Citation Nr: 1007457 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 09-08 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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. 3. Entitlement to special monthly compensation based on the need for regular aid and attendance, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active military service from March 1944 to January 1950. He died on December [redacted], 2005, and the appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2010, the appellant provided testimony at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on December [redacted], 2005; the death certificate listed the cause of death as ventricular fibrillation due to coronary artery disease. Other significant conditions were diabetes and atrial fibrillation. 2. At the time of the Veteran's death, service connection was in effect for rheumatoid arthritis evaluated as 100 percent disabling, from April 21, 2003. 3. The competent evidence does not establish that the Veteran's death was causally related to active service. 4. For purposes of accrued benefits, the Veteran's rheumatoid arthritis rendered him unable to care for daily personal needs without regular supervision from others or to protect himself from the hazards and dangers of his daily environment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1137, 1310, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2009). 2. The criteria for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have not been met. § 1318, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.22, 3.102, 3.159 (2009). 3. The criteria for special monthly compensation based on the need for the regular aid and attendance of another person, for purposes of accrued benefits, have been met. 38 U.S.C.A. § 1502 (West 2002 & Supp. 2009); 38 C.F.R. § 3.352 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in March 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA provided adequate notice of how disability ratings and effective dates are assigned. Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. Generally, section 5103(a) notice for a DIC case must 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. In addition, the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 20 Vet.App. 1 (2006). In the instant case, the record shows that in the March 2006 VCAA letter, the appellant was informed of the information and evidence necessary to substantiate a claim for DIC benefits. The appellant was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). Although the March 2006 VCAA letter did not list the disability for which the Veteran was service-connected as outlined in Hupp, the hearing testimony clearly indicated that the appellant was aware of the disability for which the Veteran was service-connected and the evidence needed to support her claim. Thus, as the appellant had actual knowledge of the requirements set out Hupp, the appellant is not prejudiced by the Board in proceeding with the issuance of a final decision in this case. In sum, as the appellant is found to be clearly aware of what she needs to present in order to prevail in this claim, there is no reasonable basis to provide the appellant with additional notice regarding information she already knows. Her arguments at the Board hearing clearly support this finding. Further, VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The appellant was afforded a meaningful opportunity to participate in the adjudication of the claim and the claim was readjudicated in a February 2009 statement of the case and a November 2009 supplemental statement of the case. The evidence of record, to include that discussed above, rebuts any suggestion that VA's efforts to provide notice prejudiced the appellant. In Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the Federal Circuit held that VA's duty to obtain a medical opinion under 38 U.S.C. § 5103A(d) does not apply to a DIC claim, as the applicability of this provision is explicitly limited to claims for disability compensation. Moreover, the Board notes that 38 U.S.C. § 5103A(a) does not always require VA to assist the claimant in obtaining a medical opinion or examination. Under § 5103A(a), VA only needs to make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." Here, as will be discussed in greater detail below, the Board finds that there is no evidence that the disabilities that caused or contributed to the Veteran's death had their onset in service and there is no competent evidence suggesting a link between these disabilities and his active service. Further, there is no competent evidence to suggest that the Veteran's service-connected rheumatoid arthritis caused or contributed to his death. Moreover, there is no medical evidence of record showing a link between any other disability to service or the cause of death. Thus, notwithstanding the fact that VA had no obligation to obtain a medical opinion, the Board finds there was no basis to obtain one. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Service connection for cause of death The appellant is claiming entitlement to service connection for the cause of the Veteran's death. She alleges that the Veteran's service-connected rheumatoid arthritis caused or contributed to his death. She has offered no supporting medical evidence. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Service connection will be determined by exercise of sound judgment, without recourse to speculation and after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran to include autopsy reports. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.312. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. In this case, the Veteran died on December [redacted], 2005. The death certificate indicates that the immediate cause of death was ventricular fibrillation due to coronary artery disease. Other significant conditions listed were diabetes and atrial fibrillation. At the time of the Veteran's death, service connection was in effect for rheumatoid arthritis evaluated as 100 percent disabling, from April 21, 2003. The available service records show no findings of ventricular fibrillation or coronary artery disease during the Veteran's period of service. Additionally, post-service medical evidence does not show any treatment or diagnosis referable to ventricular fibrillation due to coronary artery disease, nor does the appellant indicate that the coronary artery disease noted on the death certificate had been ongoing since service. Thus, there is no continuity of ventricular fibrillation or coronary artery disease symptomatology demonstrated either by the documented clinical records or the appellant's statements. Accordingly, there is no basis for finding that the ventricular fibrillation due to coronary artery disease was causally related to the Veteran's service. Moreover, there is no competent evidence of record suggesting a relationship between the cause of the Veteran's death and service. Post service medical records reveal the heart and great vessels were found to have been normal in a September 1974 VA examination, over 24 years after service. There are no other medical records until approximately 1998 which initially note that the Veteran was wheelchair bound and had several debilitating medical conditions including coronary artery disease. In the present case, the appellant does not indicate that the Veteran's coronary artery disease was ongoing since service. Therefore, the absence of documented treatment is found to be more probative than any implied statements of continuity of the Veteran's coronary artery disease since discharge. Accordingly, continuity of symptomatology is not established by either the competent medical evidence or the appellant's statements. The appellant may believe that the Veteran's ventricular fibrillation due to coronary artery disease was due to his active service, or that his service connected rheumatoid arthritis caused or contributed to his death. However, the question of etiology involves complex medical issues which she, as a layperson, is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, there is no basis for a grant of service connection for the cause of the Veteran's death since there is no evidence that his death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54- 56 (1990). II. DIC benefits pursuant to 38 U.S.C.A. § 1318 VA will pay DIC benefits pursuant to 38 U.S.C.A. § 1318 if the Veteran's death was not the result of willful misconduct and, at the time of death, any one of the three following circumstances existed: 1) the Veteran was receiving or entitled to receive compensation for service connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death; 2) the Veteran had been rated 100 percent disabled since release from active duty and for at least five years immediately preceding death; or 3) the Veteran was rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death and was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C.A. §§ 1318, 5312; 38 C.F.R. § 3.22. The phrase "entitled to receive" means that, at the time of death, the Veteran had a service-connected disability rated by VA as totally disabling, but was not actually receiving compensation because: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation to offset an indebtedness of the Veteran; (3) the Veteran had not received total disability compensation solely because of clear and unmistakable error in a VA decision; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C.A. § 1174(h)(2); (6) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to receive continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22(b). The appellant in this case is not entitled to DIC benefits under 38 U.S.C.A. § 1318 because the Veteran did not meet any of the criteria in the applicable statute and regulation at the time of his death. At the time of the Veteran's death he was service-connected for rheumatoid arthritis, evaluated as 100 percent disabling from April 21, 2003. As he died in December 2005, the requirement that a total disability be in effect for the last 10 consecutive years prior to death were not met. There is no evidence or allegation that any other theory of entitlement to benefits under 38 U.S.C.A. § 1318 or 38 C.F.R. § 3.22 is applicable in this case, to include that the Veteran was rated 100 percent disabled since release from active duty, that he was a POW, that there was clear and unmistakable error in a prior final rating decision, or that there was an absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. Accordingly, entitlement to DIC under 38 U.S.C.A. § 1318(b) must be denied as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). III. Aid and attendance, for purposes of accrued benefits The law and regulations governing claims for accrued benefits, as applicable to this case, state that, upon the death of a Veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he was entitled at the time of death based on existing rating decisions or other evidence that was on file when the Veteran died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2009). In Jones v. West, the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, "for a surviving spouse to be entitled to accrued benefits, the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones, 136 F.3d 1296, 1299 (Fed. Cir. 1998). After a review of the evidence, the Board finds that the Veteran had a pending claim of entitlement to aid and attendance at the time of his death. Specifically, he filed a claim in August 2005, but died in December 2005, prior to the claim being decided by the RO. Therefore, at the time of death, it was still "pending" for purposes of the regulations. 38 C.F.R. § 3.1000(d)(5). Aid and attendance is authorized when a Veteran is helpless or so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351. A Veteran will be considered in need of aid and attendance if he is blind or so nearly blind so as to have corrective vision of 5/200 or less, bilaterally, or concentric contraction of the visual field of five degrees of less; if the Veteran is confined to a nursing home because of mental or physical incapacity; or there is a factual need for aid and attendance. Id. The following factors will be accorded consideration in determining the need for aid and attendance: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a 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, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). A finding that the Veteran is "bedridden" will provide a proper basis for the determination. Bedridden will be that condition which, through its essential character, actually requires that the Veteran remain in bed. The fact that a Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 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. Id. The particular personal functions that 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 a 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. Id. The Veteran was service connected for rheumatoid arthritis, evaluated at 100 percent disabling, as of August 19, 2005, the date of receipt of the Veteran's claim. An August 2005 VA aid and attendance examination noted that the Veteran was bedridden with complete loss of anal and bladder sphincter control; incapable of getting around or walking without assistance; could not dress or undress, attend to the needs of nature, wash and keep himself clean and presentable, or protect himself from everyday hazards. The examiner believed that the Veteran required aid and attendance, primarily as a result of a stroke, diabetes; and, depression. In weighing the evidence of record, the Board considered the ROs finding in the November 2009 supplemental statement of the case that the Veteran was erroneously granted a total disability rating for rheumatoid arthritis based on the residuals of his stroke. The Board however finds that the evidence is in equipoise on the issue of whether the Veteran required aid and attendance, primarily as a result of a stroke; diabetes; and, depression, or as a result of his service connected rheumatoid arthritis. Accordingly, resolving reasonable doubt in the appellant's favor, the Board finds that the appellant is entitled to special monthly compensation based on the need for regular aid and attendance for the purpose of accrued benefits. Therefore, the appellant's claim is granted. (ORDER ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. Special monthly compensation on account of being in need of the aid and attendance of another person, for purposes of accrued benefits, is granted. ____________________________________________ J. N. Moats Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs