Citation Nr: 1323834 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-38 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318. 3. Entitlement to increased DIC compensation due to the need for aid and attendance and/or housebound status as a surviving spouse. ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from April 1948 to June 1953. He died in November 2007; the appellant is the Veteran's daughter, who was substituted as a party following the death of her mother, the Veteran's surviving spouse, and upon filing a VA form 21-601, Application for Accrued Amounts Due a Deceased Beneficiary, in February 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision (RD) by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 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). FINDINGS OF FACT 1. The Veteran died in November 2007 from possible pulmonary embolism secondary to bedridden status, due to (or as a consequence of) pleural effusion questionable malignancy, due to (or as a consequence of) congestive heart failure. 2. At the time of the Veteran's death, service connection was in effect for the following disabilities: residuals, right frozen foot, rated as 30 percent disabling; residuals, left frozen foot, rated as 30 percent; right (dominance unknown) shoulder bursitis, residual of shell fragment wound, rated as 10 percent disabling; residuals, gunshot wound, left heel, rated as 10 percent disabling, and left hallux amputation, rated as 10 percent disabling. A total rating based on individual unemployability due to service-connected disabilities was in effect since January 15, 2000. 3. Competent medical opinion evidence indicates that the Veteran's service-connected disabilities did not materially contribute to or accelerate his death. 4. Possible pulmonary embolism secondary bedridden status, pleural effusion questionable malignancy or congestive heart failure were not present during active service or manifested within one year of discharge from active service, and none of the disorders was etiologically related to the Veteran's active service or service-connected disabilities. 5. The Veteran died more than 5 years following his discharge from service and did not have a service-connected disability rated as totally disabling for at least 10 years prior to his death. 6. Although the Veteran's surviving spouse may have qualified for aid and attendance and/or housebound status medically, the preliminary requirements for increased DIC have not been shown. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012). 2. The claim for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 is without legal merit. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. §§ 322, 20.1106 (2012). 3. The basic eligibility criteria for enhanced death compensation benefits for a surviving spouse due to the need for aid and attendance and/or housebound status have not been met. 38 U.S.C.A. § 1541 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.351, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the cause of the Veteran's death, DIC and aid and attendance and housebound benefits for the Veteran's now-deceased surviving spouse, who was the former appellant. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Also, in the context of a claim for service connection for cause of death, 38 U.S.C.A. § 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). With respect to the claims for DIC under 38 U.S.C. § 1318 and for death pension benefits, the pertinent facts are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claims, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). With respect to the other matters on appeal, in December 2007, prior to the initial adjudication of the claims, the RO sent the former appellant VCAA notice advising her of the elements to establish entitlement to the benefits she was seeking. The notice described the respective duties of VA and the claimant in obtaining evidence. An additional letter was sent in March 2009, during the course of the appeal. To the extent that complete VCAA notice with respect to the foregoing matters was not sent until after the originating agency's initial adjudication of the claims, the Board finds there is no prejudice to the appellant in proceeding at this point with issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds that the appellant has been afforded adequate assistance in regard to the claims. The Veteran's service treatment records (STRs) were noted as unavailable and fire-related in a May 1989 rating decision. Records from the office of the surgeon general, department of the Army, were obtained at that time and are of record. The certificate of death and post-service treatment records are also of record. All indicated development to obtain records pertinent to the claims has been completed. The Board requested that records relevant to the Veteran's surviving spouse's claim for aid and attendance and or housebound benefits be submitted. A report from the surviving spouse's physician along with some treatment records was provided. The Veteran's Service Personnel Records (SPRs) include his DD 214. The Board acknowledges that a VA medical opinion addressing whether the causes of the Veteran's death were related to service or whether the disabilities for which service connection was in effect at the time of the Veteran's death caused or contributed to his death was obtained in March 2008. The physician's opinion is found to be thorough and well-supported by the record. The Board has determined that VA is not obliged to obtain an additional medical opinion because there is no competent evidence suggesting that his cause of death was related to service or service-connected disability. The certificate of death identifies the disabilities that caused the Veteran's death, and there is no competent evidence suggesting that any other disorder played a significant or material role in the Veteran's death. Therefore, the medical evidence currently of record is sufficient to decide the claims. In sum, the Board is satisfied that that any procedural errors in the originating agency's development and consideration of the claims were insignificant and not prejudicial to the appellant. Accordingly, the Board will address the merits of the claims. Analysis I. Service Connection for Cause of the Veteran's Death Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one which was incurred in or aggravated by active service; one which may be presumed to have been incurred or aggravated during such service; or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests cardiovascular disease, malignant tumors or certain pulmonary disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal or primary, cause of death when such disability, 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). A contributory cause of death inherently is one not related to the principal cause of death. In determining whether 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. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). 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 resting the effects of other disease or injury primarily causing death. Where the service-connected condition affect vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be presumed. 38 C.F.R. § 3.312(c)(3). According to the certificate of death the Veteran died in November 2007 from possible pulmonary embolism secondary bedridden status, due to (or as a consequence of) pleural effusion questionable malignancy, due to (or as a consequence of) congestive heart failure. No other significant conditions are listed as having contributed to the Veteran's death. At the time of the Veteran's death, service connection was in effect for the following disabilities: residuals, right frozen foot, rated as 30 percent disabling; residuals, left frozen foot, rated as 30 percent; right (dominance unknown) shoulder bursitis, residual of shell fragment wound, rated as 10 percent disabling; residuals, gunshot wound, left heel, rated as 10 percent disabling, and left hallux amputation, rated as 10 percent disabling. A combined 70 percent rating and a total rating based on individual unemployability due to service-connected disabilities (TDIU) was in effect from January 15, 2000. The Veteran's SGO records show no treatment for or diagnosis of congestive heart failure or pulmonary embolism. They are negative for evidence of any cardiac or pulmonary disorder. They show that the Veteran was treated for a compound fracture of the tarsal and calcaneal bones due to bullet wounds. The Veteran's DD 214 reflects that he received the Combat Infantryman's Badge as well as a Purple Heart for wounds incurred as a result of action with enemy forces in Korea in September 19551, and April 1951. VA medical records include a compensation and pension evaluation dated in February 1989 showing that the Veteran was listed as having severe cardiovascular disease as far back as 1989. The report of a VA arteries and veins examination in June 1998 notes that the Veteran underwent toe amputations in 1995 and 1997. He reported that his feet turned black due to exposure to ice and snow in Korea in service. He was reportedly treated and released back to the front line for six more months of active duty. He reported that he then had some more pain, but the remaining two years he remained on the front line. The Veteran was noted to have denied any complaint or report of disability for 35 years after discharge. He was now a diabetic and had been on insulin for eight years. The examiner opined, after discussing the case with two surgeons, and reviewing the patient, that the signs and symptoms and history were consistent with lower extremity distal peripheral vascular disease typically associated with diabetes mellitus without evidence of frostbite injury. VA treatment records date from 1996 to the date of death in November 2007. The records in close proximity to the Veteran's death show that he had been undergoing therapy in November 2007 to increase his strength but that he passed away before his goals could be achieved. A VA physician prepared an opinion in association with this claim in March 2008. The examiner opined that the Veteran's service-connected cold injuries, gunshot wound residuals of the left heel, right shoulder disability and amputation of left hallux did not materially contribute or accelerate his death. He opined that there was no compelling medical evidence that links the service-connected conditions to the cause of death congestive heart failure and possible pulmonary embolism. Appellant argues in her VA form 9, substantive appeal, that her father could not do physical therapy at the time of his death due to missing toes and swelling in his lower extremities. She believes that his death was due to his bedridden status and that all of his service-connected disabilities should be considered rather than just his pulmonary condition. On review of the evidence above, the Board finds there is no competent evidence of the presence of any of the certified causes of the Veteran's death in service or until decades thereafter. Similarly, there is no competent evidence linking any of the certified causes of death to service or service-connected disability. The Board further notes that there is no competent evidence that any of the disabilities for service connection was in effect at the time of the Veteran's death caused or contributed to the Veteran's death. Although the Veteran's disabilities were rated at a significant combined rating, and his disabilities were deemed to warrant a TDIU from January 2000, the medical opinion evidence shows that the disorders did not result in his death. The Board finds this uncontroverted medical opinion to be well-supported and not inconsistent with the record. It is accorded significant probative weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The appellant has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence presented by the appellant in the form of correspondence to VA, in which it was generally asserted that the Veteran's death was connected to service. A layperson can certainly provide an eyewitness account of a Veteran's visible symptoms. The Board does not doubt the sincerity of her belief and has considered her contentions. However, as a lay person, she is not competent to answer the medical questions presented in this appeal. See Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). It is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, as outlined above, there is no indication in the medical evidence that the Veteran's death was connected to his active service. Therefore, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In so concluding, the Board in no way intends to minimize the Veteran's sacrifices for his country, which are deserving of the highest respect. The Board, however, is obligated to decide cases based on the evidence before it rather than based on equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). II. Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 Pursuant to 38 U.S.C.A. § 1318(a), DIC is payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected. A "deceased veteran" for the purposes of this provision is a veteran who died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years from the veteran's separation from active service. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22. The total rating may be schedular or based on individual unemployability (TDIU). 38 C.F.R. § 3.22. Except with respect to a claim for benefits under the provisions of 38 U.S.C.A. § 1318 and certain other cases, issues involved in a survivor's claim for death benefits will be decided without regard to any prior disposition of those cases during the veteran's lifetime. 38 C.F.R. § 20.1106. Based on a thorough review of the evidence, the Board finds that the appellant is not entitled to DIC under 38 U.S.C. § 1318. The Veteran was rated totally disabled due to service-connected disability was on TDIU in a June 2002 rating decision, effective January 15, 2000. He died in November 2007, more than 5 years following his discharge from service and did not have a service-connected disability rated as totally disabling for at least 10 years prior to his death. As the pertinent facts are not in dispute and the law is dispositive, this claim must be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). III. Entitlement to increased DIC due to the need for aid and attendance and/or housebound status for the Veteran's spouse Increased compensation is payable to a surviving spouse by reason of need for aid and attendance or if not in need of aid and attendance, by reason of being housebound. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. A surviving spouse will be considered in need of regular aid and attendance if she: is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes or concentric contraction of the visual filed to 5 degrees or less; or, is a patient in a nursing home because of mental or physical incapacity; or, establishes a factual need for aid and attendance under the criteria set for in § 3.352(a). 38 C.F.R. § 3.351(a)(4), (b), (c). The following factors will be accorded consideration in determining the need for regular aid and attendance (§ 3.351(c)(3)): inability of a claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustments of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). Increased compensation is payable to a surviving spouse, who does not qualify for increased compensation based on need for aid and attendance, if the surviving spouse is permanently housebound by reason of disability. The permanently housebound requirement is met when the surviving spouse is substantially confined to her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime. 38 C.F.R. § 3.351(f); see also Veterans Benefits Administration Manual Rewrite M21-1MR, Part V, Subpart ii, Section 3, Par. 1. The appellant contends that, prior to her death, her mother (the former appellant) required the aid and attendance of another or was rendered housebound due to her disabilities. A September 2009 letter from her mother's attending nephrologist details multiple medical problems as well as her need for twice weekly hemodialysis. Given this review of the record, the Board finds that the Veteran's surviving spouse certainly had serious medical problems prior to her death in October 2009. However, as the claims of service connection for cause of the Veteran's death, and entitlement to DIC benefits are being denied, the Appellant has not demonstrated basic entitlement to benefits for DIC. Accordingly, the claim must be denied. Basic eligibility criteria for enhanced death compensation benefits for a surviving spouse due to the need for aid and attendance and/or housebound status have not been met. ORDER Service connection for the Veteran's cause of death is denied. Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is denied. Entitlement to aid and attendance or housebound benefits for the Veteran's spouse is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs