Citation Nr: 1312285 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 09-20 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310. 2. Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1944 to June 1946. He died on March [redacted], 2006, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. Accrued benefits were also denied, and the discussion of this decision was contained in paragraph 1, which was the section pertaining to the service connection claim. The Appellant filed a notice of disagreement (NOD) indicating that she disagreed with paragraph 1, which included both the service connection claim and the accrued benefits claim. The statement of the case (SOC) issued after she noted her disagreement addressed service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310, as well as DIC compensation under 38 U.S.C.A. § 1318, which had not been appealed, but did not properly address the Appellant's accrued benefits claim. As will be discussed in more detail below, the accrued benefits claim will be remanded so that it can be properly addressed in an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Subsequent to the issuance of the SOC, the Appellant appealed all of the issues discussed therein, which includes the DIC claim under section 1318. Accordingly, the Board's discussion will address both the service connection claim under section 1310 and the DIC claim under section 1318. The Appellant and her daughter testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge (VLJ) at the San Antonio RO in September 2012. A transcript of the hearing has been associated with the claims folder. The issue of entitlement to accrued benefits 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. FINDINGS OF FACT 1. The certificate of death reflects that the Veteran died at the age of 80 in March 2006. The immediate cause of death was listed as hypoxia. 2. At the time of his death, service connection was in effect for chronic venous stasis of the left lower extremity; residuals of a shell fragment wound to the left tibia, fracture to the left fibula, muscle group XII; residuals of a shell fragment wound to the right leg and thigh, muscle group XIV with scar; residual scar, left tibia associated with residuals, shell fragment wound, left tibia, fracture left fibula, muscle group XII; and, shortening of left leg associated with residuals, shell fragment wound, left tibia, fracture left fibula, muscle group XII. 3. A disability incurred in service was the principal or contributory cause of the Veteran's death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.312 (2012). 2. The Appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed as moot. 38 U.S.C.A. § 1318 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting any decision rendered. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claim. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the claim for entitlement to the cause of the Veteran's death is granted, VCAA compliance need not be addressed. Service Connection for Cause of Death under 38 U.S.C.A. § 1310 Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that the disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2012). The Veteran's immediate cause of death was hypoxia, due to aspiration, due to cerebral vascular accident, with end-stage renal disease shown as a contributing cause. At the time of his death, the Veteran was service connected for chronic venous stasis of the left lower extremity; residuals of a shell fragment wound to the left tibia, fracture to the left fibula, muscle group XII; residuals of a shell fragment wound to the right leg and thigh, muscle group XIV with scar; residual scar, left tibia associated with residuals, shell fragment wound, left tibia, fracture left fibula, muscle group XII; and, shortening of left leg associated with residuals, shell fragment wound, left tibia, fracture left fibula, muscle group XII. The Appellant contends that the Veteran's service-connected chronic venous stasis contributed to his death. The Veteran's private physician provided a medical opinion in which he asserted that the Veteran's hypoxia was as likely as not related to the residuals of the shell fragment wound to his left leg, because of the likelihood of a pulmonary embolus forming in his leg while he was ill due to the residuals of that injury. See Dr. A.C. letter dated September 27, 2009; DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 614 (31st ed. 2007) ("embolus" means "a mass, which may be a blood clot or some other material, that is brought by the bloodstream through the vasculature, lodging in a vessel or bifurcation too small to allow it to pass, obstructing the circulation"); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; instead, this need only be an as likely as not proposition). The Veteran's wife and daughter testified that the Veteran previously experienced blood clots in his left leg. See Hearing transcript page 4. The Board finds this testimony both credible and competent, as it is supported in the record. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also VA examination dated June 8, 2012; VA examination dated September 13, 2005. The Board further finds Dr. A.C.'s opinion probative to the issue under appeal. He was familiar with the Veteran's relevant medical history, including a review the Veteran's VA medical records, which had been provided by Appellant, and his opinion is consistent with other evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion). The Veteran's medical history, including Dr. A.C.'s opinion, was reviewed by a VA physician for the purpose of obtaining an opinion on the impact of the Veteran's service-connected disabilities on his cause of death. The VA physician opined that it was less likely than not that the Veteran's service-connected disabilities contributed to or caused the Veteran's death, given that he had respiratory arrest prior to passing away, as well as multiple medical conditions associated with chronic renal failure, and that there was a low probability that the Veteran died from a fatal pulmonary embolus. See Compensation and Pension Exam Report dated June 8, 2012. As with the Dr. A.C.'s opinion, the Board finds this opinion probative. The VA physician was familiar with the Veteran's relevant medical history, and his rendered opinion is consistent with the other evidence of record. There are no other medical records addressing this specific issue. The file does contain the private hospital records from the day of the Veteran's death, but they do not address whether there is a relationship between cause of death and his service-connected disabilities. See Baptist Health System dated March [redacted], 2006. Thus, the evidence for and against the Appellant's claim is in relative equipoise. When the evidence for and against a claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Board finds that the Veteran's service-connected disabilities, specifically the residuals of the shell fragment wound, caused or contributed to hypoxia, which was the Veteran's immediate cause of death, therefore service connection for the cause of the death is granted. Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318 In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. See, generally, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). Because the Board has granted service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310, the matter of the Appellant's alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Cf. Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310 is granted. The claim of entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318 is dismissed. REMAND As described in the Introduction, the RO denied the Appellant's claim for accrued benefits, finding that the Veteran had a claim pending at the time of his death, but that the benefits stemming therefrom had already been paid, and that no additional entitlement was found based on the evidence of record. See Rating decision dated November 30, 2006. After the Appellant noted her disagreement, the issue was briefly mentioned in the SOC, at the end of the discussion concerning service connection for the cause of the Veteran's death, where it was noted that the Appellant was not entitled to accrued benefits because the requirements for entitlement had not been met. The SOC did not, however, contain a complete summary of the applicable laws and regulations pertinent to the issue, in that the legal provisions setting forth the requirements for obtaining accrued benefits were not listed. 38 C.F.R. § 19.29(b) (2012). As such, the SOC, in regard to this issue, is legally deficient, and a complete SOC addressing entitlement to accrued benefits must be issued. See 38 C.F.R. §19.9(c) (2012); see also Manlincon v. West, 12 Vet.App. 238 (1999); Godfrey v. Brown, 7 Vet. App.398, 408- 410 (1995). The Board emphasizes that the Appellant must perfect her appeal in order to obtain appellate review of this claim. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Accordingly, the case is REMANDED for the following action: 1. The RO should issue a statement of the case (SOC) to the Appellant and her representative addressing the Appellant's claim for accrued benefits. The Appellant is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 38 C.F.R. § 20.302(b) (2012). The Appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs