Citation Nr: 1324260	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  10-19 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

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

2.  Entitlement to Survivors' and Dependents' Educational Assistance (DEA) benefits under 38 U.S.C., Chapter 35.

3.  Entitlement to accrued benefits.

4.  Entitlement to nonservice-connected death pension benefits.


REPRESENTATION

Appellant represented by:	West Virginia Division of Veterans Affairs


ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from June 1941 to October 1945 and from September 1950 to August 1953.  He died in December 1995.  The appellant is his surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied service connection for the cause of the Veteran's death, entitlement to accrued benefits, and eligibility to DEA.

In April 2013, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.

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 issue of entitlement to nonservice-connected death pension 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 Veteran died in December 1995 from cardiopulmonary arrest, due to myocardial infarction.

2.  At the time of the Veteran's death, service connection was not in effect for any disability.

3.  The Veteran's cardiopulmonary arrest or myocardial infarction was not related to his active military service.

4.  At the time of the Veteran's death in December 1995, he had no pending claims, and there were no due but unpaid benefits to which the Veteran was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for the cause of the Veteran's death are not met.  38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012).

2.  Eligibility for DEA benefits under 38 U.S.C., Chapter 35 is not established.  38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012).

3.  The criteria for accrued benefits are not met.  38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

In a letter issued in November 2008, subsequent to the initial adjudication of the claims, and in subsequently issued March 2010 and April 2013 letters, the RO notified the appellant of the evidence needed to substantiate her claim for DIC.  The letters also satisfied the second and third elements of the duty to notify by informing the appellant that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.  

The appellant has substantiated the Veteran's status as a Veteran, and she was notified of the pertinent elements of Dingess, including the effective-date elements of the claims, by the March 2010 and April 2013 letters.

The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5103(a) requires that compliant VCAA notice, in the context of Death Indemnity Compensation (DIC) claims, requires (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 a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007). 

The March 2010 and April 2013 VCAA letters included notice that complied with the Court's decision in Hupp.  There was a timing deficiency in that the letters were sent after the initial adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The timing deficiency was cured by readjudication of the claim in a June 2013 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The Duty to Assist 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 


The Board notes that all indicated development has been undertaken to obtain the Veteran's service treatment records and alternative records.  Unfortunately, only limited records related to the Veteran's discharge have been found.  As discussed below, evidence from the Office of the Surgeon General related to the Veteran's medical treatment in service has also been obtained.  The Veteran's remaining service treatment records were presumably destroyed in the 1973 fire at the National Personnel Records Center.  It is clear that any additional effort to obtain service medical records would be futile.  Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  Because these records, if they existed, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind.  It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Board also notes that the record reflects that all available post-service medical records pertinent to the claim have been obtained.  Neither the appellant nor her representative has identified any additional evidence that could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.


Cause of Death

Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2012).

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, including, particularly, autopsy reports.  38 C.F.R. § 3.312(a) (2012).

The service-connected disability will be considered as the principal (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) (2012).

A contributory cause of death is inherently one not related to the principal cause.  In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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) (2012); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  

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).

With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  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, 1 Vet. App. At 54.  

Analysis

The Veteran died in December 1995.  The death certificate lists the immediate cause of death as cardiopulmonary arrest, due to myocardial infarction.  Service connection was not in effect for any disability during the Veteran's lifetime.  Thus, here, a favorable decision is possible with evidence that the immediate cause of the Veteran's death or the significant condition contributing to death was incurred in, or aggravated by, service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).

The appellant contends that the cardiopulmonary arrest and myocardial infarction that caused the Veteran's death were directly related to wounds of the ears and fingers he was treated for during active duty.  Specifically, she contends that the Veteran had wounds of the ear and fingers during his tour of duty in the European Theater of World War II and that these wounds weakened his heart and contributed to cause his death.  

The evidence of record does not show that the Veteran's cardiopulmonary arrest or myocardial infarction was related to his active military service.  

As noted above, service treatment records are unavailable.  However, evidence obtained from the Office of the Surgeon General shows that the Veteran was treated for wounds to the ear and fingers during active duty in 1945.  These records are negative for any evidence of heart disease or cardiac problems during service, or any evidence that the Veteran's ear and finger wounds caused any cardiac problems.  

There is no post-service medical evidence of record showing any continued treatment for ear or finger wounds after the Veteran's discharge.  Furthermore, there is no evidence whatsoever of any post-service treatment for cardiac problems or heart disease, or any evidence that would suggest that the Veteran's heart was weakened as a result of wounds to the ear and fingers during military service.  The earliest and only evidence of cardiac problems in the record is found in the Veteran's death certificate, which does not indicate that the diagnosis was in any way related to the Veteran's active military service.  Also, the record does not contain a medical opinion linking the Veteran's cardiopulmonary arrest or myocardial infarction (heart attack) to his military service.

The Board has considered the assertions of the appellant that the Veteran's death was related to his active service.  However, these statements are not competent evidence of causation as laypersons, such as the appellant, are not qualified to render an opinion concerning the medical cause of a disorder.  38 C.F.R. § 3.159(a)(1),(2) (2012).  

In sum, the evidence shows that the Veteran developed the conditions that led to his death many years after his active military service.  These fatal conditions were not service-connected, nor does any probative medical evidence of record demonstrate that they were caused by any incident of service.  The weight of the evidence shows that no disability incurred in or aggravated by service either caused or contributed to the Veteran's death.

Accordingly, the Board must conclude that the preponderance of the evidence is against the appellant's claim.  Reasonable doubt does not arise and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002).

DEA Benefits

In order for the appellant to be eligible for educational assistance under the provisions of Chapter 35, the Veteran must have died of a service-connected disability, or been evaluated as permanently and totally disabled due to service- connected disability.  See 38 U.S.C.A. § 3501; C.F.R. §§ 3.807, 21.3020, 21.3021.  

For the reasons discussed above, the Board finds that the Veteran's death was not related to his active duty service.  Additionally, service connection was in effect for no disability at the time of the Veteran's death.  Therefore, the criteria for eligibility for educational assistance under the provisions of Chapter 35 have not been met.

Accrued Benefits

Accrued benefits are defined as "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ."  38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2012); 38 C.F.R. 3.1000 (a) (2012).  Moreover, an "[a]pplication for accrued benefits must be filed within one year after the date of death."  38 C.F.R. § 3.1000 (c) (2012).  For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death.  38 U.S.C.A. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). 

After review of the evidence, the Board finds that accrued benefits are not warranted.  First of all, the record reflects that the appellant filed a claim for VA death benefits, including accrued benefits, in October 2008, several years after the Veteran's death in December 1995.  Therefore, the claim was not timely filed.  Furthermore, the evidence demonstrates that the Veteran did not have any claims pending at the time of his death.  In this regard, in her October 2008 claim, the appellant indicated that the Veteran had never filed a claim with the VA, and the claims file does not contain any pending but unadjudicated claims from the Veteran. 
Moreover, there is no evidence of due but unpaid monetary benefits, and the Veteran did not receive service-connected disability compensation during his lifetime.  As such, there is no entitlement to accrued benefits, and the claim must be denied.  


ORDER

Service connection for the cause of the Veteran's death is denied.

Entitlement to Survivors' and Dependents' Educational Assistance under 38 U.S.C., Chapter 35 is denied.

Entitlement to accrued benefits is denied.


REMAND

The Board sincerely regrets the additional delay in adjudicating the appellant's remaining claim.  However, this remand is necessary to ensure that the appellant receives all consideration due to her under the law.

Death benefits are generally available for surviving spouses as a result of the Veteran's nonservice-connected death.  38 U.S.C.A. § 1541(a).  Basic entitlement exists if: (i) the Veteran served for 90 days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability, and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24.  See 38 C.F.R. § 3.3(b)(4).  

The phrase period of war is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean Conflict, the Vietnam Era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.  38 U.S.C.A. § 101(11); 38 C.F.R. § 3.2(f)(i).

In addition to qualifying Veterans' service, basic eligibility for nonservice-connected death pension also hinges on whether a surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24.  See 38 C.F.R. § 3.3(b)(4)(iii).

In October 2008, the appellant submitted an Application for DIC benefits, via a VA Form 21-534.  She also noted on the last page of her application that she was seeking "widow's death pension."  In the March 2009 rating decision on appeal, the RO denied service connection for the cause of the Veteran's death, entitlement to accrued benefits, and entitlement to DEA benefits.  The RO did not address the issue of entitlement to nonservice-connected death pension.

As noted above, the Veteran was not service-connected for any disability during his lifetime.  However, the record reflects that he served on active duty in the Army from September 5, 1950 to August 12, 1953 (at least 90 days), during a period of war, specifically, the Korean Conflict.  Therefore, the Board finds that the initial service requirements are satisfied with respect to the appellant's nonservice-connected death pension claim, and the appellant, his surviving spouse, is eligible for nonservice-connected death pension benefits provided she meets the required income and net worth requirements noted above.  However, the RO has not adjudicated this issue in the first instance.  Therefore, the claim must be remanded for such action.

Accordingly, the issue of entitlement to nonservice-connected death pension benefits is REMANDED for the following actions:

(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.  Send the appellant proper VCAA notice as to what is needed to substantiate the claim for entitlement to nonservice-connected death pension benefits, and undertake any development necessary before adjudication on the merits.  

In its letter, the RO should also notify the appellant and her representative of the eligibility requirements for receipt of death pension benefits, to include income requirements.  The appellant should be afforded the opportunity to submit income and expense reports for the years 1995 to the present, and she should be made aware of the types of expenses that may reduce her countable income, to include those associated with the Veteran's final illness, burial, and just debts.  Any such records so obtained should be associated with the Veteran's VA claims folder.  The RO should also request that the appellant provide updated information regarding her income and net worth, to include completing a VA Form 21-527, Income-Net Worth and Employment Statement.  
2.  Following the completion of the foregoing development, and after undertaking any additional development which it deems necessary, the RO should readjudicate the appellant's claim for nonservice-connected death pension.  If the benefits sought on appeal remain denied, in whole or in part, the RO should provide the appellant with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response.  Thereafter, the claims folder should be returned to the Board for further appellate review if otherwise in order.

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 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).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs