Citation Nr: 1125872 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 08-13 133 ) 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 under 38 U.S.C.A. § 1318. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from May 1943 to December 1945. The Veteran died in February 2006. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 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). FINDINGS OF FACT 1. The Veteran died in February 2006. The death certificate lists the cause of death as myocardial infarction. 2. At the time of the Veteran's death, service connection was in effect for status post left hip intertrochanteric fracture with post operative open reduction internal fixation (ORIF), assigned a 60 percent rating. A total disability rating based on individual unemployability (TDIU) was in effect from December 2002. 3. A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 4. 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. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2010). 2. The criteria for DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the context of a claim for DIC benefits, 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 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). In a June 2006 letter, the RO provided the appellant with notice of the evidence required to substantiate her claims. The letter informed the appellant what information and evidence VA was responsible for obtaining and what evidence VA would assist the appellant in obtaining. The letter explained how disability ratings and effective dates are determined. This letter satisfied the timing requirements set forth in Pelegrini, as it was provided prior to the rating decision on appeal. A May 2010 letter provided notice as required by Hupp. Regarding the duty to assist, the RO made reasonable efforts to obtain the pertinent records. Unfortunately, the Veteran's service treatment record are not available for review and are presumed destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri, in 1973. Accordingly, VA has a heightened duty to assist the appellant in developing this claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board has obtained a medical opinion. The Board finds that all necessary development and notification has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis of Claims A. Service Connection for the Cause of Death The cause of the veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such a disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2010). For a service-connected disability to be considered the principal or primary cause of death, it must be singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2010). In determining whether a service-connected disability contributed to death, it must be shown that it 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 it casually shared in producing death, but rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2010). Applicable law provides that service connection will be granted for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). That an injury occurred in service alone is not enough; there must be a chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic diseases (including ischemic heart disease) may be presumptively service connected if manifested to a compensable degree in the first postservice year. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, the service treatment records were destroyed and are therefore not available for review. The Board notes, however, that there is no evidence that ischemic heart disease manifested to a compensable degree within one year of separation from service. Accordingly, service connection for this condition may not be presumed. In a September 1999 rating decision, the RO granted compensation under 38 U.S.C.A. § 1151 for status post left hip intertrochanteric fracture with post operative status post open reduction internal fixation (ORIF). VA records dated in February 2006 reflect that the Veteran presented to the emergency room with a two-week history of left leg acute arterial ischemia. The Veteran underwent an arteriogram. Records indicate that, based upon the arteriogram findings, the Veteran was not a candidate to undergo either surgical intervention, thrombectomy or thombolytic therapy. The Veteran's family agreed to an above the knee amputation procedure, which was performed on February 27, 2006. The Veteran developed cardiac arrest on the evening of February 27, 2006 and did not respond to resuscitation. A death certificate on file lists the immediate cause of death as myocardial infarction. At the time of the Veteran's death, service connection was in effect for status post intertrochanteric fracture, left hip, with open reduction and internal fixation. In written statements, the appellant noted that the Veteran developed poor circulation and neuropathy and had continuous pain and gangrene of the left leg after the fracture. She noted that a below the knee amputation was recommended. The appellant noted that the appellant died immediately after the amputation surgery. In March 2011, a vascular surgeon reviewed the claims file and provided a medical opinion. The examiner noted that the Veteran presented to the VA Medical Center in July 1998 for treatment of a rectal abscess. He had multiple co-morbidities consistent of a history of prostate cancer, atrial fibrillation, hypertension, diabetes mellitus, COPD (chronic obstructive pulmonary disease), glaucoma and alcohol abuse. He underwent incision and drainage of his rectal abscess and did well; however, while in the hospital he fell out of bed and sustained left introchanteric hip fracture. This necessitated an open reduction with internal fixation on July 8, 1998. The Veteran was discharged to a rehabilitation center and was noted to have an ulcer on his left heel, which was treated conservatively with debridement and antibiotics and ultimately required debridement of the bone of his left calcaneous. The opinion noted that, approximately eight months later, the patient presented with history of peripheral arterial insufficiency and required a right femoral tibial bypass graft on February 26, 1999, followed soon after with a left femoral popliteal bypass graft. It was noted that the record also indicates that the patient was hospitalized on April 12, 1999 for infection of the right thigh wound following his bypass surgery and required the incision and drainage of the abscess of the right thigh wound on April 13, 1999. The examiner noted that vascular lab tests in the record documented the presence of severe peripheral arterial insufficiency with an ankle brachial index of .17 in the right leg and .44 in the left leg, which indicates that the degree of arterial insufficiency is very significant and correlates well with his known history of coronary artery disease, hypertension and diabetes. The examiner noted that there was an admission to the hospital in 2001 when the Veteran sustained a myocardial infarction. The examiner noted that the Veteran's last admission was on February 22, 2006, where, at the age of 85 years, he presented with a 14-day history of left lower extremity ischemia and was noted to have no motor or sensory functions in the left leg. He was urgently taken to the operating room, where an arteriogram was performed and that showed complete occlusion of his superficial femoral and popliteal arteries without any visible vessels below the knee. Therefore, an above the knee amputation was recommended based on the fact that his leg was considered non-salvageable based on the neurologic and vascular exam. The examiner noted that the Veteran underwent a left above the knee amputation on February 27, 2006, with the removal of his femoral rod to facilitate the surgery. The same night, after the surgery, the Veteran sustained a cardiac arrest due to myocardial infarction. All resuscitative measures failed, and the Veteran was pronounced dead at that time. The examiner first addressed whether the myocardial infarction was the result of the Veteran's service-connected status post left hip fracture with post-operative open reduction internal fixation. The examiner stated that the myocardial infarction was not the result of the left hip fracture or the subsequent surgery of open reduction and internal fixation, based on the fact that the patient had underlying predisposing factors for coronary artery disease, including his known history of diabetes, hypertension, and peripheral arterial insufficiency. The examiner noted that this was well documented in his record and evident by the fact that he had two prior arterial bypasses on both legs in 1999 and a history of myocardial infarction in 2001. The examiner stated that it is also well known that a significant number of patients with peripheral artery insufficiency have underlying coronary artery disease that could be asymptomatic, but the combination of his risk factors significantly predisposed him to having myocardial infarction. The examiner addressed whether the Veteran's service-connected status post hip fracture with post-operative open reduction internal fixation caused or contributed to the Veteran's death. The examiner stated that the left hip fracture and subsequent surgery of reduction and internal fixation did not cause of contribute to the Veteran's death. The examiner opined that he does not believe the two incidents are connected. With respect to the left heel ulcer the Veteran sustained following his hip fracture in July 1998, the examiner stated that this presents a pressure ulcer from lying in bed for a prolonged period of time in addition to his history of peripheral arterial insufficiency. The examiner stated that it is not uncommon for diabetics, especially with peripheral neuropathy, to have this known complication, which tends to prolong hospitalization or rehabilitation. The Board concludes that there is a preponderance of the evidence against the appellant's claim for service connection for the cause of the Veteran's death. A competent medical opinion concluded that the Veteran's service-connected status post left hip intertrochanteric fracture did not cause or contribute to his death. While we sympathize with the appellant's loss of her husband, the Board finds that the Veteran's death was not related to service or a service-connected disability. As the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the appellant's favor. B. DIC Where a Veteran's death is not determined to be service-connected, a surviving spouse may still be entitled to benefits. Benefits are payable to the surviving spouse of a "deceased Veteran" in the same manner as if the death were service-connected. 38 U.S.C.A. § 1318(a) (West 2009). A deceased Veteran for purposes of this provision 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 or continuously rated totally disabling for at least five years from the date of the Veteran's separation from service; or the veteran was 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 preceding the death. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22 (2010). Where a Veteran's death is not determined to be service- connected, a surviving spouse may still be entitled to benefits. Benefits are payable to the surviving spouse of a "deceased Veteran" in the same manner as if the death were service-connected. 38 U.S.C.A. § 1318(a) (West 2009). A deceased Veteran for purposes of this provision 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 or continuously rated totally disabling for at least five years from the date of the Veteran's separation from service. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22 (2010). In this case, the Veteran was in receipt of compensation pursuant to 38 U.S.C.A. § 1151 for status post left hip intertrochanteric fracture with post operative open reduction internal fixation (ORIF). An evaluation of 100 percent was assigned from July 8, 1998, pursuant to 38 C.F.R. § 4.29 because of hospitalization over 21 days. A 60 percent evaluation was assigned from December 22, 1998. The Veteran did not have a service-connected disability that was continuously rated totally disabling for 10 or more years immediately preceding death. Nor did he have any disability that was continuously rated totally disabling for at least five years from the date of his separation from service. Accordingly, 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. Therefore, the appellant's claim under 38 U.S.C.A. § 1318 must be denied for lack of legal merit or entitlement under the law. 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) ORDER Service connection for the cause of the Veteran's death is denied. DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs