Citation Nr: 1124652 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-13 774A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension benefits. 3. Entitlement to special monthly compensation based on the need for aid and attendance or for being housebound for purposes of accrued benefits. 4. Entitlement to a compensable evaluation for a lumbar spine strain for purposes of accrued benefits. 5. Entitlement to an increased evaluation for episodes of musculoligamentous pain in the left hip, currently evaluated as 20 percent disabling, for purposes of accrued benefits. 6. Entitlement to an increased evaluation for left knee internal derangement, rupture of medial meniscus, currently evaluated as 30 percent disabling, for purposes of accrued benefits. 7. Entitlement to an increased evaluation for left knee arthritis, evaluated as 10 percent disabling prior to June 4, 2008, and as 40 percent disabling on and after June 4, 2008, for purposes of accrued benefits. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to December 1952. He died in October 2008, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the Pension Management Center of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to non-service connected death pension benefits and the accrued benefits claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The official death certificate shows that the Veteran died in October 2008, and that the immediate cause of death was pneumonia. 2. At the time of his death, the Veteran was service connected for left knee arthritis, rupture of medial meniscus; left knee internal derangement; musculoligamentous pain in the left hip; lumbar spine strain; internal hemorrhoids; and scar of the left knee, for a total disability rating of 70 percent. 3. The preponderance of the credible and probative evidence of record establishes that the Veteran's death was not caused or hastened by a disability incurred in or aggravated by service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2010)). The notice requirements of the VCAA require VA to notify the appellant of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the appellant is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such 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; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, specifically in the context of a § 1310 Dependency and Indemnity Compensation (DIC) claim, the United States Court of Appeals for Veterans Claims (Court) held that section 5103(a) notice must 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 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, 352-53 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes a February 2009 evidentiary development letter, which was issued prior to the March 2009 administrative decision, in which the RO advised the appellant of the evidence needed to substantiate her claim of entitlement to service connection for the cause of the Veteran's death. This notice satisfied both the second and third Hupp elements, specifically including an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, as well as an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. The appellant was also advised of her and VA's responsibilities under VCAA, to include what evidence should be provided by her and what evidence should be provided by VA. The Board acknowledges that the above letter did not comply with the first requirement set forth in Hupp, supra, in that it did not contain a statement of the conditions for which the Veteran was service connected at the time of his death. However, the Board finds that any notice errors regarding this element did not affect the essential fairness of the adjudication. The Board notes that the appellant was the Veteran's court-appointed power of attorney and handled all of his correspondence with VA. Thus, the Board concludes that the appellant was aware of all of the Veteran's service-connected disability benefits and that the appellant has not been prejudiced by any deficiency in the February 2009 notice letter. Under VCAA, VA also has a duty to assist the appellant in the development of a claim. This includes assisting the appellant in procuring service treatment records and other relevant treatment records, and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The Veteran's service treatment records, VA medical records, and available private medical records have been obtained and associated with the claims folder. The Board finds that it was not necessary to obtain a medical opinion to resolve this claim, as there is no lay or medical evidence of pneumonia in service or for several decades thereafter and no lay or medical evidence suggesting a link between any of the Veteran's service-connected disabilities and his death. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Cause of Death The claimant is the Veteran's widow who is requesting entitlement to service connection for the cause of the Veteran's death. The Veteran's Certificate of Death shows that he died in October 2008. His cause of death is listed as pneumonia. At the time of his death, the Veteran was service connected for left knee arthritis, rupture of medial meniscus; left knee internal derangement; musculoligamentous pain in the left hip; lumbar spine strain; internal hemorrhoids; and scar of the left knee, for a total disability rating of 70 percent. The appellant has not alleged a link between the Veteran's pneumonia and his military service, and she has not asserted a link between his death and any service-connected disability. Nonetheless, the Board will consider if the Veteran's death may be linked to his service. To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(2)(3). The Board will first address the question of whether there is a link between the Veteran's pneumonia and his military service. The Veteran's complete service treatment records have been reviewed, and they show no complaints of or treatment for pneumonia or associated symptoms during his military service. No clinical abnormality of the lungs and chest was noted on the December 1952 separation examination report, and the Veteran denied any symptoms suggestive of pneumonia on his December 1952 separation medical history report. Following the Veteran's separation from service, a July 1953 VA medical record diagnoses the Veteran with chronic asthmatic bronchitis. It notes that the Veteran had experienced difficulty breathing since the spring. There was no suggestion of pneumonia or of in-service symptomatology. There is no suggestion of pneumonia in the post-service medical evidence of record. The Board notes, in particular, that pneumonia is not listed as one of the Veteran's active problems in a February 2008 VA medical record. There is no indication that the Veteran's pneumonia was continuously present since his separation from service or that he had pneumonia at any time during the more than five decades following his separation. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the case at hand, there is an approximately 55-year gap between the Veteran's separation from service and his pneumonia. Nor does the record contain medical evidence, such as a competent medical opinion, that otherwise links the Veteran's pneumonia to his military service or to one of his service-connected disabilities, and the appellant herself has not made any such assertion. Thus, in the absence of competent medical or lay evidence linking the Veteran's pneumonia to his military service, the Board must find that entitlement to service connection for pneumonia as the cause of the Veteran's death is not warranted. Second, the Board has considered whether there is a link between any of the Veteran's service-connected disabilities and his death. As noted above, the Veteran was service connected for left knee arthritis, rupture of medial meniscus; left knee internal derangement; musculoligamentous pain in the left hip; lumbar spine strain; internal hemorrhoids; and scar of the left knee, for a total disability rating of 70 percent, at the time of his death. No medical expert has suggested a link between any of these conditions and the Veteran's death. Nor does the medical evidence of record suggest that any such relationship might be found. Nor has the appellant herself asserted any such relationship. Therefore, in the absence of evidence of a link between the Veteran's death and any service-connected disability, the claim of entitlement to service connection for the cause of the Veteran's death must be denied. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for the cause of the Veteran's death must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. REMAND The appellant has also claimed entitlement to nonservice-connected death pension benefits and accrued benefits. Unfortunately, neither claim is adequately addressed in the February 2010 statement of the case. Thus, a remand is required. Basic entitlement to VA nonservice-connected improved death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime); or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1541 (West 2002); 38 C.F.R. § 3.3(b)(4) (2010). The Board notes that the March 2009 decision denied nonservice-connected death pension benefits because the appellant's net worth was determined to be sufficient to meet her living expenses at that time. It noted that VA did not consider the appellant's home, including a reasonable lot area and personal effects, in determining the appellant's net worth. It also noted factors that VA considers when calculating net worth, including whether property can be readily converted into cash at no substantial sacrifice. In her October 2009 notice of disagreement, the appellant expressly noted that "As to the property I have, it can be converted to cash at a great loss to me and my family. Our home has been in the family since 1926." The Board finds that this statement constitutes a notice of disagreement with the denial of nonservice-connected death pension benefits. The Board finds this sympathetic reading of the appellant's statement to be especially appropriate in the case at hand, as the appellant in this case is unrepresented. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (finding that VA is obligated to sympathetically read the filings of a pro se Veteran). The Board notes that the issue of entitlement to nonservice-connected death pension benefits is not addressed in the February 2010 statement of the case. The Court has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the RO to issue a statement of the case is a procedural defect requiring a remand. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, a statement of the case must be issued with respect to the claim of entitlement to nonservice-connected death pension benefits. This statement should include the relevant law and should provide a detailed discussion of the net worth determination. A discussion of the farmhouse that is referenced in the November 2008 claim and, presumably, in the October 2009 notice of disagreement, would be helpful in the event that an appeal of this issue were to be perfected. Because the appellant in the case at hand is unrepresented, the statement of the case should include express notice that the nonservice-connected death pension benefits claim has not been perfected for appeal. The appellant should be expressly notified that she needs to file a VA Form 9 in order to perfect an appeal of this issue. Finally, the Board has determined that the claims of entitlement to accrued benefits were not properly adjudicated in the first instance and that additional development is required before these claims may be properly adjudicated by the Board. Applicable law and regulations provide that, upon the death of a veteran or beneficiary, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his/her death (accrued benefits) and due and unpaid shall, upon the death of such individual, be paid to the specified beneficiaries, the first of which is the veteran's spouse. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a). A claim for such benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(a), (c) (2010). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the 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.' See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a veteran's accrued benefits claim is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term 'pending claim' means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2010). The term 'finally adjudicated claim' means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2010); see also 38 C.F.R. §§ 20.1103, 20.1104 (2010). 'Evidence in the file at date of death' means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). In the case at hand, the RO appears to have summarily rejected the appellant's accrued benefits claims because, as stated in the February 2010 statement of the case, the Veteran "did not have a pending claim at the time of his death." This statement, however, is incorrect. There is no indication of a filed claim that had not been adjudicated at the time of the Veteran's death. However, the Veteran had had several claims denied within the year prior to his death, and these claims had not become final by the expiration of the one-year appeals period. One such claim was the denial of entitlement to special monthly compensation based on the need for aid and attendance or for being housebound in December 2007 and February 2008 rating decisions. Also of record, but not final, were the adjudications of increased ratings claims in the September 2008 rating decision. This decision increased the disability rating for the Veteran's left knee arthritis from 10 percent to 40 percent, effective June 4, 2008. It also denied a compensable rating for lumbar spine strain; a rating in excess of 20 percent for episodes of musculoligamentous pain in the left hip; and a rating in excess of 30 percent for left knee internal derangement, rupture of medial meniscus. Because these denials were not final at the time of the Veteran's death, they are subject to accrued benefits analysis. Unfortunately, this analysis was not conducted in the March 2009 decision or in the February 2010 statement of the case. The Board thus finds it necessary to remand these claims for proper adjudication. (The Board notes that, unlike the nonservice-connected death pension benefits claim, the accrued benefits claims have been perfected for appeal. Thus, it is not necessary for the appellant to file an additional VA Form 9 for the accrued benefits claims.) On remand, the accrued benefits claims need to be properly adjudicated on their merits. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Issue a statement of the case addressing the issue of entitlement to nonservice-connected death pension benefits. This statement should include the relevant law and should provide a detailed discussion of the net worth determination. A determination with regard to the appellant's farmhouse would be particularly helpful in the event that an appeal of this issue is perfected. The statement of the case should include express notice that the nonservice-connected death pension benefits claim has not been perfected for appeal. The appellant should be expressly notified that she needs to file a timely VA Form 9 in order to perfect an appeal of this issue. The RO/AMC is free to undertake any additional development deemed necessary with respect to that issue. 2. Readjudicate the appellant's accrued benefits claims. These consist of: (1) Entitlement to special monthly compensation based on the need for aid and attendance or for being housebound for purposes of accrued benefits; (2) Entitlement to a compensable evaluation for a lumbar spine strain for purposes of accrued benefits; (3) Entitlement to an increased evaluation for episodes of musculoligamentous pain in the left hip, currently evaluated as 20 percent disabling, for purposes of accrued benefits; (4) Entitlement to an increased evaluation for left knee internal derangement, rupture of medial meniscus, currently evaluated as 30 percent disabling, for purposes of accrued benefits; and (5) Entitlement to an increased evaluation for left knee arthritis, evaluated as 10 percent disabling prior to June 4, 2008, and as 40 percent disabling on and after June 4, 2008, for purposes of accrued benefits. Any additional development that is deemed appropriate should be conducted. If any benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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. 2010). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs