Citation Nr: 0938944 Decision Date: 10/14/09 Archive Date: 10/22/09 DOCKET NO. 03-28 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependents' Educational Assistance benefits under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from March 1942 to June 1943. He died in March 2002. The appellant is his widow. These matters came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied service connection for the cause of the Veteran's death and Dependents' Educational Assistance (DEA) benefits. In March 2005, the Board remanded the claims to the RO for additional development. In a January 2006 decision, the Board denied the appellant's claims. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court), which, in an October 2008 memorandum decision, set aside the Board decision and remanded the claims for further adjudication consistent with the opinion. The appellant was afforded an RO hearing to address her claims in December 2003, and a transcript of that hearing is contained in the claims folder. In October 2004, the appellant withdrew her request for a Board hearing. 38 C.F.R. § 20.702(e) (2008). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The certificate of death indicates that the Veteran died in March 2002, lists his immediate cause of death as cerebrovascular disease, and notes that significant conditions contributing to his death were diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome. 2. During the Veteran's lifetime, service connection was established only for schizophrenic reaction. 3. The Veteran's service-connected schizophrenic reaction or treatment for that disorder did not cause or contribute to the cause of death. 4. The cause of death and conditions contributing to the cause of death were not causally related to the Veteran's service-connected schizophrenic reaction. 5. The Veteran's cerebrovascular disease, diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome, and any causally associated diseases or disorders, were not present during service and did not manifest to a compensable degree within one year from the date of the Veteran's separation from service, and there is no medical evidence that otherwise establishes that these diseases were incurred in service. 6. No claim for VA benefits was pending at the time of the Veteran's death. 7. The statutory criteria for eligibility for dependents' educational assistance have not been met. CONCLUSIONS OF LAW 1. A disorder causing or contributing to the Veteran's death, including cerebrovascular disease, diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome, was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2008). 2. The statutory requirements for Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (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(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. Specific to claims for Dependency and Indemnity Compensation (DIC) benefits, to include service connection for the cause of the veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a June 2002 pre-rating letter provided notice to the appellant regarding the information and evidence needed to substantiate a claim for DIC benefits, including service connection for the cause of the Veteran's death, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2003 rating decision reflects the initial adjudication of the claim after issuance of this letter. The Board notes that the appellant was not specifically informed of the condition for which the Veteran was service- connected at the time of his death. However, given the appellant's assertion that lithium treatment for the Veteran's service-connected schizophrenic reaction caused or contributed to the cause of his death, the Board finds that she had actual knowledge of the condition for which he was service-connected. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Further, as the appellant has consistently asserted that his schizophrenic reaction caused or contributed to his death, the Board finds that she is not prejudiced by the omission of specific notice as to establishing service connection for the cause of the Veteran's death based on a condition not yet service- connected. The Board also notes that the appellant has not been provided specific notice regarding effective dates. However, because the Board's decision herein denies the claim for service connection for the cause of the Veteran's death, no effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, the Board finds that no prejudice to the appellant will result from the adjudication of these claims in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records, private medical records, letters from private physicians, VA medical opinions, and statements from the appellant and her representative. The appellant has not indicated that she has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The appellant and her representative have been accorded ample opportunity to present evidence and argument in support of her appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2008). Initial Matter The Board initially wishes to make clear that it is aware of the Court's instructions that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). . . . A remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board's analysis has been undertaken with that obligation in mind. However, the Board notes that the Court's October 2008 decision did not identify any flaw in the January 2006 decision other than the Board's failure to properly identify a January 2003 e-mail and any effect the Board's erroneous understanding of the author's credentials might have. That is, the Court articulated no other basis to question the Board's denial of service connection for the cause of the Veteran's death. The Board is aware of the Court's often stated interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ["Court will [not] review BVA decisions in a piecemeal fashion"]; Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]; Cerullo v. Derwinski, 1 Vet. App. 295, 200 (1991) [one reason advanced by Court for statutory interpretation was that it would "help[ ] prevent the wasting of judicial time and resources"]. The Board is confident that if there were other substantive errors in the Board's prior decision this would have been brought to the Board's attention by the Court for the sake of judicial economy. Cause of the Veteran's Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2008). