Citation Nr: 1130146 Decision Date: 08/15/11 Archive Date: 08/23/11 DOCKET NO. 10-02 659 ) 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 38 U.S.C.A. § 1318. 3. Entitlement to a special monthly pension for a surviving spouse based on the need for regular aid and attendance. REPRESENTATION Appellant represented by: Clayte Binion, Attorney at Law ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from March 1945 to January 1947. He died in April 2008. The appellant is his widow. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of July 2008 and February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to DIC under 38 U.S.C.A. § 1318 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. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran died in April 2008. The immediate cause of death was listed as congestive heart failure. Coronary artery disease was listed as another significant condition. 2. At the time of death, the Veteran was service connected for incontinence, secondary to surgical absence of external urethral sphincter, secondary to transurethral resection of prostate, rated as 60 percent disabling effective June 10, 1988; lumbar strain, rated as 40 percent disabling effective December 19, 2005; and, malaria rated as noncompensable. He had also been awarded total disability rating for individual unemployability (TDIU) effective December 19, 2005. 3. Congestive heart failure and coronary artery disease were not manifest during service or within a year of separation from service. 4. The Veteran's cause of death was unrelated to service or a service connected disability. 5. The competent medical evidence does not show that the appellant is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; is a patient in a nursing home because of mental or physical incapacity; or has a factual need for aid and attendance demonstrated by an inability to care for most of her daily personal needs or protect herself from the hazards and dangers of her daily environment. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to death. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1116, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010). 2. The requirements for a special monthly pension for a surviving spouse based on the need for regular aid and attendance have not been met. 38 U.S.C.A. §§ 1541, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA by letters dated in May 2008 and August 2008. However, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held, inter alia, that in the context of a claim for service connection for the cause of a veteran's death for the purpose of Dependency and Indemnity Compensation (DIC) benefits, the VCAA notice must include: (1) a statement of the disabilities, 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 disability; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disability not yet service connected. Hupp, 21 Vet. App. at 352-53. Hupp compliant notice was not provided until a letter of October 2009 which postdated the rating decision. However, the Board finds the appellant was not prejudiced by the untimeliness of the notice. Indeed, the appellant was afforded the opportunity to submit additional evidence, an opportunity of which she availed herself. Her attorney submitted arguments based on Hupp in a letter of November 2009. Moreover, the claim was readjudicated in a Statement of the Case of November 2009. Therefore, the Board finds that the essential fairness of the process has been maintained and the appellant is not prejudiced by the delay in the notice. As for the duty to assist the appellant, this is discussed below separately for each claim on appeal. With respect to the cause of death claim, all known and available records relevant to the issue were obtained and are associated with the claim file. A medical opinion was obtained in 2008, which was adequate because the examiner fully reviewed the VA claim file, considered the appellant's contentions and the Veteran's medical history, and provided an opinion supported by rationale. Regarding the claim for special monthly compensation on the basis of the need for aid and attendance, the Board notes that the AOJ sent letters to the appellant in August 2008 and January 2009 requesting medical evidence to support her claim; however, the appellant did not respond to the AOJ's letter. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). By not respond to the August 2008 and January 2009 letters, the appellant has thwarted VA's attempt to assist her in developing her claim. Given the RO's efforts to date, and the appellant's refusal to cooperate, it would be unreasonable to place a burden upon VA to turn up heaven and earth in an attempt to secure further response from the claimant." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claims. Legal Criteria and Analysis A. Cause of death The veteran who had a service-connected disability that was the principal or contributory cause of his death, which occurred after December 31, 1956, may be eligible for VA death benefits. See 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the veteran's death, the evidence must establish that the service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010). The debilitating effects of a service- connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular renal disease, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disabilities were incurred while engaging in combat. The appellant has appealed the denial of service connection for the cause of death. After review of the record, the Board finds against the claim. The Veteran died in April 2008. The death certificate identified the immediate cause of death as congestive heart failure occurring three weeks prior to death and coronary artery disease (CAD) as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of the Veteran's death, service connection was in effect for incontinence, secondary to surgical absence of external urethral sphincter, secondary to transurethral resection of prostate, rated as 60 percent disabling, lumbar strain, rated as 40 percent disabling, and malaria, rated as noncompensable. He had been granted total disability for individual unemployability (TDIU) effective December 19, 2005. By way of history, the Board notes that service connection for incontinence, secondary to surgical absence of external urethral sphincter, secondary to transurethral resection of prostate, was granted in July 1989 as a result of a transurethral resection of the prostate (TURP) which the Veteran underwent in June 1988 at the VAMC in Temple, Texas. The appellant has argued that his service connected disabilities contributed to the Veteran's death. Specifically, the appellant has argued that the Veteran's need to have to push in order to urinate after the June 1988 surgery caused him stress which contributed and led to his death. As noted, the death certificate lists as the cause of death as congestive heart failure with coronary artery disease as a significant condition contributing to death. A careful review of the medical records in the claim file show that the first indication of any hypertension was a hypertensive episode noted in June 1988 at the time the Veteran was being followed-up for the TURP. Prior to the surgery, there is no documentation of any hypertension or any other form of coronary artery disease. In November 2008 a VA opinion was obtained regarding the cause of the Veteran's death. The VA examiner stated that the development of coronary artery disease or congestive heart failure would not be impacted by incontinence, lumbar strain or a history of malaria. The examiner went on to state that the Veteran had a history of hypertension and hyperlipidemia which are significant risk factors for development of coronary artery disease. The examiner stated that in rendering the pinion, the claim file had been reviewed and the appellant's argument that the Veteran was under more physical stress due to the incontinence from having to strain to void was considered. The Board finds that service connection for the cause of death is not warranted. In this regard, the Board notes that there is no showing that a service-connected disability was the principal or contributory cause of his death. Incontinence, lumbar strain and malaria were not noted to be a cause of death in the death certificate. Moreover, the VA examiner opined in November 2008 that none of the service connected disabilities contributed to the development of the coronary artery disease or congestive heart failure which caused the Veteran' death. The opinion is competent and reliable. It was rendered after a full review of the claim file and the appellant's arguments. Moreover, a reasoning was provided for the opinion. Finally, the opinion stands uncontradicted by any other medical opinion of record. In deciding a claim for service connection for the cause of the Veteran's death, the Board must also consider whether the disability that caused the Veteran's death, congestive heart failure and coronary artery disease, may be service connected. As explained below, the Board finds against this claim. In this regard, the Board notes that service treatment records are completely silent for any evidence of congestive heart failure or coronary artery disease. A separation physical of November 1946 noted the Veteran's cardiovascular system to be normal. Chest x-rays were normal. Post service treatment records show a hypertensive episode was first noted in June 1988. This was more than 41 years after separation from service. Prior to that date, there was no evidence of a coronary artery disease. According to the death certificate, the Veteran's principal cause of death was congestive heart failure which had its onset approximately 3 weeks prior to his death. The Veteran separated from service in 1947, about 61 years prior to being diagnosed. Moreover, as noted, a coronary artery disease was not noted until 1988 or 41 years after separation form service. The evidence reveals that congestive heart failure and coronary artery disease were not shown during service but decades after separation. In sum, the record is devoid of a showing that the Veteran's death was caused by service or a service connected disability. No competent evidence has been presented showing that the death causing congestive heart failure and coronary artery disease were related to service. The evidence is against the grant of service connection for the cause of death. Rather, the evidence establishes that the fatal disease processes were first manifest decades after service and that there is no relationship to service. 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, 55-56 (1990). B. Aid and Attendance The appellant has claimed entitlement to a special monthly pension (SMP) based on the need of regular aid and attendance. She has asserted that she requires assistance with her daily activities and household duties due to her physical conditions. The law provides increased pension benefits to a surviving spouse of a veteran by reason of need for aid and attendance or of being housebound. 38 U.S.C.A. § 1541(d), (e); 38 C.F.R. § 3.351(a)(5). Under 38 C.F.R. § 3.351(b), the need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria for establishing the need for aid and attendance include consideration of whether the appellant is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance. 38 C.F.R. § 3.351(c). In determining whether there is a factual need for regular aid and attendance, the following will be accorded consideration: the inability of the appellant to dress or undress herself, or to keep herself ordinarily clean and presentable; whether she requires frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in the above paragraph be found to exist before a favorable rating may be made. The particular personal function which the appellant is unable to perform should be considered in connection with her condition as a whole. It is only necessary that the evidence establish that the appellant is so helpless as to need regular aid and attendance, not that there be constant need. 38 C.F.R. § 3.352(a). The criteria for determining whether a claimant is in need of the aid and attendance of another person may be met if she is bedridden. "Bedridden" is defined as a condition that, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant 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. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352. In a letter of July 1998 from the Veteran regarding an unrelated claim he had filed while still alive, he stated the appellant suffered from a muscular condition for which she was receiving SSA disability benefits. In an August 2008 letter, the RO requested that the appellant submit medical evidence to support her claim for aid and attendance or housebound status. The record reflects that the appellant is receiving Social Security disability benefits. Moreover, a letter of January 2009 from the Social Security Administration (SSA) states the appellant was awarded SSI disability as of June 1993 for a neurological condition. The letter also stated that the SSA medical records were not available. In a January 2009 letter, the RO informed her that SSA records had been requested but could not be located. The letter further asked the appellant, once again, to provide medical evidence in support of her claim. It also advised her that a decision would be made within 10 days of the letter and if not evidence was received prior to that, the decision would be made without it. The Board notes that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). By not responding to the August 2008 and January 2009 letters, the appellant has thwarted VA's attempt to assist her in developing her claim. While the record reflects she is receiving SSA disability, this evidence is not sufficient to find she has the need for aid and attendance. Nothing in the record shows that she meets the criteria of blindness, or near blindness, in both eyes, and only needs eyeglasses to restore her vision to 20/20 bilaterally. She also does not meet the criteria to establish a factual need for aid and attendance. The record does not show an inability to keep herself ordinarily clean and presentable; need for frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect her from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). The Board finds that the weight of the evidence does not show that the appellant meets the requirements for a special monthly pension based upon the need for regular aid and attendance. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. Special monthly pension for a surviving spouse based on the need for regular aid and attendance is denied. REMAND The appellant is appealing the denial of entitlement to DIC benefits under 38 U.S.C.A. § 1318. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the appellant's claim. The appellant, through her attorney, has argued that the RO committed clear and unmistakable error (CUE) in failing to grant TDIU effective June 10, 1988, the effective date of the 60 percent disability rating for incontinence and therefore meeting the schedular criteria for TDIU. See Attorney's Memorandum of November 2009. In support of her claim, she argues that, under the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Veteran's grant of TDIU should be considered to have been in effect for ten years from the date of the Veteran's death in April 2008. See Attorney's Memorandum of January 2010. The RO has not addressed the CUE claim and applicability and effect of Rice, supra, to the present claim. On remand, the RO must specifically address whether the RO committed CUE in not granting TDIU effective June 10, 1988 and the applicability and effect of Rice, supra on the appellant's claim. Accordingly, the case is REMANDED for the following action: The RO should address whether the RO committed CUE in failing to grant TDIU effective June 10, 1988 and the applicability of the Court's holding in Rice v. Shinseki, 22 Vet. App., 447 (2009), on the appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 and. The appellant and her attorney should be provided with a Supplemental Statement of the Case addressing whether the RO committed CUE in failing to grant TDIU effective June 10, 1988 and the applicability and effect, if any, of the holding in Rice. Thereafter the appellant and her attorney must be afforded an appropriate period of time for response. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. ____________________________________________ M. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs