in effect for a generalized anxiety disorder evaluated as 50 percent disabling, left foot cold injury residuals evaluated as 20 percent disabling, right foot cold injury residuals evaluated as 20 percent disabling, and flatfeet evaluated as noncompensable. He had a combined 70 percent evaluation. 3. A total rating for compensation purposes based on individual unemployability was effectuated as of March 1, 2004. CONCLUSIONS OF LAW 1. The cause of the veteran's death was not the result of a disease or injury incurred in or aggravated by active military service; a service-connected disability did not cause or contribute substantially or materially to the veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.312 (2007). 2. The criteria to establish entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2007); 38 C.F.R. § 3.22 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements apply generally to all five elements of a service connection claim; namely, (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction. Id. In connection with the veteran's claim of service connection for the cause of the veteran's death, and for Dependency and Indemnity Compensation (DIC), a VCAA notice letter was sent in November 2006, prior to the RO's January 2007 decision. That letter informed the veteran of the evidence necessary to establish service connection for the cause of the veteran's death and for DIC. She was notified of her and VA's respective duties for obtaining evidence. She was asked to send information describing additional evidence for VA to obtain, and to send any evidence in her possession that would support her claims. The Board acknowledges that the letter did not contain any specific notice with respect to how a rating or an effective date would be assigned if service connection was established; however, those questions are not before the Board currently. Indeed, as set forth below, the Board has determined that the claims of service connection for the veteran's death and DIC must be denied. Consequently, no rating and no effective date will be assigned. Under the circumstances, the Board finds that the notice was sufficient for purposes of deciding the present appeal. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist has been fulfilled. The veteran's service medical records have been obtained, as have the records of his VA treatment (all relevant treatment was at the Manchester VAMC or the Boston VAMC). The Board notes that no VA medical opinion was obtained in this case because, as further discussed below, it has determined that the medical evidence of record was sufficient to render a decision. The appellant has not identified and/or provided releases for any other relevant evidence that exists and can be procured. Therefore, no further development action is warranted. II. Service Connection A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002 and Supp. 2007); 38 C.F.R. § 3.312 (2007). In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. Id. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2007). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(c) (2007). In effect, the service- connected disability, to be a contributory cause of death, must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. Id. It is not sufficient to show that it casually shared in producing death; instead, a causal relationship must be shown. Id. Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death; this requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312 (c)(3) (2007). Under 38 C.F.R. § 3.312(c)(4), in cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. 38 C.F.R. § 3.312(c)(4) (2007). In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. Id. The veteran died in August 2006 at the age of 86. The death certificate lists the causes of the veteran's death as chronic heart failure, renal failure, and diabetes mellitus. At the time of the veteran's death, he was service-connected for generalized anxiety disorder rated at 50 percent disabling, residuals of cold injury to the left foot rated at 20 percent disabling, residuals of cold injury to the right foot rated at 20 percent disabling, and flatfeet with a noncompensable rating. His combined rating was 70 percent from March 1, 2004. By a July 2004 RO decision, the veteran was granted total disability for individual unemployability from March 1, 2004. Although the death certificate did not list any of the veteran's service-connected disabilities as a cause of death, the appellant's representative contended in an April 2008 Appellant's Brief that the veteran's service-connected disabilities caused or significantly contributed to his death. The veteran was first service-connected in 1946 for flat feet and nervousness, each with noncompensable ratings. He did not apply for additional VA benefits until 1999. At a December 1999 VA examination, the veteran reported that he had worked as an electrician until 1982 until he had a heart attack and retired. From 1982 to 1986 he worked as a school bus driver. He was presently incapacitated and unable to work because of loss of control of his lower extremities. The examiner diagnosed the veteran with insulin dependent diabetes mellitus, diabetic amyotrophy with weakness of both lower extremities and inability to ambulate, status post transurethral resection of the prostrate, status post carotid endarterectomy, chronic obstructive pulmonary disease (COPD) and pulmonary emphysema, coronary insufficiency and angina pectoris, and mild bilateral pes planus. The veteran also was examined by a VA psychiatrist in December 1999. The veteran complained of long standing nervousness and tremors in both hands since his service in Would War II; severe pain in both legs and feet; and that his presently deteriorating condition caused his depression to be profoundly more unmanageable than in the past. The examiner diagnosed the veteran with generalized anxiety disorder - onset while serving in World War II, and major depressive disorder, recurrent, related to his deteriorating health and aging. A global assessment of functioning (GAF) score of 60 was assigned. By a February 2000 decision, the RO granted an increase in the veteran's service-connected generalized anxiety disorder from noncompensable to 30 percent disabling; the noncompensable evaluation for flatfeet was continued; and a non-service-connected pension was granted. The listed non- service-connected disabilities were an appendectomy scar, a scar on the right index finger; residuals of frostbitten feet; diabetes mellitus with bilateral lower extremity weakness, and COPD/emphysema. Although the veteran had suffered frostbite to his feet and been hospitalized when he was in the Battle of the Bulge in World War II, he was not service connected for this condition until a September 2001 decision by the RO, which assigned a 20 percent disability rating for each foot from October 5, 1999. He had previously claimed service connection for frostbite of the feet in 1946, but the decision at that time stated that the condition had not been noted in his discharge examination (the RO in September 2001 interpreted this as meaning there was no diagnosis of residuals at that time). In September 2001 the veteran's combined rating for service- connected disabilities was 60 percent from October 19, 1999. For non-service-connected pension purposes, he was rated 100 percent disabled for diabetes mellitus with bilateral lower extremity weakness, and 60 percent for COPD (a combined NSC rating of 100 percent). A July 2004 rating decision, in pertinent part, granted total disability due to individual unemployability from March 1, 2004. Review of the VA treatment reports relating to the veteran's last illness show that he was admitted to the Manchester VAMC on July 6, 2006, for a transient ischemic attack. On July 26, 2006, his renal function was noted to be worsening. He was admitted again on July 28, 2006, for pneumonia, COPD, and insulin-dependent diabetes mellitus. On August 2, 2006, he was admitted again due to a two week history of malaise, fatigue, and pneumonia, and was transferred to a nursing home where he died. Based on the foregoing medical evidence, the Board concludes that the veteran's service-connected disabilities - anxiety disorder, residuals of cold injury to the feet, and flatfeet - did not cause or contribute substantially or materially to the cause of his death. None of these service-connected conditions were such as would affect a vital organ and was of itself of a progressive or debilitating nature. The Board notes that there is no medical opinion evidence to connect the veteran's service-connected disabilities as a cause or contributing cause of the veteran's death. The appellant sought an opinion for the veteran's primary care doctor at the Manchester VAMC, Dr. M.H., who responded with a letter dated in February 2007 that briefly stated he had treated the veteran for residuals of frozen feet and anxiety disorder for which he was already service connected, and that he also had treated the veteran for multiple attributions. No opinion evidence was provided by Dr. M.H. The RO did not seek a VA medical opinion, nor does the Board deem one is necessary, in view of its finding that the weight of the competent medical evidence of record shows no causal or contributory relationship between the veteran's service- connected disabilities and his death. The record clearly establishes that the veteran's general health had been progressively deteriorating due to non- service-connected debilitating problems since a heart attack in 1982. In 1999 the veteran's anxiety disorder/depression was noted to be worsening because of his deteriorating health/aging condition (not that his health was deteriorating because of his anxiety disorder/depression). His flat feet were rated as mild and noncompensable. In an April 2004 VA examination, the examiner's diagnosis noted that there were no specific residuals from the old World War II cold injury. The record shows that the more serious lower extremity problem was due to diabetic amyotrophy which rendered the veteran unable to walk. The VA treatment reports in July and August 2006 relating to the veteran's last illness also support the causes of death noted in the death certificate: chronic heart failure, renal failure, and diabetes, none of which had any connection to the veteran's military service. For all the foregoing reasons, the Board finds that the weight of the evidence is against the appellant's claim, and it must therefore be denied. III. 38 U.S.C.A. § 1318 If a veteran's death is not determined to be service connected, a surviving spouse may still be entitled to DIC benefits. Pursuant to 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. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of or entitled to receive compensation at the time of death for service-connected disabilities rated totally disabling. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22. Specifically, the Secretary shall pay benefits to the surviving spouse and children of a deceased veteran who dies, not as the result of his own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or was entitled to receive retirement pay) compensation at the time of death for a service-connected disability that either was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or, if so rated for a lesser period, was so rated continuously for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or, where the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated as totally disabling for a period of not less than one year immediately preceding death. See 38 U.S.C.A. § 1318(a), (b); 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 (2007). Here, the veteran was only rated totally disabled due to his service-connected disabilities since March 1, 2004, less than 10 years prior to his death in August 2006. In his April 2008 Appellant's Brief, the appellant's representative, citing the case of Cole v. West, 13 Vet. App. 268 (1999) has contended that the veteran was totally disabled for the period of 10 years prior to his death based on the hypothetical "entitled to receive" theory. However, the Board notes that the law has changed since the 1999 Cole decision. In January 2000, in response to the Cole and related Court decisions, VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had, in fact, established a right to receive total service-connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for clear and unmistakable error (CUE) in the adjudication of a prior claim or claims. 65 Fed. Reg. 3,388 (Jan. 21, 2000). The regulation, as amended, thereby prohibited "hypothetical entitlement" as a basis for establishing eligibility. On April 5, 2002, VA amended 38 C.F.R. § 20.1106 (noted in its current version above) to provide that there would be no "hypothetical" determinations under 38 U.S.C.A. § 1311(a) on the question as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit. See 67 Fed. Reg. 16,309-16,317 (April 5, 2002). Therefore, in sum, after much consideration of the issues by the Court in decisions not further discussed here, the current state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318, must be adjudicated with specific regard given to VA decisions made during the veteran's lifetime, and without consideration of "hypothetical entitlement" for benefits raised for the first time after a veteran's death. In this case, the Board finds that the criteria for DIC benefits under the provisions of 38 U.S.C.A. § 1318 are not met. As noted above, "entitled to receive" includes consideration of whether the veteran, during his lifetime, had, in fact, established a right to receive total service- connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, but for CUE in the adjudication of a prior claim or claims. 38 C.F.R. § 3.22(b)(1). Clear and unmistakable error is a rare kind of error and a claim of such error must be raised with specificity. Fugo v. Brown, 6 Vet. App. 40 (1993) (merely to aver that there was clear and unmistakable error in a case is not sufficient to raise the issue). Here, the veteran was service connected with noncompensable ratings for flat feet and nervousness for 53 years from 1946 to 1999 when he filed for increased rating. By a February 2000 decision, in pertinent part, he was granted a non- service-connected pension, and a special monthly pension based on the need for aid and attendance effective from October 5, 1999. By a July 2004 rating decision, the RO granted total disability due to individual unemployability for service-connected disabilities effective from March 1, 2004. The appellant has not claimed CUE with any decisions made by the RO since 1999. The unfortunate fact is that there are no decisions prior to the February 2000 decision which would, if CUE were alleged and found to exist, provide the necessary 10 year period of total service-connected disability to meet the criteria for DIC pursuant to 38 U.S.C.A. § 1318. It is an impossibility. In conclusion, since at the time of his death in August 2006, the veteran was only receiving TDIU effective from March 1, 2004, the criteria of a 10 year period of total disability prior to his death are not met. He also was not continuously rated as totally disabled for five years after service and leading up to his death. Therefore, the appellant's claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 must be denied. ORDER Service connection for the cause of the veteran's death is denied. DIC under the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs