Citation Nr: 1000489 Decision Date: 01/05/10 Archive Date: 01/15/10 DOCKET NO. 07-22 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to the provisions of 38 U.S.C.A. § 1318 (West 2002). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Harryman, Counsel INTRODUCTION The Veteran had active duty from June 1971 to April 1972. He died in March 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The issue concerning service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran was not evaluated as being totally disabled as a result of a service-connected disability for 10 continuous years immediately preceding death, was not rated as being totally disabled continuously for a period of no less than five years from the date of discharge from active duty, nor was he a former prisoner of war who died after September 30, 1999. CONCLUSION OF LAW The criteria for entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. § 5103, 5103A, 5107 (West 2002). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, in Dela Cruz v. Principi, 15 Vet. App. 143 (2001), the Court held that the enactment of the VCAA does not affect matters on appeal when the question is one limited to statutory interpretation (apparently this means purely legal questions). See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002) (the veteran did not serve on active duty during a period of war and was not eligible for non-service-connected pension benefits; because the law as mandated by statute, and not the evidence, is dispositive of the claim, the VCAA is not applicable). See also VAOPGCPREC 5-2004 (no duty to notify a claimant where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit and no duty to assist a claimant where there is no reasonable possibility that such aid could substantiate the claim because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). As discussed below, the appellant's claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is being denied because of the lack of legal merit. Therefore, VA has no duty to notify or assist the appellant in conjunction with the claim. Analysis Where a veteran's death is not determined to be service- connected, a surviving spouse may still be entitled to benefits. Under 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" is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. The service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; continuously rated totally disabling for at least five years from the date of the veteran's separation from service; or the veteran must have been a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318. The total rating may be schedular or based on unemployability. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (2009); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). In this case, at the time of the Veteran's death in March 2005, he was rated 70 percent service-connected for schizophrenia, since January 1990. He had also established service connection for lumbosacral strain rated as 0 percent from April 1972. Further, the Veteran had been found to be individually unemployable due to service-connected disability from September 2000. However, because he was not rated 100 percent disabled due to service-connected disability for 10 or more years immediately preceding death or continuously rated totally disabled for at least five years from the date of his separation from service, the Board finds that the "totally disabling" requirement under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 has not been met. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. Accordingly, the appellant's claim under 38 U.S.C.A. § 1318 must be denied for lack of legal merit. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board acknowledges the appellant's assertion that the Veteran was totally disabled for VA purposes long before September 2000. However, the Board notes that the Veteran did not file a notice of disagreement with the January 2001 rating decision which granted a total disability evaluation based on individual unemployability (TIU) effective from September 7, 2000. That decision, therefore, is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (a rating decision assigning a disability rating and effective date of award becomes final if not appealed, and the only basis for challenging the effective date is a motion to revise the decision based on CUE). In that regard, no allegations have been raised that a clear and unmistakable error was made with regard to that rating decision, or any of the Veteran's earlier rating decisions. As such, the evidence remains plain on its face that the Veteran was not rated at 100 percent for 10 years prior to his death. The Veteran was awarded a TIU rating in 2000 and was discharged from service in 1972; and he was therefore not rated as 100 percent within five years since his release from active duty. Additionally, there is no evidence that the Veteran was ever a prisoner of war. The Board notes that the issue concerning service connection for the cause of the Veteran's death remains on appeal and is addressed in the remand section below. However, considering the above analysis, the ultimate determination regarding that issue will have no effect on the appellant's entitlement to § 1318 DIC benefits. The appellant is not prejudiced by the Board's consideration of this issue at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the claim for DIC pursuant to the provisions of 38 U.S.C.A. § 1318 must be denied. ORDER DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. REMAND The Veteran's death certificate states that he died in March 2005 while he was an inpatient at Jackson Hospital in Montgomery, Alabama. Review of the claims file does not disclose that any effort has been made to obtain the records of the Veteran's final hospitalization. Further, although VA treatment reports dated from April 2001 through July 2004 were obtained in conjunction with the appellant's claim, the record does not indicate whether the Veteran may have been treated by VA after July 2004. Those reports do show that he was hospitalized by VA for treatment of his service-connected schizophrenia at least twice during the last two years of his life and also received outpatient treatment prior to July 2004. The Board also observes that the Veteran's schizophrenia was rated 70 percent disabling at the time of his death and that VA had found him to be individually unemployable due to service-connected disability. Finally, the appellant has alleged that the Veteran abused alcohol and drugs to self-treat his service-connected schizophrenia, and that the combined effects of his schizophrenia and substance abuse caused his diabetes and hypertension, which the death certificate indicates were contributory causes of his death. The Board finds that the records of the Veteran's final hospitalization are relevant to adjudication of the cause of death issue on appeal and, therefore, must be requested. In addition, any VA treatment records dated after July 2004 should be obtained; if no such records exist, the file should reflect that fact. Finally, in light of the severity of the Veteran's service-connected schizophrenia and the fact that psychiatric disorders are known to impact physical ailments, the Board finds that VA's duty to assist requires that a medical opinion should be requested concerning the effect the Veteran's service-connected schizophrenia had on the conditions that caused his death. 38 C.F.R. § 3.159(c)(4) (2009). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records for the period between July 2004 and the Veteran's death. If no further records are available, that fact should be noted in the record. 2. After obtaining any needed signed authorization from the appellant, request copies of the records of the Veteran's final hospitalization at Jackson Hospital in Montgomery, Alabama. Associate with the claims file all records so obtained. 3. Then, send the claims file to a VA health care provider for a medical opinion. After reviewing the claims file, the examiner should provide an opinion as to whether it is as likely as not (i.e., 50 percent probability or greater) that the Veteran's service- connected schizophrenia and lumbosacral strain contributed substantially and materially to cause the Veteran's death. The examiner should specifically address the relationship, if any, between the Veteran's schizophrenia and his substance abuse, and the effect of those disorders, if any, on the conditions that were noted to have caused his death. If the Veteran's history of substance abuse is found to have contributed to the cause of his death, the examiner should state whether it is as likely as not that the Veteran's service connected schizophrenia caused or aggravated his substance abuse problem. All opinions should be supported by adequate rationale. If the examiner cannot provide an opinion without resolving to mere speculation, he or she should make such a finding. However, as above, he or she should provide rationale for the non-opinion. 4. Upon completion of the requested development, again adjudicate the issue concerning service connection for the cause of the Veteran's death. If the appellant's claim is not granted to her satisfaction, provide her and her representative with a supplemental statement of the case (SSOC) and give them an opportunity to respond before returning the case 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. 2009). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs