Citation Nr: 0813976 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-03 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for ischemic heart disease, for accrued benefit purposes. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or being housebound, for accrued benefit purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The veteran was beleaguered from December 1941 to May 1942, was missing in May 1942, was a Prisoner of War (POW) from May 1942 to January 1943 and had Regular Philippine Army Service from August 1945 to February 1946. The appellant is his widow. This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant's appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (2007). In July 2007, the Board remanded the claim to provide the appellant with notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA). FINDINGS OF FACT 1. When he died, the veteran had pending claims seeking service connection for ischemic heart disease and entitlement to SMC; a claim for accrued benefits was received within one year after his death. 2. Ischemic heart disease was not manifested in service, was not manifested in the first year following the veteran's separation from service, and was not otherwise shown to have been related to the veteran's service. 3. It is not shown that the veteran had localized edema as a prisoner of war (POW). 4. The medical evidence does not show that the veteran's service-connected pulmonary tuberculosis (PTB) was so disabling as to render him unable to care for his daily personal needs or protect himself from the hazards and dangers of daily living without care or assistance on a regular basis, nor was it shown that it confined the veteran to his immediate premises. CONCLUSIONS OF LAW 1. Service connection for ischemic heart disease, for purposes of accrued benefits is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107, 5121 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309, 3.1000 (2007). 2. The criteria for SMC based upon the veteran's need for the regular A&A of another person or on account of being housebound, for the purposes of accrued benefits, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5121(a) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352(a), 3.1000 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The VCAA in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the appellant's claims for service connection, for purposes of accrued benefits. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claims seeking service connection for ischemic heart disease and entitlement to SMC for accrued benefits purposes were considered on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of her claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An August 2007 letter (post July 2007 Board remand) explained the evidence necessary to substantiate her claims, the evidence VA was responsible for providing, the evidence she was responsible for providing, and advised her to submit any evidence in her possession or provide any information she had regarding her claims. She has had ample opportunity to respond/ supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. The claims were readjudicated by a November 2007 supplemental statement of the case. While she was not advised of the criteria governing effective dates of awards until January 2008 correspondence, she is not prejudiced by any lack of such notice (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as effective date criteria have no significance unless the claims are allowed, and the decision below does not do so. Regarding the duty to assist, accrued benefits claims are decided based on the evidence of record when the veteran died. 38 C.F.R. § 3.1000(d)(4). Hence, there is nothing further for VA to do to assist the appellant. VA's notice and assistance obligations are met. The appellant is not prejudiced by the Board's proceeding with appellate review. II. Factual Background. Legal Criteria, Analysis 1. Service Connection for Accrued Benefits Purposes Upon the death of a veteran, periodic monetary benefits to which the veteran was entitled on the basis of evidence in the file at the date of death, and due and unpaid, may be paid to the spouse of the veteran (and certain others). 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) construed the provisions of 38 U.S.C.A. §§ 5121 and 5101(a), and found that, in order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits, or must have been entitled to them under an existing rating or decision. In addition, 38 U.S.C.A. § 5121(c) requires that applications for accrued benefits must be filed within one year after the date of the veteran's death. See also 38 C.F.R. § 3.1000(c). Valid claims of service connection for ischemic heart disease and entitlement to SMC were pending when the veteran died in November 2000. As the appellant filed a claim for accrued benefits in January 2001, within the statutorily- prescribed time period, if any of the claims pending when the veteran died is meritorious she would be entitled to accrued benefits. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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 C.F.R. § 3.303. In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases (including ischemic heart disease) may be presumptively service connected if manifested to a compensable degree in the first postservice year. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a veteran is a former POW and, as such, was interned or detained for not less than 30 days, certain diseases (to include beriberi) shall be service-connected if manifested to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service, even though there is no record of such disease during service, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 1101, 1110, 1112(b), 1113, 38 C.F.R. §§ 3.1(y), 3.307(a)(5), 3.309(c)(2000). The term beriberi includes beriberi heart disease and ischemic heart disease if the former POW experienced localized edema during captivity. 38 C.F.R. § 3.309(c), Note (2000). In October 2004, VA promulgated liberalizing issue that added atherosclerotic heart disease to the presumptive diseases that can be service-connected in former POWs interned for any period of time. 69 Fed. Reg. 60089 (October 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. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service medical records, including an undated discharge examination were negative for cardiovascular abnormalities. A July 1949 VA examination was negative for any cardiovascular abnormalities. An August 1949 Hospital treatment record included a diagnosis of pulmonary tuberculosis (PTB). In an October 1950 rating decision, service connection was granted for PTB and assigned a 100 percent rating effective from March 1947. An October 1950 VA examination reported that the veteran's cardio-vascular system was normal. There was no arteriosclerosis and no edema present. Ultimately a 50 percent rating for PTB was assigned effective from 1963. A December 1993 record from Veterans Memorial Hospital included the diagnosis of arteriosclerotic heart disease and lateral wall ischemia. In a March 1994 statement, the veteran indicated that he had been bedridden since July 1993 due to diffuse rheumatism. A September 1994 statement by Dr. E. B. G. noted that the veteran had been wheelchair bound for several months and was not able to take care of his personal daily needs by himself. He was diagnosed with prostatic enlargement, arthritis, and first degree AV block. In a September 1994 statement, the veteran requested entitlement to aid and attendance. A September 1994 rating decision continued to rate PTB as 50 percent disabling and denied service connection for SMC for regular aid and attendance or for being housebound. In March 1999 correspondence the veteran raised a claim seeking an increased rating for PTB and SMC. VA examinations were scheduled in July 1999. Subsequent statements by the veteran and his son indicated that the veteran would be unable to attend the scheduled VA examinations due to being bedridden and requested a fee based exam instead. It was determined that a complete fee basis POW exam was not possible due to lack of specialists in the locality. A July 1999 Field Examination report by the veteran's neighbor found that the veteran was senile and non- ambulatory. It was noted that the veteran was already bedridden due to rheumatism. He was unable to take care of personal needs without assistance and urinated and defecated while in bed. An October 1999 statement by the veteran appeared to raise a claim seeking service connection for ischemic heart disease. A March 2000 rating decision denied service connection for ischemic heart disease and entitlement to SMC. The veteran died in November 2000, the immediate cause of death was cardiopulmonary arrest secondary to sepsis, the interval between onset and death was probably secondary chronic pyelonephritis, the antecedent cause was diabetes mellitus type 2, the underlying causes were obstructive uropathy secondary to benign prostatic hypertrophy, pulmonary tuberculosis pneumonia class III and stress bleed. At the time of his death, service connection was in effect for pulmonary tuberculosis. a. Service Connection for Ischemic Heart Disease At the time of the veteran's death the medical evidence included a December 1993 record from Veterans Memorial Hospital included the diagnosis of arteriosclerotic heart disease and lateral wall ischemia. However, there was no competent (medical) evidence that he had beriberi or ischemic heart disease during service. Also, no observations were reported indicating that the veteran had localized edema while he was a POW. The Board notes that effective October 7, 2004, Congress amended 38 C.F.R. § 3.309 to include eliminating the requirement that the disease be present while in captivity for a former POW to be afforded a presumption of service incurrence for arteriosclerotic heart disease (which encompasses ischemic heart disease) and hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia). See 69 Fed. Reg. 60089 (October 7, 2004). However, at the time the appellant filed her claim for entitlement to service connection for accrued benefits and at all times prior to October 7, 2004, 38 C.F.R. §§ 3.307, 3.309, required that localized edema be present in captivity for a POW to be afforded a presumption of service incurrence for ischemic heart disease. See 38 C.F.R. § 3.307, 3.309 (2000). As the record did does not show he had localized edema as a POW, a finding of ischemic heart disease, of itself, would not trigger application of the presumptive provisions for ischemic heart disease under 38 U.S.C.A. § 3.309(c) (2000). Under chronic diseases listed under 38 C.F.R. § 3.309(a), service incurrence or aggravation of ischemic disease may be presumed if such is manifested to a compensable degree within a year of a veteran's discharge from service (See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309). Here there is no evidence of ischemic heart disease being manifested in the first postservice year, and these presumptive provisions do not apply. Finally, there is no competent evidence that relates any post service diagnosis of ischemic heart disease to the veteran's service. Hence, there is a preponderance of evidence against the claim and it must be denied. b. Entitlement to Special Monthly Compensation (SMC) If a veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance, an increased rate of compensation (special monthly compensation) is payable. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.350(b) (2007). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be able to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352 (a) (2007). Special monthly compensation may also be paid if a veteran has a single service-connected disability rated 100 percent and either (1) has additional service-connected disability or disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disabilities. Permanently housebound means the veteran is substantially confined, as a direct result of service- connected disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2007). At the time of the veteran's death, he was service connected for PTB rated at 50 percent disabling. There is no evidence that the veteran was so helpless as to be in need of regular aid and attendance, as a result of his service-connected PTB. A September 1994 statement by Dr. E. B. G. indicated that the veteran had been wheelchair bound for several months and was not able to take care of his personal daily needs by himself due to prostatic enlargement, arthritis, and first degree AV block. A July 1999 field investigation report and the veteran, himself, indicated that the he was bedridden due to rheumatism. There is no competent evidence that the veteran was bedridden due to a service-connected disability, or PTB. There is a preponderance of the evidence against the finding that the veteran's service-connected PTB caused him to be so helpless as to be in need of regular aid and assistance. ORDER Entitlement to service connection for ischemic heart disease, for accrued benefit purposes, is denied. Entitlement to SMC based on the need for regular aid and attendance A&A or being housebound, for accrued benefit purposes, is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs