Citation Nr: 1327370 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-32 125A ) 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. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1941 to June 1945, and in the Air Force from August 1951 to May 1968. The appellant seeks benefits as his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2008 of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the cause of the Veteran's death and denied entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. The issue of entitlement to service connection for the cause of the Veteran's death 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 November 2007. 2. The Veteran was not evaluated as being totally disabled as a result of a service-connected disability (or based on unemployability) for 10 continuous years immediately preceding death, was not rated as being totally disabled continuously for a period of no less than five years from the date of separation from service, nor was he a former prisoner of war who died after September 30, 1999. CONCLUSION OF LAW The criteria for DIC under the provisions of 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 CONCLUSION Duty to Notify Because the claim at issue is limited to statutory interpretation, statutory notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is 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). Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of her claim. Analysis Where a veteran's death is not determined to be service- connected, a surviving spouse may still be entitled to benefits. Under 38 U.S.C.A. § 1318(a) (West 2002), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of the veteran's own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran's death based on clear and unmistakable error) was not in receipt of but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to the appellant, the Veteran's service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death or continuously rated totally disabling for at least five years from the date of the veteran's separation from service. The total rating may be schedular or based on unemployability. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22 (2007); Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). The appellant contends that she is entitled to DIC benefits under the provisions of 38 U.S.C.A. § 1318. At the time of the Veteran's death, he was service-connected for post-traumatic stress disorder (PTSD) (rated 50 percent); frostbite of the right foot (rated 20 percent); frostbite of the left foot (rated 20 percent); bilateral hearing loss (rated 20 percent); tinnitus (rated 10 percent); a left inguinal hernia (rated 0 percent); an appendectomy scar (rated 0 percent); a burn scar of the left index finger (rated 0 percent); a burn scar of the right wrist (rated 0 percent); and for burn scars of the face and hips (rated 0 percent). The combined disability rating was 80 percent from August 27, 2003. The Veteran had also been assigned a total disability rating based on individual unemployability (TDIU rating), effective August 27, 2003, or for over four years. Although the appellant's claim for entitlement to service connection for the cause of the Veteran's death has not yet been decided, as the Veteran's service-connected disabilities were not continuously rated totally disabling for 10 or more years immediately preceding death, or continuously rated totally disabling for at least five years from the date of his separation from service, the "totally disabling" requirement under 38 U.S.C.A. § 1318 and 38 C.F.R. § 3.22 has not been met. Those circumstances will not change after a decision has been made on the claim for entitlement to service connection for the cause of the Veteran's death. Additionally, the Veteran was not a former prisoner of war who died after September 30, 1999. Accordingly, although the Board is sympathetic to the appellant in this matter, entitlement to DIC under 38 U.S.C.A. § 1318 is not warranted. Cacalda v. Brown, 9 Vet. App. 261 (1996) (where law is dispositive, not evidence, the appeal should be terminated for lack of legal merit or entitlement); Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is denied. REMAND The Veteran died in November 2007. The death certificate lists the immediate cause of death as hypoxic respiratory failure due to or a consequence of pulmonary fibrosis and pneumonia. Hyponatremia and chronic anemia were listed as significant conditions contributing to death, but not resulting in the underlying cause of death. The appellant essentially contends that the pulmonary fibrosis and pneumonia that caused the Veteran's death began during his period of service. She indicates that the Veteran was noted to have calcified hilar nodules and calcification in the parenchyma during service which could have been precursors to the pulmonary fibrosis and pneumonia that caused his death. The appellant also contends that the Veteran's exposure to Agent Orange while serving in Vietnam, as well as his documented cold exposure, may have led to the pulmonary fibrosis and pneumonia that caused his death. The appellant further states that the Veteran had scars of the lungs due to the burns he suffered during service. During the Veteran's lifetime, service connection was established for (PTSD) (rated 50 percent); frostbite of the right foot (rated 20 percent); frostbite of the left foot (rated 20 percent); bilateral hearing loss (rated 20 percent); tinnitus (rated 10 percent); a left inguinal hernia (rated 0 percent); an appendectomy scar (rated 0 percent); a burn scar of the left index finger (rated 0 percent); a burn scar of the right wrist (rated 0 percent); and for burn scars of the face and hips (rated 0 percent). The Veteran's service treatment records for his first period of service from January 1941 to June 1945 do not show treatment for any respiratory disorders, including pulmonary fibrosis and pneumonia, and do not show treatment for hyponatremia and anemia. Such records do show treatment for burns of the hands, hips, and face. The Veteran's service treatment records for his second period of service from August 1951 to May 1968 do show treatment for respiratory problems. Such records do not show treatment for hyponatremia and for anemia. A September 1955 treatment entry noted that the Veteran was seen for a cough that produced mucoid sputum. The impression was bronchitis. A July 1957 radiological report, as to the Veteran's chest, indicated that there were calcified hilar nodules, as well as calcification in the parenchyma. An August 1959 treatment entry noted that the Veteran complained of a sharp pain in the chest that began that afternoon. He reported that he was working on an engine and experienced a sudden onset of right upper chest pain. The Veteran stated that he did not have shortness of breath, but that the pain was worse on inspiration. The impression was pleurisy. An August 1962 radiological report, as to the Veteran's chest, related that he had a normal cardiac shadow and bony thorax. The examiner reported that there was a solitary 5 mm calcified nodule in the right mid lobe of the lung, but that the evaluation was otherwise normal. A December 1967 treatment entry noted that the Veteran complained of head congestion and a productive cough. The impression was an upper respiratory infection. Post-service treatment records show that the Veteran was treated for variously diagnosed respiratory disorders, including pulmonary fibrosis, chronic obstructive pulmonary disease (COPD), scars on the lungs, and for pneumonia. A December 2004 statement from a physician at Brooke Army Medical Center in Fort Sam Houston, Texas, indicated that the Veteran was followed and managed conservatively in the pulmonary clinic for idiopathic pulmonary fibrosis. The physician stated that, although the etiology of idiopathic pulmonary fibrosis was not clear as to the definitive cause, environmental toxins and chemical exposure have been associated as a potential risk factor. The physician said that the Veteran's reported exposure to Agent Orange may have been a contributing factor to his idiopathic pulmonary fibrosis development. A May 2009 report from a VA physician indicated that the Veteran's claim file was reviewed. The physician reported that the Veteran's cause of death was pulmonary fibrosis, pneumonia, and respiratory failure. The physician opined that it was less likely as not that the Veteran's pulmonary fibrosis was caused by or a result of exposure to Agent Orange. The physician stated that there was nothing in the literature to say that pulmonary fibrosis was due to Agent Orange. The physician reported that the Veteran had pulmonary fibrosis several years after his discharge. The physician also indicated that it was less likely as not that the Veteran's pulmonary fibrosis was due to service-connected burn scars. The physician remarked that there was nothing in the literature that said that burn scars caused pulmonary fibrosis. The VA physician did not specifically address the Veteran's treatment during his second period of service from August 1951 to May 1968 for respiratory disorders including pleurisy and bronchitis. Additionally, the physician indicated that the Veteran's pulmonary fibrosis was not due to service-connected burn scars. The appellant has actually alleged that the Veteran's pulmonary fibrosis and pneumonia that caused his death were the result of respiratory problems during service, including scaring in the lungs, as well as calcified hilar nodules and calcification in the parenchyma in his lungs. The physician also did not provide much in the way of rationales for his opinions that the Veteran's pulmonary fibrosis was not due to exposure to Agent Orange or to service-connected burn scars. Further, the physician did not address the statement from a physician at Brook Army Medical Center in Fort Sam Houston, Texas, that the Veteran's reported exposure to Agent Orange may have been a contributing factor to his development of idiopathic pulmonary fibrosis development. Therefore, the Board finds that there is no medical opinion of record, provided after a review of the entire claim file, which addresses whether the hypoxic respiratory failure, pulmonary fibrosis, pneumonia, hyponatremia, and chronic anemia that contributed to the Veteran's death, were etiologically related to any aspect of his periods of service, to include Agent Orange exposure, or to any service-connected disabilities. A medical opinion must be obtained on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the Veteran's death certificate indicates that he died at the Brooke Army Medical Center in Fort Sam Houston, Texas. The Veteran's terminal records from that facility have not been associated with the claims file. As there may be treatment records pertinent to the appellant's claim, an attempt must be made to obtain those records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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 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. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. In the instant case, the VCAA letter provided to the appellant did not comply with the requirements indicated in Hupp v. Nicholson, 21 Vet. App. 342 (2007). Accordingly, the case is REMANDED for the following: 1. Send the appellant a VCAA notice that includes an explanation as to the information or evidence needed to establish a claim for service connection for the cause of the Veteran's death, as outlined by the Court in Hupp. 2. Obtain the Veteran's medical records, dated immediately prior to his death in November 2007 (his terminal hospital records), from the Brooke Army Medical Center in Fort Sam Houston, Texas. 3. Make arrangements for the entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) to be reviewed for a medical opinion on the issue of service connection for the cause of the Veteran's death. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Based on a review of historical records and generally accepted medical principles, the examiner must provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's hypoxic respiratory failure due to or a consequence of pulmonary fibrosis and pneumonia, and hyponatremia and chronic anemia, were etiologically related to any aspect of his periods of service, to include any Agent Orange exposure, as well as treatment for respiratory disorders, including pleurisy and bronchitis, and diagnosed calcified hilar nodules and calcification in the parenchyma, during his second period of service from August 1951 to May 1968. The examiner must specifically comment on the December 2004 statement from a physician at Brook Army Medical Center in Fort Sam Houston, Texas, that the Veteran's reported exposure to Agent Orange may have been a contributing factor to his development of idiopathic pulmonary fibrosis development. The examiner must also opine whether it is at least as likely as not (a 50 percent or greater possibility) that any service-connected disabilities caused or contributed to his death. The report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs