Citation Nr: 1015259 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 07-08 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who served on active duty from January 1944 to April 1948 and from September 1961 to December 1981. The Veteran died in March 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The matter of entitlement to service connection for the cause of the Veteran's death is being remanded to the RO via the Appeals Management Center (AMC) in Washington D.C. VA will notify the appellant if any action on her part is required. FINDING OF FACT At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or since discharge from service; he was not a former prisoner of war (POW). CONCLUSION OF LAW The legal requirements for establishing entitlement to DIC under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2008); 38 C.F.R. § 3.22 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 Board has considered whether the provisions of the VCAA apply in this matter. The Board finds that because the determination in this matter is strictly limited to statutory interpretation, the provisions of the VCAA do not apply. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim 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). Moreover, the Court has held that a failure to comply with the notice requirement of the VCAA is not prejudicial to the claimant if, based on the facts alleged, no entitlement exists. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). The August 2006 decision letter included a copy of the July 2006 rating decision that advised the appellant that she lacked a legal requirement for DIC under 38 U.S.C.A. § 1318. As no reasonable possibility exists that further notice or assistance would aid in substantiating the appellant's claim for DIC under 38 U.S.C.A. § 1318, any deficiencies of VCAA notice or assistance in that matter are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). B. Legal Criteria, Factual Background, and Analysis Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service- connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war and died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The facts of this case are not in dispute. The Veteran was not an Ex-POW. His service-connected disabilities were rated totally disabling effective from January 27, 2003. Since he died in March 2006, he had received a total rating for less than 10 years prior to his death, and had not been continuously rated totally disabled since his discharge from service (as that was in December 1981). Thus, the legal criteria for DIC benefits under 38 U.S.C.A. § 1318 are not met, and the appellant's claim for this benefit must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. REMAND The Veteran died on March [redacted], 2006. His death certificate shows that the immediate cause of death was end stage Alzheimer dementia. Other significant conditions contributing to death, but not resulting in the underlying cause of death were listed as pneumonia, sepsis, atherosclerotic coronary artery disease, osteoarthritis, peptic ulcer disease, atrial flutter, and asthma. The Veteran had established service connection for claudication of both lower extremities (rated 60 percent each), residuals of a lumbosacral spine injury (rated 40 percent), residuals of a left knee injury, cervical spine arthritis (rated 30 percent), and deformity of the duodenal bulb and hiatal hernia (rated 20 percent). The appellant's theory of entitlement to service connection for the cause of the Veteran's death is essentially that service connected disabilities contributed to cause his death (as evidenced by a couple being listed on the death certificate as contributing to cause death). The RO sought a medical opinion regarding a nexus between the Veteran's service connected disabilities and his death. In the February 2007 opinion a VA staff physician stated that the Veteran's claims file was reviewed extensively (but cited only VA medical records and records from William Beaumont Army Medical Center). There was no reference to the Veteran's service treatment records (STRs) including the report of the November 1981 examination for retirement from service (that referred to an EKG study suggestive of possible right ventricular hypertrophy). The opinion by the VA staff physician was essentially to the effect that the cause of the Veteran's death was pneumonia with secondary septic shock and resultant circulatory collapse, which was unrelated to the Veteran's service-connected disabilities, to include his peripheral arterial disease. The opinion focused on a finding that there was no evidence that the Veteran had had a heart attack or symptoms of angina prior to his death and that there was no evidence that he had coronary artery disease. The examiner did not opine whether the Veteran's service connected ulcer disease or arthritis were a factor in causing/contributing to cause his death, not did he opine whether the service-connected disabilities aided or lent assistance to the production of death. Specifically, there was no comment as to whether service-connected disabilities produced debilitating effects and/or general impairment of health so as to render the Veteran materially less capable of resisting the effects of the disease that primarily caused death. Notably, the record raises a question as to whether the bilateral lower extremity claudication (which based on the 60 percent rating assigned for each extremity was quite severe) or the orthopedic disability (which by the 40 and 30 percent ratings assigned for lumbar and cervical spine disabilities, respectively, was also quite severe) contributed to the development of pneumonia/sepsis, by greatly restricting his mobility, and thus aided in the production of death? Accordingly, further development of the medical evidence in this matter is necessary. Finally, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service- connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant has not received notice that meets these criteria. As the matter is being remanded anyway, the RO will have an opportunity to provide such notice on remand. Accordingly, the case is REMANDED for the following action: 1. The RO must send the appellant a letter providing her the notice required in a claim for DIC under Hupp v. Nicholson, 21 Vet. App. 342 (2007)(outlined above). She should have opportunity to respond. 2. The RO should then forward the Veteran's claims file (to include this remand), and a copy of 38 C.F.R. § 3.312 to an appropriate physician for review and a medical advisory opinion regarding a nexus between the Veteran's death and his service/service connected disabilities. Following review of the claims file (to include this remand), the consulting physician should provide an opinion responding to the following: (a) Is it at least as likely as not (a 50 percent or better probability) that disability that caused the Veteran's death or contributed to cause his death was manifested in service? In this regard, the consulting physician is asked to specifically comment on the significance of the possible right ventricular hypertrophy that was noted at separation. (b) Is it at least as likely as not (a 50 percent or better probability) that any of the Veteran's service connected disabilities caused or contributed to cause (i.e., rendered him less capable of resisting the cause(s) of death or hastened death) his death? The consulting physician must explain the rationale for all opinions. In explaining the rationale, the consulting physician should comment specifically, with respect to each of the Veteran's service connected disabilities (and their cumulative effect), whether such contributed to cause the Veteran's death. The consulting physician should specifically comment on the proposed theory that immobility due to the Veteran's various service connected disabilities had debilitating effects that rendered him less capable of resisting the causes/contributory causes of his death. 3. The RO should review the record, ensure that all development sought is completed, and then readjudicate the claim of service connection for the cause of the Veteran's death. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs