Citation Nr: 1125670 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 06-10 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for heart disease as the result of exposure to herbicides for purposes of accrued benefits. 3. Entitlement to service connection for hypertension as the result of exposure to herbicides for purposes of accrued benefits. 4. Entitlement to service connection for bilateral hearing loss for purposes of accrued benefits. 5. Entitlement to service connection for tinnitus for purposes of accrued benefits. 6. Entitlement to service connection for Raynaud's syndrome for purposes of accrued benefits. 7. Entitlement to service connection for degenerative joint disease for purposes of accrued benefits. 8. Entitlement to service connection for a back condition for purposes of accrued benefits. 9. Entitlement to service connection for a hiatal hernia for purposes of accrued benefits. 10. Entitlement to non-service connected pension benefits for purposes of accrued benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to November 1968. He died in February 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2007, the appellant presented testimony at a personal hearing conducted in Washington, D.C. before the undersigned who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of this personal hearing is in the Veteran's claims folder. The appeal was previously remanded in January 2008 and January 2009. As will be discussed below, the issue of entitlement to service connection for heart disease for purposes of accrued benefits is being granted. The remaining issues 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. A claim for service connection for heart disease was pending at the time of the Veteran's death in February 2005. 2. The appellant filed a claim for accrued benefits in March 2005. CONCLUSION OF LAW The requirements for entitlement to service connection for ischemic heart disease, specifically coronary artery disease, status post myocardial infarction, as the result of exposure to herbicides for purposes of accrued benefits have been met. 38 U.S.C.A. § 5121; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION Because the claim for entitlement to service connection for ischemic heart disease, specifically coronary artery disease, status post myocardial infarction, as the result of exposure to herbicides for purposes of accrued benefits is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). LAW AND ANALYSIS Heart Disease The law governing claims for accrued benefits provides that, upon the death of a veteran, periodic monetary benefits authorized under laws administered by VA to which a payee was entitled at his death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid to his spouse. 38 C.F.R. § 3.1000(a)(1)(i). The person that bore the expense of the Veteran's last sickness and/or burial may be paid periodic monetary benefits to which he was entitled at the time of his death based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a)(5). At the time of the Veteran's death, he was not service-connected for any disability. In an October 2004 rating decision, the Veteran was denied entitlement to service connection for hearing loss with tinnitus, hypertension and heart disease associated with exposure to herbicides, Raynaud's syndrome status post small digital sympathectomies of the left long finger and left small finger, degenerative joint disease, back condition, and hiatal hernia. He was also denied non-service connected pension benefits. He was notified of that denial that same month. In February 2005, the Veteran died. The appellant filed a claim for accrued benefits in March 2005, which was within the one year time period following the Veteran's death. 38 C.F.R. § 3.1000(c). The appellant indicated that she wished to continue with the service connection claim. In a March 2005 statement, the appellant clarified that "I request the right to complete the claims started prior to death." In January 2008 and January 2009, the Board found that the Veteran had pending claims at the time of his death and ordered the RO/AMC to adjudicate the claims for the purpose of accrued benefits. However, in response to both these remand orders, the RO/AMC denied accrued benefits because the Veteran had no claims pending at the time of his death. Therefore, in the remand below, the Board will now explain more clearly why, under the law, the Veteran did have claims pending at the time of his death and will again order the RO/AMC to adjudicate the claims for the purpose of accrued benefits. With regard to the claims that must be adjudicated for accrued purposes, the Board has previously determined that those claims included claims for service connection for hearing loss, tinnitus, Raynaud's syndrome, degenerative joint disease, a back disability, and a hiatal hernia. However, the Board omitted three other claims that were denied in the October 2004 rating decision--service connection for hypertension and heart disease as well as the denial of entitlement to non-service-connected pension. Thus, these issues have been added above. The Board finds that entitlement to service connection for heart disease, specifically coronary artery disease, status post myocardial infarction, can be granted for purposes of accrued benefits. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Section 3.307(a)(6)(iii) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne and porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board observes that effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia, chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. The term "ischemic heart disease" is noted to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. New Note 3 at the end of § 3.309 reads as follows: "For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease." This amendment is applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. Accordingly, the amendment applies to the appellant's claim for heart disease. The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence of record reflects that the Veteran served in Vietnam from November 1966 to November 1967. Thus, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). As reflected above, effective August 31, 2010, ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents. The term "ischemic heart disease" is noted to include old myocardial infarction and coronary artery disease. The Board must now determine whether there was any evidence of ischemic heart disease in the file at the date of the Veteran's death. 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 claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). A September 2004 VA record in the claims file at the time of the Veteran's death indicated that the Veteran was diagnosed with acute myocardial infarction, unspecified site. Further, although it was not physically in the claims file at the time of the Veteran's death, a February 2005 VA record reflected that he had discharge diagnoses of coronary artery disease, status post myocardial infarction. Thus, because the February 2005 VA record was in VA's constructive possession before the Veteran's death, it may be considered. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.) Accordingly, at the time of his death the Veteran had diagnoses of coronary artery disease, status post myocardial infarction, which have been determined to be ischemic heart disease. As the Veteran had been diagnosed with an ischemic heart disease and served in Vietnam, he was entitled to service connection. 38 C.F.R. § 3.309(e). Therefore, entitlement to service connection for ischemic heart disease, specifically coronary artery disease, status post myocardial infarction, as the result of exposure to herbicides for purposes of accrued benefits is granted. 38 C.F.R. § 3.1000. ORDER Entitlement to service connection for ischemic heart disease, specifically coronary artery disease, status post myocardial infarction, as the result of exposure to herbicides for purposes of accrued benefits is granted. REMAND With regard to the remaining claims for accrued benefits and service connection for the cause of the Veteran's death, the Board concludes that additional development must be undertaken before a decision can be reached. Accrued The Board observes that despite the Board's express finding that the above claims for accrued benefits must be considered by the RO in the first instance in both the January 2008 and January 2009 remands, the RO continued to state in the most recent March 2011 supplemental statement of the case (SSOC) that the evidence failed to show a claim pending or on appeal at the time of the Veteran's death. The Veteran had a year after the October 2004 rating decision to file a notice of disagreement (NOD) with that decision. Although he did not file an NOD before his death, thereby initiating an appeal of the October 2004 rating decision, his claims could not be considered "finally adjudicated" under section 3.160(d) of VA regulations because that regulation defines "pending claim" and "finally adjudicated claim" as follows: The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). 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). In Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007), a case involving circumstances similar to the circumstances in this case, the United States Court of Appeals for Veterans Claims (Court) held that because the one-year period for filing a Notice of Disagreement had not expired at the time of the veteran's death, his claims remained pending. Taylor, 21 Vet. App. at 129. The Court stated, "Because a surviving spouse takes a deceased spouse's claim 'as it stands on the date of death,' Zelvalkink, 102 F.3d at 1242, Mrs. Taylor filed her accrued-benefits claim while her husband's claim was still pending, i.e., it was not yet a 'finally adjudicated claim.'" Therefore, the Court ruled that the Board should not have denied the widow's accrued-benefits claim because the Veteran did not have a claim pending at the time of his death but rather the Board should have adjudicated the Veteran's pending claim for accrued purposes. Similarly, in this case, although the Veteran died in February 2005, he had until October 2005 to file an NOD with the October 2004 rating decision. Because the appellant in this case filed her accrued-benefits claim within that one-year appeal period while the Veteran's claims were pending, the Taylor decision controls in this case, and VA must adjudicate the Veteran's pending claims for accrued purposes. Before the Board can review such an adjudication on appeal, the RO/AMC must adjudicate the claims in the first instance and not continue to deny the appellant's accrued-benefits claim for the reason that the Veteran had no pending claims at the time of his death. That reason is contrary to the Court's holding in Taylor. Concernng this, the Board notes that the RO/AMC did not cite to section 3.160 in the statement of the case (SOC) or supplemental statements of the case (SSOC) but did cite to section 3.104(a) in one SSOC. Section 3.104(a) provides, A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of [VA] as to conclusions based on the evidence in the file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part. 38 C.F.R. § 3.104(a). The RO/AMC's reason for continuing to find that the Veteran had no claims pending at the time of his death is certainly not clear from anything the RO/AMC stated in the SOC or SSOCs, but perhaps the RO/AMC believed that section 3.104(a) means that the October 2004 rating decision was "final" at the time written notification of it was issued and that therefore the Veteran had no "pending" claims because his claims were the subject of a "final" rating decision. However, as VA's General Counsel has noted, "The term 'final' or 'final decision' often has different meanings in different contexts, even within a single statutory or regulatory scheme." VAOPGCPREC 18-95 at para. 8 (June 22, 1995). In regard to section 3.104(a) in particular, the General Counsel has stated that section 3.104(a) "establishes a finality standard for purposes of determining when a VA field office decision will become 'final and binding' upon all other field offices, such that the decision will not be subject to revision on the same factual basis." Id. The General Counsel thus indicated that this provision only applies a finality standard to "other field offices", i.e., that a rating decision issued by one RO, for example, is final and binding upon all other ROs once notification of it is issued, the result being that another RO cannot review that rating decision and overturn it on the same factual basis. Instead, another "field office" would only be permitted to consider or reconsider that rating decision if new and material evidence were submitted to reopen the claim or claims, thereby creating a "new" factual basis. 38 C.F.R. § 3.156; see also 38 C.F.R. § 3.400(q)(1). Thus, although section 3.104(a) has everything to do with a rating decision being final when notice of it is issued so that it will not be subject to review by other field offices, it has nothing to do with when that rating decision will become "final" so that it will not be subject to review by the Board. As the General Counsel explained, "Under 38 U.S.C. § 7105(c) and 38 C.F.R. §§ 20.302 and 20.1103, a VA field office decision will become 'final,' in the sense that it is not subject to review by the BVA, if an appeal is not initiated within one year after the date notice of the decision is mailed to the claimant." VAOPGCPREC 18-95 at para. 8 (June 22, 1995). Thus, although the Court did not discuss section 3.104(a) in Taylor but limited it's discussion to section 3.160's definitions of "pending claim" and "finally adjudicated claim", the Court's holding in Taylor is consistent with the VA General Counsel's own interpretation of VA regulations governing finality. The Board hopes that this explanation clears up any confusion that the RO/AMC may have had regarding the Board's order to adjudicate the claims decided in the October 2004 rating decision for accrued purposes. Moreover, the Board emphasizes that the RO/AMC must stop denying the accrued-benefits claim for the reason that the Veteran had no claims pending at the time of his death. The Board reiterates that that reason for denial is contrary to the Court's holding in Taylor. In this case, because the appellant filed her accrued-benefits claim within the one-year period following the October 2004 rating decision, the Taylor decision controls. The Board errs as a matter of law when it fails to ensure compliance with its remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board observes that the RO must consider the underlying merits of the remaining accrued-benefits claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the claimant has been prejudiced thereby). Accordingly, the claims for entitlement to service connection for hypertension as the result of exposure to herbicides, bilateral hearing loss, tinnitus, Raynaud's syndrome, degenerative joint disease, a back condition, a hiatal hernia and entitlement to non-service connected pension benefits for purposes of accrued benefits are once again remanded. Cause of death The Veteran's death certificate showed that his immediate cause of death was respiratory failure due to or as a consequence of aspiration pneumonia, deconditioning, and scleroderma. The appellant has contended that the Veteran's scleroderma was caused by exposure to herbicides. She has also indicated that his scleroderma led to his heart disease. As reflected above, the Board granted entitlement to service connection for coronary artery disease, status post myocardial infarction for purposes of accrued benefits. In the context of a claim for Dependency and Indemnity Compensation (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, 352-53 (2007). At the time of her application in March 2005, the Veteran was not service connected for any disability. Now that the Board has determined that he was entitled to service connection for coronary artery disease status post myocardial infarction, the appellant should be sent another letter informing her of how to substantiate a claim as the result of the service-connected disability. Moreover, as the appellant has indicated that the Veteran's cause of death was related to his heart disease, which has now been service-connected, the Board will afford the appellant another opportunity to submit argument or evidence with regard to this contention. Further, as there are still pending accrued benefits claims that have not been addressed by the RO in the first instance which may potentially impact the claim for the cause of the Veteran's death, the claims are considered inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. The RO should inform the appellant that the Board has found that the Veteran was entitled to service connection for coronary artery disease status post myocardial infarction at the time of his death. She should be provided with an explanation of the evidence and information required to substantiate a DIC claim based on coronary artery disease status post myocardial infarction, to include as on a secondary basis. She should also be told 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). 2. The RO must address the claims for entitlement to service connection for hypertension as the result of exposure to herbicides, bilateral hearing loss, tinnitus, Raynaud's syndrome, degenerative joint disease, a back condition, a hiatal hernia and entitlement to non-service connected pension benefits for purposes of accrued benefits on the merits. For the explanation given in the body of this remand, the Board emphasizes that the RO/AMC must not deny the accrued-benefits claim for the reason that the Veteran had no claims pending at the time of his death. The Board reiterates that that reason for denial is contrary to the Court's holding in Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007). The individual pending claims for service connection must be adjudicated for the purpose of accrued benefits. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should ensure that the merits of the claims for entitlement to service connection for hypertension as the result of exposure to herbicides, bilateral hearing loss, tinnitus, Raynaud's syndrome, degenerative joint disease, a back condition, a hiatal hernia and entitlement to non-service connected pension benefits for purposes of accrued benefits have been addressed. The Board observes that this has been requested twice before but has not been accomplished. The Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). 4. If the benefits sought are not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs