Citation Nr: 1318602	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  09-37 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death. 

2.  Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel

INTRODUCTION

The appellant is the surviving spouse of a Veteran who served on active duty from February 1969 to February 1971 and from August 1977 to October 1977.  The Veteran died in August 2008.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO).

Please note 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 matter of service connection for the cause of the Veteran's death is being remanded to the RO via the Appeals Management Center (AMC) in Washington D.C.  VA will notify the appellant if action on her part is required.


FINDING OF FACT

At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW).


CONCLUSION OF LAW

The legal requirements for establishing entitlement to DIC under 38 U.S.C.A. § 1318 are not met.  38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Board has considered whether the provisions of the VCAA apply in this matter.  The Board finds that because the determination in this matter is strictly limited to statutory interpretation, the provisions of the VCAA do not apply.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that a failure to comply with the notice requirement of the VCAA is not prejudicial to the claimant if, based on the facts alleged, no entitlement exists.  See Valiao v. Principi, 17 Vet. App. 229, 232 (2003). 

The January 2009 corrected notification letter (which included a copy of the October 2008 rating decision) advised the appellant that her claim for DIC was denied and the August 2009 statement of the case (SOC) advised her that she lacked a legal requirement for DIC under 38 U.S.C.A. § 1318.  As no reasonable possibility exists that further notice or assistance would aid in substantiating the  claim for DIC under 38 U.S.C.A. § 1318, any deficiencies of VCAA notice or assistance in that matter are rendered moot.  See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). 


Legal Criteria, Factual Background, and Analysis

Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war (POW) and died after September 30, 1999.  38 U.S.C.A. § 1318. 

The facts of this case are not in dispute.  The Veteran was not an Ex-POW.  His service-connected disability (emphysema) was rated totally disabling effective from September 18, 2003.  Since he died in August 2008, he had received compensation for disability rated totally disabling for less than 10 years prior to his death, and had not been continuously rated totally disabled since his most recent discharge from service (in October 1977).  Thus, the legal criteria for DIC benefits under 38 U.S.C.A. § 1318 are not met, and the appellant's claim for this benefit must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 


ORDER

Entitlement to DIC under 38 U.S.C.A. § 1318 is denied.



REMAND

The Veteran died in August 2008.  His death certificate shows that the immediate cause of his death was a [self-inflicted] shotgun wound to the head.  No underlying cause of death was listed.  The Veteran had established service connection for emphysema (rated 100 percent).  

The appellant's theory of entitlement to service connection for the cause of the Veteran's death is essentially that he committed suicide due to his depression over his COPD and the fear of a painful and prolonged death due to his disease.  See December 8, 2009 VA psychology note.  She also contends that his anxiety and depression were brought on by his severe emphysema (and inability to breathe), which rendered him incapable of participating in activities with family and friends and caused him to become withdrawn.  She also claims that the Veteran was treated for PTSD since 1998.  See September 2009 VA Form 9, Appeal to Board of Veterans' Appeals.  

A December 8, 2009 VA psychologist's note states that the "Veteran's history of combat-related PTSD and generalized anxiety caused him to think in a catastrophic manner; in other words, he tended to default to the worst possible outcome as a feature of his anxiety disorders.  It is reasonable to think that when told he would be put on a ventilator, this cognitive processing style caused strong negative emotions."  A subsequent letter in support of the appellant's claim dated later the same month reflects review of the Veteran's medical history leading to his suicide and notes his "deepening depression" and "feeling of hopelessness that his health would ever stabilize."  

In June 2010, a VA physician reviewed the Veteran's claims file, noted his service-connected emphysema, and opined that "it is LESS likely than not that [the Veteran's] suicide was solely related to depression about emphysema" (emphasis in original).  The examiner explained that the Veteran had a "premorbid psychiatric history" such as substance addiction and PTSD which "make it impossible to state with certainty that [his] suicide was due to depression/anxiety from his emphysema alone."  This opinion is inadequate for rating purposes because it does not specifically address whether the Veteran's service-connected disability was a contributory cause of his death.  Hence, another medical opinion is necessary.

The Board also finds that pertinent/perhaps critical evidence in this matter appears to be outstanding and must be secured.  The June 2010 VA opinion notes that the Veteran "had a previous diagnosis of PTSD and Alcohol Abuse" and he "was admitted in 1998 for suicidal ideation with a plan."  The record before the Board does not include the 1998 psychiatric hospitalization report.  Further, review of the record found that a search of the Veteran's CAPRI (Compensation and Pension Records Interchange) records was conducted and only treatment reports containing the word "depression" were associated with the claims file.  Complete VA treatment records are constructively of record; under the circumstances of this case, complete records are necessary, and must be secured.

Finally, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that proper VCAA notice in a claim for dependency and indemnity compensation (DIC) must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.

A September 2008 letter advised the appellant of VA's duties to notify and assist in the development of her claim prior to its initial adjudication.  It explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, the evidence she was responsible for providing, and advised her to submit any evidence or provide any information she had regarding her claim.  It also instructed the appellant to "[p]rovide medical evidence that will show a reasonably probability that the condition that contributed to the veteran's death was caused by injury or disease that began during service."  Such a statement does not, however, comport with the requirements outlined by the Court in Hupp; specifically, the Veteran's previously service-connected emphysema was not identified.

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.  The RO must send the appellant a letter providing her the notice required under Hupp v. Nicholson, 21 Vet. App. 342 (2007), specifically identifying the Veteran's service connected emphysema and providing an explanation of the evidence and information required to substantiate a DIC claim based on such disability, as well as an explanation of the evidence and information required to substantiate a DIC claim based on any conditions not yet service-connected.  The appellant should have opportunity to respond.

2.  The RO should secure the Veteran's complete VA treatment records, specifically including the 1998 psychiatric hospitalization reports.  If any VA records are unavailable, the reason must be explained in the record.

3.  After the development sought above is completed, the RO should arrange for the Veteran's claims file to be forwarded to a VA psychiatrist for review and a medical advisory opinion regarding a nexus between the Veteran's suicide-death and his service/service connected disability.  Following review of the record (to include this remand), the consulting physician should provide an opinion that responds to the following: 

Is it at least as likely as not (a 50 percent or better probability) that a psychiatric disability caused the Veteran's suicide or contributed to cause his suicide and was related to (incurred or aggravated in) his service or was caused or aggravated by his service-connected emphysema?  Please comment on the theory that the Veteran's anxiety and depression were brought on by his severe emphysema and that fear of a painful and prolonged death due to his service-connected disease caused him to commit suicide.  The consulting physician must explain the rationale for all opinions, specifically addressing the December 2009 and June 2010 medical statements, expressing agreement or disagreement with each, and explaining the rationale for the agreement or disagreement. 

4.  The RO should then review the record, ensure that all development sought is completed, and then readjudicate the claim of service connection for the cause of the Veteran's death.  If it remains denied, the RO should issue an appropriate supplemental SOC and afford the appellant and her representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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 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).


______________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs