Citation Nr: 1306505 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 08-26 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant, daughter and son-in-law ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from November 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of July 2007, which denied service connection for the cause of the Veteran's death. The appellant appeared at a hearing before a Decision Review Officer (DRO) in December 2007. In September 2012, the appellant 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). The 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 Accrued Benefits In April 2006, the Veteran filed an application for entitlement to special monthly compensation (SMC) on account of the need for aid and attendance or housebound status. This claim was denied in an August 2006 rating decision, but the Veteran died in January 2007, before the decision became final. See 38 U.S.C.A. § 7105. The appellant filed a claim for Dependency and Indemnity Compensation (DIC), based on service connection for the cause of the Veteran's death, in February 2007. A claim by a surviving spouse for DIC benefits will also be considered to be a claim for accrued benefits. 38 C.F.R. § 3.152(b). In this case, in her February 2007 DIC claim, the appellant stated that the Veteran had been bedfast for the last several years, and that she attended to his activities of daily living. Nevertheless, the RO did not construe the appellant's claim as a claim for accrued benefits. Here, because the one-year period for filing a notice of disagreement had not expired at the time of the Veteran's death, it remained pending. Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007). Because the Veteran's widow filed her DIC claim, which, as noted above, included a claim for accrued benefits, within the time remaining in the one-year appeal period, her claim for accrued benefits was timely, and remains open. Id. Moreover, this may have an impact on the claim for service connection for the cause of the Veteran's death, and, therefore, is inextricably intertwined with that issue, and must be considered in the first instance prior to a decision on the cause of death issue. Cause of Death According to the death certificate, the Veteran died in January 2007, at the age of 81 years, due to sepsis, due to aspiration. Other significant conditions contributing to death but not resulting in the underlying cause were Parkinson's disease and prostate cancer. The Veteran died at home, and the death certificate was signed by the county coroner, who was not a doctor. Evidence in the file indicates that he obtained his information from a telephone conversation with the Veteran's VA physician. The Board observes that the death certificate is not entirely satisfactory in several respects. First, the VA treatment records, especially during the last couple of years of his life, show that he suffered from multiple serious medical conditions, yet the death certificate listed only two: prostate cancer and Parkinson's disease. In particular, he was apparently last seen by the physician who provided the information for the death certificate in December 2006, about a month prior to his death. At that time, it was noted that he had advanced functional decline, and the 19 conditions noted in the assessment did not include Parkinson's disease, although history of tremor, status post neurology evaluation, stable on Sinemet, was included. Prostate cancer was noted to be stable as well. Sepsis was not diagnosed, however, and it is unclear how the physician arrived at that as the cause of death. In May 2008, the Veteran's VA physician was contacted by another county coroner, on the appellant's behalf, and asked if the death certificate could be amended to state that his death could have resulted from his service-connected disabilities. The physician stated that he could not give any information about the case to him, nor could he change the death certificate. Further, he felt that the Veteran' demise was not related to his service-connected disabilities. He refused to provide a written statement. He offered no explanation, and a bare conclusion is not entitled to any weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). At the time of the Veteran's death, service connection was in effect for chronic venous insufficiency, left leg, with stasis ulcer (40%) and a left knee total arthroplasty, residuals of fracture the left femur (30%). His combined disability rating was 60 percent. The appellant contends that the Veteran suffered from blood clots in his left leg, which she states resulted from the immobility caused to his service-connected leg injury residuals. She said that the Coumadin he was taking for the blood clots weakened his immune system, causing the aspirations which led to the sepsis. VA treatment records show that the Veteran was hospitalized in January 2005 after he had been found to have extensive deep vein thrombosis (DVT), i.e., "blood clots," in the left lower extremity, to the thigh. He was placed on Coumadin, although it was noted that there were some risk factors. The evidence of record does not indicate that a cause of the DVT has been established, although several potential causes have been posited at various times. Significantly, although in the same general location, it is not known whether the left leg DVT was caused, aggravated or otherwise related to the service-connected injury residuals (fractured left femur), which include left knee replacement and chronic venous insufficiency. The Board also notes that, beginning in April 2006, the Veteran's conditions were noted to include post- cerebrovascular accident (CVA) quadriparesis/left hemiplegia. The Board is unable to locate any record of the Veteran's actually having had a CVA, however. Records as recent as February 2006 did not mention a history of cerebrovascular accident. Given these factors, a medical opinion must be obtained. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court 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 Court 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 Court 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. Thus, a medical opinion is indicated. (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.) Accordingly, the case is REMANDED for the following action: 1. Issue to the appellant a corrective Veterans Claims Assistance Act of 2000 notice letter that includes specific notification to her of the disabilities for which service connection had been granted to the Veteran prior to his death. Hupp v. Nicholson, 21 Vet. App. 342 (2007). 2. Adjudicate the claim for entitlement to SMC on account of the need for aid and attendance or housebound status, for accrued benefits purposes. As noted above, as the appeal period following the August 2006 rating decision denying that benefit had not expired by the time of the Veteran's death, the decision was not final, and her claim for DIC, received in February 2007, is construed to have included a claim for accrued benefits, under 38 C.F.R. § 3.152(b). Furnish notice of the decision to the appellant and her representative. The issue should not be returned to the Board unless the decision is adverse to the appellant, and an appeal of the decision has been perfected. 3. 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, to include a rationale, on the following inquiries: a. Based on the record as a whole, is it at least as likely as not (i.e., 50 percent or greater probability) that the sepsis, DVT, prostate cancer, and/or Parkinson's disease were of service onset, or caused or aggravated by service-connected left femur fracture residuals, including TKA of the left knee, and/or chronic venous insufficiency? Particular attention should be given to the question of whether the left DVT was caused or aggravated by the service-connected left lower extremity disabilities, inasmuch as the location appears to have been similar to the original injury (left femur fracture) sustained in service. b. Based on the record as a whole, is it at least as likely as not (i.e., 50 percent or greater probability) that any service-connected disability, or any disability otherwise related to service, or to a service-connected disability, played any role in his death; contributed substantially or materially to the cause of death and/or combined to cause death and/or aided or lent assistance to the production of death and/or was causally connected to his death; caused debilitating effects and general impairment of heath 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? c. The CVA history with left extremity residuals noted on some records dated in and after April 2006 is not to be used against the claim, unless the physician finds evidence showing that a CVA actually occurred. 4. Thereafter, readjudicate the claim for service connection for the cause of the Veteran's death, in light of all evidence of record. If the 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 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 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).