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008). Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service- connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1). The Veteran's certificate of death indicates that he died in March 2002 at Shadyside Hospital, lists his immediate cause of death as cerebrovascular disease, and notes that significant conditions contributing to his death were diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome. The certificate of death lists no other causes of death or conditions contributing to death. An autopsy was not performed, and the case was not referred to a medical examiner or coroner. At the time of the Veteran's death, he was service-connected for schizophrenic reaction, rated 70 percent disabling. The appellant contends that lithium treatment for the Veteran's service-connected schizophrenic reaction caused or contributed to the cause of the Veteran's death, as a result of lithium toxicity. To support her contention, she submitted two letters by Dr. Bash, a private physician. In these letters, Dr. Bash presented medical opinions supportive of her claim. In the first letter, in March 2005, the substance of his arguments, to the extent that they are relevant to the claim, were that the Veteran, in his compromised health, suffered from toxic effects of elevated lithium levels as a result of treatment for his service- connected schizophrenic reaction, and this lithium toxicity resulted in reduced brain and cardiovascular function which ultimately caused or contributed to his death. In support of this opinion, Dr. Bash noted that the Veteran was administered large doses of Valsartan, which, he contended, was a diuretic that would have increased the effect of the Veteran's low sodium levels and thereby increased the effect of the Veteran's lithium levels, contributing to their toxic effect. Dr. Bash further argued that the Veteran's initial presentation at his terminal hospitalization with symptoms of mental status changes, shaking, diaphoresis, slurred speech, dysphagia, difficulty forming words, as well as presenting with hypoglycemia, high lithium levels, low sodium levels, bradycardia, and arrhythmia, were all consistent with lithium toxicity. In a January 2003 e-mail to a VA psychologist, the Veteran's treating VA clinical pharmacist addressed the allegation that lithium toxicity caused or contributed to the Veteran's death. The pharmacist noted the presence of multiple disorders that may have caused or contributed to the Veteran's assessed terminal stroke, including hypertension, renal insufficiency, and coronary artery disease. The pharmacist also noted that the Veteran had fragmented care as a result of his seeking treatment from VA and the private sector, including a private internist and cardiologist. The pharmacist observed that the Veteran did not keep consistent VA mental health clinic visits, noting that more than a year had lapsed between his recent and last prior appointments. The pharmacist then noted the question of whether the Veteran was prescribed a medication that interacted with his lithium. The pharmacist noted that Valsartan causes loss of sodium, which may result in increased lithium levels, but observed that at the time the Veteran was prescribed the Valsartan reports of interactions between the medication and lithium were sparse. The pharmacist noted that the most recent chemistry results did not indicate significant renal compromise or loss of sodium to be concerned about lithium intoxication. The pharmacist observed that there is no documentation indicating that the Veteran contacted the VA regarding any problems related to his medications or his dizziness states. The pharmacist noted that the Veteran's lithium level at admission was 1.5 mEq/L and related that the reference range used by the Pittsburgh VA Health Care System was 0.6 to 1.5 mEq/L. The pharmacist further noted that lithium levels of 1.5 to 2.5 mEq/L were generally associated with mild symptoms including neuromuscular excitability, irregular course tremors, fascicular twitching, sluggishness, ataxia, nausea, vomiting, diarrhea, sinus bradycardia, and hypotension. The pharmacist noted that volume depletion can lead to lithium toxicity but that there was no way of knowing if the Veteran was well hydrated at home. The pharmacist also noted that the Veteran had been found to have circulating antiphospholipid antibodies and lupus anticoagulant, factors that predispose a person to thrombosis. The pharmacist opined that the Veteran suffered a stroke because his overall condition predisposed him to having a stroke, not because his lithium level was somewhat elevated. A VA examiner in a January 2003 report provided a medical opinion based on review of the claims folder and associated medical record. He addressed the causes of the Veteran's death including as may be related to service-connected disability. The examiner noted the appellant's contention that lithium prescribed by VA as treatment for the Veteran's service-connected psychiatric disorder caused or contributed to his death. However, the VA examiner noted that Shadyside Hospital lab work associated with the Veteran's terminal hospitalization at that facility in March 2002 showed maximally borderline elevated lithium levels. These included a reading of 1.5 mEq/L on March 20, which was above the reference range of 0.6 to 1.2 used at the hospital but was still within the reference range of 0.6 to 1.5 mEq/L used by the Pittsburgh VA Health Care System. The examiner noted that following the discontinuance of lithium carbonate (LiCO3) readings from March 21 to March 25 were between 0.8 mEq/L and 1.4 mEq/L. The examiner further noted that mildly elevated lithium levels in the 1.5 to 2.5 mEq/L range were generally associated with mild symptoms including neuromuscular excitability, irregular course tremors, fascicular twitching, sluggishness, ataxia, nausea, vomiting, diarrhea, sinus bradycardia, and hypotension. The VA examiner further noted that the Veteran had multiple medical problems that were more likely than lithium toxicity to have caused or contributed to his stroke, including renal insufficiency and coronary artery disease. The examiner also noted the inconsistent medical care pursued by the Veteran, with poor coordination of treatment and treatment sought from multiple sources including VA as well as a private internist and cardiologist. The examiner noted that the treatment records from Shadyside Hospital do not list the Veteran's lithium levels as a contributing cause of his terminal illnesses or of his death. While the examiner noted that the Veteran was taking Valsartan, which may result in sodium depletion which in turn could result in increased lithium levels, the examiner emphasized that this did not appear to have been a problem in this case, as the Veteran's recent chemistry results did not show significant renal compromise or significant loss of sodium so as to make lithium concentrations a concern. The examiner also noted that dehydration might result in elevated lithium levels, but observed that dehydration was not found to be a problem in the Veteran's case. The examiner concluded that there was no indication that the Veteran's mildly elevated lithium levels caused or contributed in any way to his death given the medical history and current research. A review of the March 2002 Shadyside Hospital terminal hospitalization records shows that indeed seven other disorders were listed prior to lithium toxicity: cardiovascular disease, brain stem stroke, hypertension, diabetes mellitus, coronary artery disease, antiphospholipid syndrome, and bipolar depression. While the Veteran presented to the hospital with confusion and obtundation which generally persisted throughout the hospitalization, this was not attributed to lithium toxicity in the hospital records, and was also not associated with his service- connected schizophrenic reaction. Rather, signs of stroke were present, including one-sided nonreactiveness, non-use, and neglect; and reports of several recent mini-strokes were also noted. A treating diagnosis upon terminal hospital consultation on March 16, 2002 was severe bradycardia with possible sick sinus syndrome. That consulting physician suggested a possible need of dual chamber pacemakers. The physician noted that the Veteran had to be watched very closely in light of his cardiovascular and cerebrovascular condition. Irregular/unstable heart rhythms were present during the hospitalization of this elderly Veteran, and the hospital consulted with the Veteran's family making use of palliative and bioethics resources. It was the decision of the family to elect for no extraordinary measures, and to limit treatment to medical measures, not including pressor or antiarrhythmics. Hence, the appellant was a party to or aware of private medical care end-of-life decisions involving no use of extraordinary measures to control arrhythmia, which was unrelated to service or service-connected disability, and which may have caused or contributed to the cause of the Veteran's death. On the March 16, 2002 consultation report, a lithium level of 1.9 mEq/L was recorded. Assessments then also included coronary artery disease with previous coronary artery bypass graft in December 1999; cerebrovascular accident and history of transient ischemic attacks; change in mental status and obtundation, most likely a metabolic process - rule out sepsis or cerebral infarction; diabetes mellitus; hypoglycemia (a blood sugar level of 40 was recorded upon his being taken to the hospital); left bundle branch block; cardiomyopathy with left ventricular ejection fraction of approximately 40%; bipolar disorder; moderate carotid stenosis; aortic valve sclerosis; mild chronic obstructive pulmonary disease; and mild anemia. Further evaluation and testing in the course of the hospitalization resulted in a finding of antiphospholipid antibody syndrome. The Veteran initially presented to the terminal hospitalization with marked sinus bradycardia, but a rhythm shift to a normal sinus rhythm was recorded by echocardiogram (ECG) on March 19, though lateral ST-T abnormalities were then present and possibly ischemia. A cardiac doppler flow study showed a dilated left ventricle with concentric hypertrophy and a low normal ejection fraction of 53%; a calcified aortic valve indicative of heavy sclerosis without stenosis; pulmonary hypertension; mild mitral and tricuspid regurgitation; lipomatous infiltration of the inter-atrial septum; and mitral annular calcification. Head and brain CTs were performed but did not reveal acute cerebral infarct or hemorrhage, though an old lacunar infarct of the right basal ganglia was observed. An electroencephalogram (EEG) showed an abnormality of diffuse slowing consistent with encephalopathy of a variety of etiologies. As the VA examiner explained in his May 2005 addendum report, again based on review of the claims folder, the medical opinion letter of Dr. Bash was filled with errors, misinformation, and inaccuracies. Among these included: Dr. Bash's contention that Valsartan was a diuretic, whereas in fact it is an angiotensin II type I receptor antagonist approved for treatment of hypertension and of heart failure; Dr. Bash's failure to note relevant medical facts, including the presence of poorly controlled hypertension and at times elevated glucose levels during the terminal hospitalization, the Veteran's history of four mini-strokes over the prior year, the Veteran's presenting symptoms at the terminal hospitalization being consistent with mini strokes and strokes and not with lithium toxicity, the cessation of lithium treatment during the terminal hospitalization, and the absence of any findings of toxic effects of lithium in any of the medical treatment records. The Board observes that an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, based on the clear and reasoned statements of the VA examiner and the supporting medical record, the Board agrees that Dr. Bash's opinions were based on inaccurate factual premises. Hence, the Board must afford no probative value to the medical opinions of Dr. Bash. The Board notes that Dr. Bash perpetuated these errors, misinformation, and inaccuracies as bases for his September 2005 supplemental statement, and hence that further statement also cannot be afforded any probative value. In that September 2005 supplemental statement, Dr. Bash made much of the fact that the Veteran had a CT scan that was negative four days prior to his death, and contended that this was inconsistent with the Veteran dying of a stroke. On that basis, he argued again that lithium toxicity contributed to his death. However, this additional argument does not change the facts upon which Dr. Bash relied for his opinion that lithium toxicity caused or contributed to death. Because those facts were inaccurate, Dr. Bash's earlier opinion that lithium toxicity caused or contributed to the cause of death can still be afforded no probative value. Id. at 461. Regarding Dr. Bash's latter opinion that a stroke did not kill the Veteran, the Board notes that Dr. Bash presented no medical basis for his opinion that a CT scan four days prior was preclusive of the occurrence of a subsequent stroke. Hence, without further evidence, that opinion is of little probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999). In any event, that further opinion does not further the claim, since it establishes no causal association between the Veteran's period of service or service-connected schizophrenic reaction, and the cause of his death. Dr. Bash, in the September 2005 statement, also argued that the negative head CT scan was compatible with lithium toxicity as a major contributor to his demise. This argument amounts to a negative inference. A negative head CT scan is undoubtedly also compatible with any myriad of other conditions which would not show up on a head CT scan. That fact does not in itself support any causal link between elevated lithium levels and the cause of the Veteran's death. Hence, it does not support the claim. As the VA examiner noted in the May 2005 addendum statement, all VA readings taken of the Veteran's lithium levels showed them to be within normal limits, and readings taken initially at his Shadyside terminal hospitalization showed them to be only mildly elevated, but still within the norm by VA standards. The Board notes that the appellant herself has made various assertions concerning a causal relationship between treatment, including with lithium for the Veteran's schizophrenic reaction, and the cause of the Veteran's death. However, as a layperson, she is not qualified to render an opinion concerning questions of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, in the absence of cognizable (medical) evidence of a causal link between the Veteran's period of service, his service-connected schizophrenic reaction, or any treatment for that schizophrenic reaction, and the cause of the Veteran's death or any condition significantly contributing to death, and in view of medical evidence showing multiple medical disorders not shown to be related to service or a service-connected disorder causing or contributing to the cause of death, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.312. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dependents' Educational Assistance Educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2008). In this case, the Board has determined that the Veteran did not die of a service-connected disability. The record also reflects that the Veteran did not have a disability evaluated as total and permanent in nature resulting from a service- connected disability at the time of his death. Accordingly, the appellant cannot be considered an "eligible person" entitled to receive educational benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3021. At the time of the Veteran's death, he was service-connected for schizophrenic reaction, with a rating of 70 percent assigned since February 1980. He had claimed entitlement to a total disability rating based on individual unemployability (TDIU) due to this service-connected disability, but that claim was denied in May 2000. The Veteran did not appeal the decision, and hence the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). The medical record does not reflect that the Veteran was unemployable The Veteran was discharged from the Navy on a medical basis with the diagnosis of dementia precox. He was granted service connection for the disorder by a September 1944 rating action assigning a 100 percent disability rating beginning June 28, 1943, reduced to 50 percent effective August 26, 1944, based on resumed competence. By a June 1945 rating action, the rating assigned was reduced to 10 percent effective August 12, 1945. A September 1949 rating action confirmed the 10 percent evaluation then assigned. In a rating action in 1958, the Veteran had been rated 100 percent disabling for his schizophrenic reaction for a period from November 8, 1955 to June 30, 1958, with a reduction to 70 percent from July 1, 1958. The record reflects that the Veteran was hospitalized at VA again for his schizophrenic reaction from December 12, 1979 through January 9, 1980, and he was again assigned a 100 percent evaluation for that period of hospitalization, effective through January 31, 1980. The 70 percent evaluation was re-assigned effective from February 1, 1980. The record reflects that the Veteran had productive employment following these hospitalizations, and at no time between February 1980 and his death was he found to be completely disabled or unemployable due to his service-connected schizophrenic reaction. Hence, the claim of entitlement to DEA benefits does not have the requisite supporting service connection for the cause of the Veteran's death, or have supporting service-connected disability that was total and permanently disabling at the time of death, and the Veteran was not unemployable due to service-connected disability at the time of death. As such, the appellant does not meet eligibility criteria for those benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3021. The preponderance of the evidence is thus against the claim, and, accordingly, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DEA under 38 U.S.C. Chapter 35 is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs