Citation Nr: 1326305 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-31 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1946 to October 1947 and from October 1948 to July 1959. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board obtained an expert medical opinion in January 2013. FINDINGS OF FACT 1. The Veteran died on September [redacted], 2009; the immediate cause of death was unknown - autopsy not performed - sudden death; diabetes mellitus (DM), peripheral artery disease (PAD), abdominal aortic aneurysm (AAA), and posttraumatic stress disorder (PTSD) were listed as underlying causes of death. 2. At the time of the Veteran's death, service connection in effect for PTSD, rated as 50 percent disabling; phlebitis of the right arm, rated as 30 percent disabling; left kidney calculus and chronic prostatitis, rated as 30 percent disabling; varicose veins of the right lower extremity, rated as 10 percent disabling; varicose veins of the left lower extremity, rated as 10 percent disabling; and postoperative bilateral inguinal hernia rated as 0 percent disabling. The Veteran was also granted individual unemployability effective June 2012. 3. The Veteran's service-connected PTSD was a likely contributing factor in his death. 4. A total service-connected disability rating was not in effect for 10 years at the time of the Veteran's death nor is there any indication that the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in March 2010 and June 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection for the Cause of the Veteran's Death A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2012). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2012). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death; instead, a causal relationship must be shown. 38 C.F.R. § 3.312 (2012). The appellant, who seeks surviving spouse benefits, is seeking service connection for the cause of the Veteran's death. She asserts that the Veteran's service-connected PTSD was an underlying cause of death listed on his death certificate and substantially contributed to the Veteran's sudden death. The Veteran's September 2009 death certificate indicates that the immediate cause of death was unknown - autopsy not performed - sudden death; DM, PAD, AAA, and PTSD were listed as underlying causes of death. At the time of the Veteran's death, service connection in effect for PTSD, rated as 50 percent disabling; phlebitis of the right arm, rated as 30 percent disabling; left kidney calculus and chronic prostatitis, rated as 30 percent disabling; varicose veins of the right lower extremity, rated as 10 percent disabling; varicose veins of the left lower extremity, rated as 10 percent disabling; and postoperative bilateral inguinal hernia rated as 0 percent disabling. The Veteran was also granted individual unemployability effective June 2012. VA treatment records dated from February 2008 to August 2009 reflect that the Veteran was not taking any medication for his service-connected PTSD. Private treatment reports from C. Baker, M.D., dated from January 2007 to June 2009 indicated that at his last appointment in June 2009, the Veteran was assessed with a history of hypertension, diabetes mellitus type II, abdominal aortic aneurysm, periperhal arterial disease, hypothyroidism, hyperlipidemia, history of elevated prostate specific antigen (PSA), renal mass concerning for malignancy, history of nephrolithiasis, history of tobacco abuse/heavy smoker, history of asbestos exposure/pleural thickening, PTSD, anxiety, depression, chronic pain syndrome, osteoarthritis/degenerative joint disease, benign prostatic hyperplasia (BPH) status post transurethral urethral resection of the prostate (TURP). Private treatment records from St. Mary's Medical Center dated in September 2009 indicate that at some point prior to his death, the Veteran fell and struck his head in the bathroom. Thereafter, he collapsed at home and was asystole and an ambulance was called. The paramedics intubated the Veteran and performed cardiopulmonary resuscitation (CPR) on the scene and during the trip to the hospital. Additional treatment was performed at the hospital. The Veteran remained asystole and a code was called. The treatment notes indicate that the family opted not to have an autopsy performed. In a statement dated in March 2010, Dr. Baker indicated that he treated the Veteran for multiple medical problems since January 2007. Dr. Baker stated that the Veteran died in September 2009 of sudden death. He reported that the appellant found the Veteran and emergency medical technicians were unable to revive him and the Veteran died on the way to the hospital. Dr. Baker indicated that the Veteran's family opted not to perform an autopsy and as a result the exact cause of the Veteran's death was unknown. He indicated that it was very likely that it was due to one if not several of the Veteran's different medical issues noted in treatment records dated from January 2007 to June 2009. A VA medical opinion was obtained in August 2011 at which time the physician indicated that the claims file had been reviewed. The physician noted the cause of the Veteran's death and the underlying causes of death indicated on the Veteran's certificate of death. The physician opined that the Veteran's service-connected disabilities including PTSD, phlebitis of the right arm, left kidney calculus and chronic prostatitis, varicose veins of the bilateral lower extremities, and postoperative bilateral inguinal hernia were less likely than not to have caused or contributed in causing the death of the Veteran. The examiner indicated that there was no evidence in the claims file, on the death certificate, or in the treatment notes from St. Mary's that any cause of death was inferred or stated that could relate to any of the Veteran's service-connected illnesses. The physician noted that the Veteran had diabetes and was a smoker and that these health issues were risk factors for sudden cardiac death. The examiner concluded that it was not at least as likely as not that the Veteran's service-connected disabilities caused or contributed to the Veteran's death. An expert medical opinion was obtained from a Veterans Administration physician in January 2013. In April 2013, the physician reviewed the relevant treatment records and history. She noted that sudden death is often caused by underlying cardiac, neurological, or pulmonary disorders with coronary heart disease (CHD) accounting for the majority of cases. Risk factors for sudden cardiac death include coronary artery disease, heart failure, arrhythmias, structural heart disease, and cardiac electrical conduction abnormalities. The examiner noted that the Veteran had a documented history of PAD and data suggests that CHD is the major cause of death in patients with PAD. The physician reported that the Veteran's other risk factors included hyperlipidemia, hypertension, diabetes, and tobacco use. Additionally, recent date suggests that PTSD increases a person's risk for CHD. She indicated that a number of studies have been published about PTSD and its relationship to CHD. The physician reviewed the results of several studies which indicate that PTSD more than doubled the risk of early-age heart disease mortality, Veteran's who had five or more PTSD symptoms had a threshold increased risk of CHD, prolonged stress reaction lead to biological alterations and cardiovascular damage, and patients with PTSD have been shown to have low vagal tone which can lead to increased systemic inflammation and may increase one's risk for plaque rupture, acute coronary syndrome, and myocardial infarction. The examiner concluded that although the Veteran's exact cause of death was unknown, he had significant risk factors for CHD and sudden cardiac death, including hyperlipidemia, hypertension, diabetes, tobacco use, and PTSD. She concluded that it was her professional opinion that the Veteran's underlying PTSD was likely a contributing factor in his demise. Having reviewed the complete record, the Board finds that the evidence establishes that service connection is warranted for the cause of the Veteran's death. While the August 2011 VA physician concluded that it was not at least as likely as not that the Veteran's service-connected disabilities caused or contributed to the Veteran's death, the April 2013 VA physician concluded that it was likely that PTSD was a contributing factor in the Veteran's demise. Moreover, the April 2013 physician included reference to medical literature to support her conclusion and included a thorough rationale for her opinion. Consequently, the Board finds that a grant of service connection is warranted. Resolving reasonable doubt in favor of the appellant, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. DIC Benefits Pursuant to 38 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318(a) benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service-connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was (1) rated totally disabling for a continuous period of 10 or more years immediately preceding death; (2) rated by the VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or (3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318(b) (West 2002); 38 C.F.R. § 3.22 (2012). "Entitled to receive" means that at the time of death, the Veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the Veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; (3) the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (6) VA was withholding payments because the Veteran's whereabouts was unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22 (2012). 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 issues during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2012). The pertinent regulation precludes a determination of "hypothetical entitlement" that entitlement could have accrued had a claim been filed. 38 C.F.R. § 3.22 (2012); Rodriguez v. Peake, 511 F. 3d 1147 (Fed. Cir. 2008). In this case, the record shows that at the time of the Veteran's death in September 2009. At the time of his death, service connection in effect for PTSD, rated as 50 percent disabling; phlebitis of the right arm, rated as 30 percent disabling; left kidney calculus and chronic prostatitis, rated as 30 percent disabling; varicose veins of the right lower extremity, rated as 10 percent disabling; varicose veins of the left lower extremity, rated as 10 percent disabling; and postoperative bilateral inguinal hernia rated as 0 percent disabling. Individual unemployability was granted effective June 19, 2002. The Veteran was not rated totally disabled for a continuous 10 year period prior to his death; and he was not continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, it has not been shown nor has it been alleged that the Veteran was "entitled to receive" compensation for service-connected disability rated totally disabling under any of the circumstances listed under 38 C.F.R. § 3.22(b). Based on the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C.A. § 1318 is not warranted in this case. Although the Board is sympathetic to the appellant, there is simply no basis in law to allow the benefits sought. Unfortunately, for the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the appellant's claim, and that claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2012). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318 is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs