Citation Nr: 1307315 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-25 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a paralyzed lung disability for the purpose of accrued benefits. 2. Entitlement to service connection for a right leg disability for the purpose of accrued benefits. 3. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from May 1957 to March 1961. The Veteran died in December 2011 and the Appellant is his surviving spouse. Prior to the Veteran's death, he had perfected an appeal to the Board of Veterans' Appeals (Board) with respect to the issues of entitlement to service connection for a paralyzed lung disability and a right leg disability. These claims were remanded by the Board in May 2011 but remained unadjudicated by the Board prior to his death. As such, as a matter of law, these claims of the Veteran did not survive his death. Landicho v Brown, 7 Vet. App. 42, 47 (1994). Accordingly, the Veteran's appeal to the Board with respect to the issues of entitlement to service connection for a paralyzed lung disability and a right leg disability was dismissed by the Board in a February 2012 decision. Notwithstanding the above, as the Appellant submitted an application for Dependency and Indemnity Compensation (DIC) in December 2011, well within one year of the Veteran's death, by operation of law, this claim also serves as an application for accrued benefits based on the claims for service connection for a paralyzed lung condition and a right leg disability pending at the time of the Veteran's death. 38 C.F.R. § 3.1000(c). The Appellant in her application for DIC also indicated that she was claiming entitlement to service connection for the cause of the Veteran's death. As such, the issues now for adjudication by the Board have been listed as set forth on the Title Page. The Board notes that as the decision below will grant entitlement to service connection for the cause of the Veteran's death, the Appellant is not prejudiced by the Board's initial adjudication of the issue. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Appellant has apparently spoken to an attorney regarding her case; it appears she has arranged for representation. Unfortunately, she and her attorney did a VA Form 21-22a, "Appointment of Individual as Claimant's Representative." Notice of this deficiency was given to the Appellant in December 2012 and she has not responded. As this decision is not prejudicial to the Appellant, the Board considers the Appellant unrepresented in this decision until otherwise notified. FINDINGS OF FACT 1. Based on evidence of record at the time of the Veteran's death, there was an approximate balance of the positive and negative evidence as to whether the Veteran had a paralyzed lung condition and right leg disability that was incurred in or aggravated by service. 2. There is an approximated balance of the positive and negative evidence as to whether the Veteran's death was due to a disability incurred in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Appellant's favor, the criteria for service connection for a paralyzed lung condition and right leg disability for accrued benefits purpose have been met. 38 U.S.C.A. §§ 1131, 1153, 5107, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.1000 (2012). 2. Resolving all reasonable doubt in the Appellant's favor, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1131, 1310, 5107 (West 2002 Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). Given the completely favorable resolution of the claims herein, the Board finds that no further notification or assistance is required. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an Appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence or correspondence pertinent to the matters at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. I. Accrued Benefits Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Accrued benefits are defined as periodic monetary benefits payable under laws administered by VA to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death. 38 U.S.C.A. § 5121. There are various threshold requirements that an Appellant must meet in order to pursue an accrued benefits claim. One such requirement is that applications for accrued benefits must be filed within one year after the date of death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c). A claim for DIC is deemed to include a claim for accrued benefits. Id. Another requirement is that a Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1241-1242 (Fed. Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a Veteran's accrued benefits claim is that, without the Veteran having a claim pending at the time of death, the surviving spouse has no claim upon which to derive his or her own application). The provisions of 38 C.F.R. § 3.1000(d)(5) define a claim for VA benefits pending on the date of death as a claim "filed" with VA that had not been finally adjudicated by VA on or before the date of death. In addition, as noted, accrued benefits may only be awarded on the basis of the evidence in the file at the Veteran's date of death. 38 C.F.R. § 3.1000(a). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the Veteran's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4). In pursuing service connection for a paralyzed lung condition and right leg disability prior to his death, the Veteran asserted that these conditions were the result of "Post-Polio Syndrome" (PPS) which had its onset either during or shortly after service. Pertinent evidence of record prior to the Veteran's death included a history of polio in 1942 with no current residuals of polio noted on his service entrance examination. Within two years of the Veteran's separation from service in 1963, there was documented pathology involving the claimed right leg disability in the form of University of Nebraska Hospital records demonstrating atrophy of the right lower extremity. Additional evidence of record prior to the Veteran's death included a January 1978 statement from a private physician (who reported in a subsequent statement in December 1979 that he been treating the Veteran since 1963) who indicated that the Veteran had developed a symptomatic neuromuscular disease "which may have originated as polio." A February 2005 statement from this same physician, after remarking that he had knowledge of the Veteran's disability due to polio prior to the Veteran's service because he was his family physician, reported that that he noticed that the Veteran had increased pain and weakness, to include in his right leg, shortly after his return from service. This physician concluded that heavy lifting during the Veteran's active service increased the disability due to PPS. An August 2006 report from a post polio unit of a private medical facility found that it was "most likely" that the Veteran had PPS with manifestations to include weakness in each leg. In a statement from a private physician dated and received shortly before the Veteran's death in October 2011, the medical assessment was advanced Chronic Obstructive Pulmonary Disease and PPS. The physician indicated that he had reviewed "multiple" medical records pertaining to the Veteran, and that based on such a review, there was "at least a 50% chance that his current [PPS] was aggravated by his time in the military service." In supporting this assertion, he cited to medical journals documenting that "excessive exertion or overuse predisposes to new weakness in [PPS]." To the extent that the evidence set forth above has indentified disability of the right leg, but not specifically the lung, as being due to PPS, the Veteran's death certificate listed the immediate cause of death as respiratory failure, due to, or as a consequence of, PPS. Such a finding clearly would indicate that the disability attributable to PPS also involved the lungs. Weighed against the positive evidence of record set forth is some negative evidence; in particular, the opinions (made by the same examiner) following VA medical examinations in December 2006 and June 2011 that, in their totality, essentially found no etiologic relationship between service and the Veteran's PPS or any other disease process or cause of the lung or right leg disabilities at issue. However, unless the preponderance of the evidence is against the claim, it cannot be denied. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 49. Given the positive evidence of record before the Veteran's death as set forth above, the Board cannot conclude that the preponderance of the evidence of record prior to the Veteran's death was against the claims for service connection for a paralyzed lung condition or a right leg disability. Thus, and after resolving all reasonable doubt in the Appellant's favor, the Board concludes that service connection for a paralyzed lung condition and a right leg disability, on the basis of both disabilities being due to PPS of in service occurrence or aggravation, may be granted. Id. II. Cause of Death The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). As set forth above, the Board, after resolving all reasonable doubt in the Veteran's favor, found that the disabilities for which service connection was claimed at the time of the Veteran's death were the result of PPS that was either incurred in or aggravated by service. Thus, given the fact that the death certificate indicated that the respiratory failure that resulted in the Veteran's death was due to or as a consequence of PPS, the Board cannot conclude that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. As such, and resolving any reasonable doubt in favor of the Appellant, the Board finds that service connection for the cause of the Veteran's death may be granted. ORDER Service connection for a paralyzed lung disability for the purpose of accrued benefits is granted. Service connection for a right leg disability for the purpose of accrued benefits is granted. Service connection for the cause of the Veteran's death is granted. . ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs