Citation Nr: 1329114 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 99-18 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) for the purpose of establishing entitlement to accrued benefits. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran, who died in April 1998, served on active duty from January 1946 to January 1948. The appellant is his surviving spouse. The Board notes at the outset that the claim for service connection for COPD, for purposes of accrued benefits, is the continuation of a claim first submitted by the Veteran prior to his death in 1998. More than 15 years have elapsed since the first rating decision which denied the claim was issued in January 1998, prior to the Veteran's death. In June 1998, the RO denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant disagreed with that decision, and this appeal ensued. The appellant testified at a personal hearing at the RO in 1999. More than 15 years have elapsed since the Veteran's death in 1998, and the claim for service connection for his death has become increasingly factually and procedurally complex. In November 2004, during the course of the appeal, the RO denied the claim of entitlement to service connection for COPD secondary to tobacco use, for the purpose of entitlement to accrued benefits. The appellant also disagreed with that decision, and that issue was added to the appeal. In May 2005, the Board denied the appellant's claim for service connection for the cause of the Veteran's death, and the appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2006, the Court vacated and remanded the Board's 2005 decision. In January 2010, the Board of Veterans' Appeals (Board) affirmed and continued the RO's denial of entitlement to service connection for the cause of the Veteran's death. The Board remanded for further development the potential issue of entitlement to service connection for COPD for the purpose of establishing entitlement to accrued benefits. In April 2011, while the case was pending before the Court, the appellant perfected her appeal with respect to the issue of entitlement to service connection for COPD for the purpose of establishing entitlement to accrued benefits. Thereafter, the case was returned to the Board for further appellate consideration. In August 2011, the Court vacated the Board's January 2010 decision denying entitlement to service connection for the cause of the Veteran's death. The Court remanded the matter to the Board for readjudication consistent with the Court's decision, including on the basis that the two issues were inextricably intertwined. In June 2012, the Board denied both claims on appeal. The appellant again appealed to the Court, and the Court vacated the Board's 2012 decision. The claim 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. VA will notify the appellant if additional action is required on her part. FINDINGS OF FACT 1. The regulations applicable to a claim for accrued benefits at the time of the Veteran's death in 1998 preclude further development of the claim. 2. The only medical opinion of record at the time of the Veteran's death is favorable to the claim. CONCLUSION OF LAW For purposes of entitlement to accrued benefits, the criteria for service connection for COPD are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 U.S.C.A. § 5121 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the Veteran submitted an August 1993 claim for service connection for "breathing problems" due to use of cigarettes. The Veteran was advised by the RO that adjudication of the claim was being deferred because rules and regulations for processing claims based on exposure to smoking were being developed. The Veteran was also advised to submit medical evidence. In October 1997, the Veteran submitted a private medical opinion from JRK, MD. Dr. K's opinion was favorable to the Veteran's claim. In January 1998, the claim was denied. In February 1998, the Veteran disagreed with the denial of the claim. A statement of the case was issued in early April 1998. In late April 1998, the Veteran died. Where a claim has been denied within one year prior to the death of a veteran, the claim has not been finally adjudicated until the expiration of that one year from the date of the decision. As in effect in 1998, at the time of the Veteran's death, the law provided that a qualified survivor, such as the appellant in this case, could continue, to a limited extent, the deceased Veteran's claim by submitting a timely claim for accrued benefits. 38 U.S.C.A. § 5121 (West 1991 & Supp. 1998); Landicho v. Brown, 7 Vet. App. 42 (1994). As in effect in 1998, the law provided that an accrued benefits claim was separate from a claim for service connection filed prior to the Veteran's death, but derivative of the Veteran's initial claim. Thus, the appellant here takes the Veteran's claim as it stood on the date of his death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). In May 1998, the appellant submitted a claim for accrued benefits based on the claim for service connection for COPD. The Board notes, as further explained below, that the appellant's claim was received prior to June 1998, when Congress enacted a statute which, under most circumstances, precludes an award of service connection for a disability due to tobacco use. Accrued benefits are benefits to which the veteran was entitled at the time of his or her death under an existing rating or based on the evidence actually or constructively in the claims file on the date of death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000; Hayes v. Brown, 4 Vet. App. 353 (1993). Accrued benefits are payable to a veteran's surviving spouse, or other qualified claimant, if no surviving spouse exists. At the time the appellant submitted the accrued benefits claim at issue in this case, the relevant language of 38 U.S.C. 5121(a) stated: [P]eriodic monetary benefits ... under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death (hereinafter ... referred to as accrued benefits) and due and unpaid for a period not to exceed two years, shall, upon the death of such individual be paid as follows: accrued benefits were limited to a maximum of two years. The Board notes that the two-year limit on payment of accrued benefits has been removed. However, this amendment applies only to deaths occurring on or after the date of enactment of the revision which removed the time limit, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Since the Veteran died prior to 2003, the revised provision is not applicable. A survivor's recovery of accrued benefits to those benefits accrued in the two years immediately prior to a veteran's death, may be calculated based on any two-year period during the pendency of the claim underlying the accrued benefits claim. Terry v. Principi, 367 F.3d 1291 (Fed. Cir. 2004). There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and a claim for service connection for the cause of death of a veteran, addressed in the Remand appended to this decision. When adjudicating the accrued benefits claims, only the evidence of record at the time of the Veteran's death may be considered. In contrast, as discussed further in the Remand, below, in a claim for service connection for the cause of the Veteran's death, additional development of the record may be undertaken. The substantive rule governing the evidence which may be considered in a claim for accrued benefits filed before May 8, 2000 is the following: a. Evidence in File at Date of Death. Evidence 'in file' includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service department records; (2) Reports of VA hospitalization; (3) Reports of treatment or examinations in VA medical center including those in outpatient treatment folders; (4) Reports of hospitalization, treatment, or examinations authorized by VA[;] and (5) Reports of autopsy made by VA on the date of death. Castellano v. Shinseki, 25 Vet. App. 146, 153-55 (2011) (citing M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992). In this case, the Veteran died in April 1998. The evidence of record at the time of the Veteran's death consisted of statements submitted by the Veteran in support of his claim, the Veteran's service treatment records, and a medical statement from JRK, MD. Dr. K's statement is favorable to the Veteran's claim. In addition to that evidence, VA may consider all reports of VA hospitalization and treatment, even though those reports were not physically located within the Veteran's claims file at the time of his death. VA treatment records have been associated with the claims file. However, those VA records include no records of the Veteran's treatment in 1998, since the treatment he received in the months prior to his death was not at a VA facility. The VA treatment records available are primarily from the period prior to 1993. There is no opinion as to the etiology of the Veteran's COPD. The Board further notes that, after the Veteran submitted the claim for service connection for COPD, the law governing the circumstances under which service connection may be granted for disorders resulting from use of tobacco products was dramatically changed. For a claim received by VA after June 9, 1998, service connection is expressly precluded for any disability related to chronic tobacco use (smoking), except under limited circumstances not applicable to this case. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. However, this statute and regulation are not applicable to the accrued benefits claim at issue here, as the appellant submitted her claim in May 1998, about two weeks before the preclusion of service connection for diseases due to tobacco use. VA adjudicators are not permitted to render medical determinations. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Any determination by the Board that facts recited in the VA treatment records are unfavorable to the appellant's claim for accrued benefits for COPD would require some type of medical judgment, which is impermissible, or reliance on a regulation as a substitute for the requirement that the Board rely on independent medical evidence. Colvin, 1 Vet. App. at 175. Reliance on a regulation, without independent medical opinion explaining such reliance, is also precluded. The discussion and findings in the Court's Orders thus far in this 15 years of the pendency of this claim, and the discussion in the November 2012 Joint Motion to Vacate and Remand, incorporated into the Court's December 2012 Order, constrain VA to make a decision based on the Veteran's statements and the 1997 favorable medical opinion. Given that limitation on the evidence, the preponderance of the evidence is favorable to the appellant's claim for accrued benefits for a two-year period, as allowed by law at the time at the time of the Veteran's death in 1998 based on the Veteran's claim for service connection for COPD. The appeal for accrued benefits, as allowed under the law in effect at the time of the Veteran's death in 1998, is granted. ORDER The appeal for accrued benefits, for the two-year period allowed at the time of the Veteran's death in 1998, for service connection for COPD, is granted, subject to controlling regulation applicable to the payment of monetary benefits; the appeal is granted to this extent only. REMAND In a December 2012 Order, which incorporates a November 2012 Joint Motion to Vacate and Remand, the Court directed that more complete reasons and bases be provided for the determination that the cause of the Veteran's death was not service connected. The evidence which must be considered in adjudicating the claim for service connection for the cause of the Veteran's death is not limited to the evidence of record or presumptively of record at the time of the Veteran's death. Rather, all evidence of record, including the evidence and opinions developed in the 15 years since the Veteran's death, must be considered. In addition, since service connection has been granted for COPD, for accrued benefits purposes, an updated opinion must be obtained to take that award into consideration. Before the claim is readjudicated, additional development of the evidence in this case should be conducted. In particular, only a portion of the records of the Veteran's final hospitalization at Memorial Hospital, in April 1998, is of record. There are no physician notes or discharge summary, and diagnostic testing results are incomplete. At least one medical opinion of record notes that it is speculative to determine the Veteran's cause of death without this information. If no additional records are available from Memorial Hospital, the appellant should be asked to authorize the Veteran's private physicians to release any information they may have from the Veteran's final hospitalization. Although records may not be available due to the length of time the appeal has been pending, an attempt to obtain the records should be made. The Board notes that one of the Veteran's private physicians, DW, MD, provided a 1999 opinion. However, the Board is unable to locate treatment notes from Dr. W. The appellant should be asked to authorize release of records from Dr. W., if any are still available. Although records may not be available due to the length of time the appeal has been pending, an attempt to obtain the records should be made. No other inpatient records dated in 1997 or 1998 are associated with the claims file, although it appears that the Veteran was hospitalized in 1997 and in February 1998. Although records may not be available due to the length of time the appeal has been pending, an attempt to obtain the records should be made. After all available records have been associated with the claims file, a reviewer should consider all evidence of record, including the VA and private treatment records and opinions, and an opinion as to the cause or causes of the Veteran's death should be obtained. Accordingly, the case is REMANDED for the following action: 1. With appropriate authorizations, request records from Dr. W. In particular, request that Dr. W. search for any records pertaining to the Veteran's hospitalizations in 1997 and 1998 and any records pertaining to his death, in addition to a search for records of her treatment of the Veteran. 2. Request that Dr. JRK search for any records pertaining to the Veteran's hospitalizations in 1997 and 1998 and any records pertaining to the Veteran's death. 3. Ask the appellant to submit or identify any additional records she has or which may be available regarding the Veteran's hospitalizations in 1997 and 1998. Afford the appellant an opportunity to ask Dr. JRK to provide a written explanation of the apparent contradiction between his April 8, 1998 description of the Veteran when the Veteran was hospitalized just prior to his death, when Dr. K. noted that the Veteran had no significant respiratory distress, and the April 1998 death certificate, which states that the Veteran died of septicemia due to diverticulitis, with no other significant contributing condition listed, and the June 1998 medical statement that the Veteran died of "a complication of his underlying pulmonary process." The appellant should submit any such statement obtained from Dr. JRK. 4. Following completion of the above, the claims file, including any additional evidence obtained and associated with the claims file during this Remand, should be provided to a suitably qualified physician for an opinion as to the likelihood of a causal relationship between the Veteran's COPD and his death, as set forth below. Notify the reviewing physician that service connection was not in effect for any disability at the time of the Veteran's death and that service connection for COPD has been granted. Ask the reviewing physician to summarize the Veteran's pertinent medical history, discuss the 1998 private treatment records from Dr. JRK, including an April 8, 1998, private treatment note, discuss the information available regarding the Veteran's final hospitalization and from the Veteran's death certificate, which shows the cause of death as septicemia due to diverticulitis, and summarize the numerous private and VA medical statements and opinions which have been rendered in the 15 years since the Veteran's death. The reviewing physician should be advised that service connection may be granted for the cause of a veteran's death if a service-connected disability was a principal cause of death or contributed substantially or materially to the veteran's death, or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Then, the reviewing physician should address the following question: Is it at least as likely as not (a 50 percent, or higher, likelihood), less than likely, or unlikely, that the Veteran's service-connected COPD (a) was the principal cause of the Veteran's death, or, (b) contributed substantially and materially to the Veteran's death; or, (c) resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death? Rationale should be provided with the requested opinion(s). If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated with a supporting explanation of why this is so. 5. When all directed development has been conducted, readjudicate the claim on appeal. If such action does not resolve the appeal, a supplemental statement of the case should be issued to the appellant and her representative. An appropriate period of time should be allowed for response. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs