Citation Nr: 1302296 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-09 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 2. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. (The issue of entitlement to death pension benefits is the subject of a separate decision.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active duty from June 1945 to December 1946. He died in August 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision in which the Pension Maintenance Center (PMC) in St. Paul, Minnesota, in relevant part, denied entitlement to DIC, as well as death pension benefits after one month. Because the issue of entitlement to death pension is limited to whether the appellant's income is excessive, pursuant to Board policy, the death pension issue is the subject of a separate decision, issued simultaneously with this decision. [In addition, due to the location of the Veteran's residence, jurisdiction of his appeal remains with the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.] In October 2012, the veteran appeared at a hearing held at the RO before the undersigned Veterans Law Judge. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant claims entitlement to DIC based on service connection for the cause of the veteran's death, or, in the alternative, entitlement to receive a total disability rating for service-connected disability for 10 years prior to his death pursuant to 38 U.S.C.A. § 1318. The Veteran in this case died in August 2008. According to the death certificate, he was 81 years of age, and the cause of his death was adenocarcinoma of the colon, which had been present for "years." He died at home. At the time of his death, service connection was in effect for PTSD, rated 100 percent disabling effective from April 24, 2003. The Veteran's claims file was lost sometime between September 2003 and January 2004. Where service medical records are unavailable, the Board has a heightened duty to assist and obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule in cases such as this. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet.App. 365 (1991). The Board finds that this standard should apply where the claims file has been lost as well. In this regard, the service treatment records of record at the time of a September 2003 rating decision were lost along with the claims file. Although the legal standard for proving a claim for service connection is not lowered, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant increases. Russo v. Brown, 9 Vet. App. 46 (1996). The following development is requested with the heightened duty to assist in mind. The appellant contends that the Veteran's service-connected PTSD hastened or contributed to his death, due to symptoms of paranoia or distrust which prevented him from seeking medical care in a timely manner. The appellant testified at her October 2012 hearing that the Veteran had essentially become a complete recluse, and did not want to have anything to do with doctors. The appellant explained that the Veteran suffered from rectal bleeding but that, when he received a notice to report for colon procedure, he threw it away. He also did not tell his family how bad it was, and, when it got so bad that he could not hide it and they finally got him to a doctor, the cancer had advanced so far that they gave him two weeks to live. Although the Board specifically finds that the testimony is credible, medical evidence is needed to determine whether his failure to seek medical treatment contributed to cause his death. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 U.S.C.A. § 5103A(a) does not always require the Secretary of VA to assist a claimant in obtaining a medical opinion or examination for a cause-of-death claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate such a claim. The Federal Circuit added that there is no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) because that provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a veteran, and therefore does not pertain to a death claim. Id. Nevertheless, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) the Federal Circuit held that, in the context of a cause-of-death claim, VA must also consider that 38 U.S.C.A. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim. Particularly here where the claims file was lost, a medical opinion is indicated. To assist in such an opinion, additional medical records must be obtained as well. In this regard, VA medical records dated from September 1999 to February 2004 are of record but do not show treatment or evaluation for colon cancer, and the appellant states that colon cancer was diagnosed only a short time before the Veteran's death. To ascertain whether there was a delay in treatment which was due to service-connected disability, and which contributed to cause the Veteran's death, additional treatment records, particularly pertaining to the treatment received between February 2004 and his death in August 2008 should be obtained. In general, a surviving spouse may establish entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 where it is shown that the Veteran's death was not the result of his or her own willful misconduct and, at the time of death, the Veteran was receiving, or entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). Although a total rating was in effect for less than six years at the time of the Veteran's death, there are certain limited circumstances in which a Veteran may be found to have been "entitled to receive" compensation for total disability for the 10-year period. 38 C.F.R. § 3.22(b). The first of these is if the Veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the requisite time period, but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § 3.22(b)(1). The other basis for finding that a veteran was "entitled to receive" compensation is where there is additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, and that provides a basis for reopening a decision finally denied in the veteran's lifetime and for awarding a total service-connected disability rating retroactively. 38 C.F.R. § 3.22(b)(2). During his lifetime, in October 2003, the Veteran stated that he had been hospitalized for psychiatric treatment twice during service. The appellant testified that he had been hospitalized for psychiatric treatment in service shortly before his discharge. It is not clear whether a claim for service connection for a psychiatric condition was filed and finally denied prior to the claim for service connection for PTSD, although there is a notation that he was considered permanently and totally disabled for non-service-connected pension purposes beginning in August 1994. According to a September 2003 rating decision, there were service treatment records of record at the time the claims file was lost. However, no request for medical records has been made subsequent to the loss of the file, and, in fact, no request for records from National Personnel Records Center (NPRC) is documented. In addition, no request for clinical records has been made. Particularly in light of the heightened duty to assist, the RO must make all necessary attempts to obtain any available records showing treatment or hospitalization during service, which could be relevant to either DIC theory. 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) (2012). Expedited handling is requested.) 1. Ask the appellant to provide the following information, to the best of her ability: (a) The dates and location(s) of any in-service psychiatric hospitalizations of the Veteran. Clinical (inpatient) records are filed at NPRC by the name of the hospital in which the member was treated and by the dates of treatment. Likewise, mental health treatment records are stored by the name of the facility; therefore, the name of the hospital, and the dates of treatment, within two months, are needed for a search to be made; (b) Whether the Veteran filed a claim for service connection during his lifetime that was denied prior to the April 2003 claim for service connection for PTSD; if so, ask her to specify, as closely as possible, the date of such claim and decision, as well as the RO where it was filed. She should provide copies of all information in her possession concerning such claim, such as any notice provided by VA; (c) The treatment provider and/or facility which diagnosed colon cancer. If a VA provider, only the location or name of the facility need be furnished. If the diagnosis was given by a private doctor or hospital, the name, location, approximate date, and authorization for the release of records must be provided. 2. Request all service treatment records pertaining to the Veteran, to include U.S. Army Office of the Surgeon General (SGO) records, from the NPRC. If the appellant provides sufficient information, or if SGO records document hospitalization, also request clinical and/or mental hygiene records pertaining to the Veteran's reported in-service hospitalization for psychiatric treatment. 3. Obtain all VA treatment records pertaining to the Veteran dated from January 1995 to September 1999, and from February 2004 through August 2008, from the Central Texas Health Care System, and any other identified facility. In particular, all records pertaining to mental health/psychiatric treatment, as well as lower gastrointestinal tract/colon evaluations, studies, diagnoses, and treatment, including involving colon cancer, must be obtained. 4. Make all necessary attempts to obtain all other medical records identified by the appellant pursuant to paragraph 1(c) above. 5. Thereafter, the claims file should be referred for a VA medical opinion regarding the cause of the Veteran's death. The physician should review the claims file and offer an opinion as to the following: Based on the record as a whole, is it at least as likely as not (i.e., 50 percent or greater probability) that the service-connected PTSD, or disability otherwise related to service, or to PTSD, played any role in his death, contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to the production of death, and/or was causally connected to his death; caused debilitating effects and general impairment of health to an extent that it rendered him materially less capable of resisting the effects of his conditions which resulted in death; or was of such severity as to have a material influence in accelerating death in the event that such service-connected disability was progressive or debilitating? In particular, is it at least as likely as not that the symptoms of the Veteran's service-connected PTSD were of such severity as to cause him to delay treatment, such that the colon cancer progressed, and death from colon cancer was hastened or accelerated? The rationale for all opinions expressed must be provided. 6. Thereafter, readjudicate the claims for DIC, based on service connection for the cause of the Veteran's death, and under 38 U.S.C.A. § 1318, in light of all evidence of record. If either claim is denied, furnish the appellant and her representative with a Supplemental Statement of the Case, and provide an opportunity for response, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters that 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 remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).