Citation Nr: 1329226 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-43 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for cause of the Veteran's death. 2. Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure, for accrued benefits purposes. 3. Entitlement to service connection for left leg amputation, to include as due to herbicide exposure, for accrued benefits purposes. 4. Entitlement to service connection for depression, to include as due to herbicide exposure, for accrued benefits purposes. 5. Entitlement to service connection for hypertension, to include as due to herbicide exposure, for accrued benefits purposes. WITNESSES AT HEARING ON APPEAL Appellant, Appellant's daughter, and friend ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty January 1975 to September 1977. The Veteran died in October 2009 and the appellant is the Veteran's spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied service connection for cause of the Veteran's death and accrued benefits. In March 2012, the appellant testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The Board acknowledges that the RO determined that the appellant met the basic eligibility for substitution as the spouse in this case. Unfortunately, substitution is not applicable in this case because there was no pending appeal at the time of the Veteran's death in October 2009. The Veteran received notice of the RO's decision in July 2009 but did not file a notice of disagreement prior to his death. Rather, the appellant filed an application for dependency and indemnity (DIC) benefits, to include accrued benefits, in October 2009. The issue of service connection for cause of the Veteran's death is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACTS 1. Claims for entitlement to service connection for diabetes mellitus, Type II, left leg amputation, depression and hypertension were pending at the time of the Veteran's death in October 2009. 2. The appellant filed a claim for accrued benefits within a year of the Veteran's death. 3. Evidence in the claims file at the time of death did not demonstrate that the Veteran served in Vietnam or was otherwise exposed to Agent Orange. 4. Evidence in the claims file at the time of death did not indicate that diabetes mellitus manifested in service, within the one year presumptive period or for many years thereafter, or that diabetes mellitus was related to service, including Agent Orange exposure. 5. Evidence in the claims file at the time of death did not indicate that left leg amputation manifested in service, or was related to service, including Agent Orange exposure. 6. Evidence in the claims file at the time of death did not indicate that depression manifested in service, or was related to service, including Agent Orange exposure. 7. Evidence in the claims file at the time of death did not indicate that hypertension manifested in service, within the one year presumptive period or for many years thereafter, or was related to service, including Agent Orange exposure. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, Type II, for the purpose of accrued benefits, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107, 5121; (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). 2. Service connection for left leg amputation, for the purpose of accrued benefits, is not warranted. 38 U.S.C.A. §§ 1110 , 1112, 1113, 5107, 5121; (West 2002); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309, 3.1000 (2012). 3. Service connection for depression, for the purpose of accrued benefits, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107, 5121; (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). 4. Service connection for hypertension, for the purpose of accrued benefits, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107, 5121; (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist In correspondence dated in January 2010, the agency of original jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the notice informed the appellant of information and evidence necessary to substantiate the claim for service connection cause of death and accrued benefits and of the relative burdens of VA and the appellant, relating the information and evidence that VA would seek to provide and that which she was expected to provide. VA has done everything reasonably possible to assist the appellant with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Regarding the claims for accrued benefits, the Board notes that the law requires that accrued benefit claims be adjudicated on the basis of the evidence that was of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(d)(4). Thus, there is no prejudice to the claimant in adjudication of the accrued benefits claim. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that no further RO action, prior to appellate consideration of any of these claims, is required. The Board acknowledges that further development is being made as explained in the remand below in conjunction with the appellant's claim for service connection for the cause of the Veteran's death. Such a claim is different from an accrued benefit claim. The main difference is that accrued benefits are by law adjudicated on the basis of the evidence already of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(d)(4) explains that evidence in the file at date of death means in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder or before the date of death. Records that are constructively in the possession of VA include records located at the VA regional offices, VA insurance centers, VA medical centers, VA outpatient clinics, Vet Centers, and the Records Management Center. See M21-1MR, Part VIII, subpart 1 Chapter 4, Section cc. The Board acknowledges the case of Hayes v. Brown, 4 Vet. App. 353 (1993), in which the Court of Appeals for Veterans Claims quotes a prior version of the above cited VA manual provision that indicates generally that "service department records" are constructively considered evidence in the file at the date of death. However, the Board notes that the manual has been revised to be more specific, particularly referencing records at VA's Records Management Center (RMC), as opposed to a general reference to service department records. Notably, in 1992, the RMC began receiving, storing, and providing service treatment records received directly from the Department of Defense upon a servicemember's separation. The Veteran in this case separated from service in 1977, which is well before VA's RMC began to take immediate possession of such records. His records were sent by the Department of Defense to be stored at the National Personnel Records Center, a division under the control of the National Archives, rather than VA. Therefore, there is no logical reason for VA to be held as in constructive possession of service department records that it would have had no control over. During the appellant's March 2012 hearing before the undersigned, she testified that the Veteran may have had active military service prior to January 1975. No additional attempts to verify such additional service have been made to date. However, because in the case of accrued benefits, the evidence at issue is only that already in the file as of the date of death, and as those records are not constructively in the possession of VA as explained above, the Board finds that the duty to assist does not require seeking this evidence for the issues decided herein. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims for entitlement to service connection for diabetes mellitus, Type II, left leg amputation, depression and hypertension, each for purposes of accrued benefits, are thus ready to be considered on the merits. II. Entitlement to service connection for diabetes mellitus, Type II, left leg amputation, depression and hypertension. Preliminary Matter The law and regulations governing claims for accrued benefits provide that, upon the death of a veteran, a survivor claiming entitlement may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000 (2012); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4) (2012). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) [a consequence of the derivative nature of the surviving spouse's entitlement to a Veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application]. The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2012). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d) (2012); see also 38 C.F.R. §§ 20.1103, 20.1104 (2012). Here, the evidence of record shows that the Veteran had a claim pending at the time of his death. The Veteran filed a claim for service connection for diabetes mellitus, Type II, amputation of the left leg, depression and hypertension in April 2009. The RO denied the Veteran's claims in a July 2009 decision. The Veteran received notice of this decision the same month. The Veteran died in October 2009. At the time of his death, one year had not yet expired from the time the notice of the July 2009 disallowance had been sent to the Veteran. Therefore, it was not yet final. The appellant filed her claim for accrued benefits in October 2009, within a year of the Veteran's death. Consequently, the appellant has met the threshold requirements of these claims for purposes of accrued benefits and the Board will address each on the merits. As noted above, the Board can only consider evidence in the claims file or constructively in VA's possession at the time of death. See Ralston, 13 Vet. App. at 113. Service Connection for diabetes mellitus, Type II, left leg amputation, depression and hypertension As an initial matter, the Board notes that, the Veteran does not appear to have engaged in combat while in service. Furthermore, the appellant does not claim that the Veteran's disorders were a result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. 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 competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus and hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a). An alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). The Federal Circuit has held that this theory applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran did not claim entitlement to service connection for any of his claimed disorders on any of the above bases, however. Rather, he claimed that his disorders were due to his exposure to Agent Orange, which he believed happened in Germany, in his handling of drums containing toxins. Diabetes mellitus is one of the diseases for which Veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). Despite this, there is no evidence in the claims file that the Veteran served in Vietnam. Therefore, the Veteran is not presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116(a)(1)(B)(ii); 38 C.F.R. § 3.307(a)(6)(iii). As for the issues of left leg amputation, depression and hypertension, these disorders are not listed as diseases for which veterans presumed exposed to Agent Orange are entitled to service connection on a presumptive basis. See 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e). Moreover, VA has determined that there is no positive association between exposure to Agent Orange and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630, 27641 (May 20, 2003). This does not end the Board's inquiry, however. The lack of availability of service connection on a presumptive basis for a particular disease does not preclude consideration of entitlement to service connection for that same disease on a direct basis. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d). Moreover, in direct appeals, all filings must be read in a liberal manner, and Board must review all issues reasonably raised from a liberal reading of all documents in the record. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). The Board will therefore consider entitlement to service connection for diabetes mellitus, left leg amputation, depression and hypertension on the other bases noted above. There is no evidence of diabetes mellitus, left leg amputation, depression and hypertension in service. The July 1977 separation examination report indicates that all systems were normal. Treatment records from Siletz Community Health Clinic, which were included in the claims file prior to the Veteran's death, note a current diagnosis of hypertension, diabetes mellitus and an August 2005 amputation of the left leg. The treatment records from Siletz Community Health Clinic show treatment of the Veteran beginning around July 1991. There was no treatment for depression included in these records, and the Veteran noted in his claim that he had never been treated for depression. The evidence thus indicates that the Veteran's diabetes mellitus, left leg amputation, depression and hypertension did not manifest in service, and the Veteran's diabetes mellitus did not begin within the one year presumptive period for chronic diseases. There is also no competent evidence indicating that any of the Veteran's disorders were related to possible Agent Orange exposure or his military service. The RO requested records from the National Personnel Records Center (NPRC) regarding herbicide or any documents showing exposure to herbicides. NPRC responded that there was no record of exposure to herbicide. The only opinions in the record at the time of the Veteran's death were those of the Veteran. In a March 2009 statement, the Veteran opined that his disorders were aggravated by his military service in Germany when he handled many supplies, including toxic material in hazardous drums. While veterans are competent to opine as to some matters of diagnosis and etiology, testimony as to the possible relationship between his claimed disabilities (diabetes mellitus, left leg amputation, hypertension and depression) and Agent Orange exposure or toxic material is testimony as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the statements of the Veteran as to a connection between his claimed disabilities and Agent Orange exposure or toxic material are not competent. For the foregoing reasons, the evidence in the claims file at the time of the Veteran's death did not support a finding of entitlement to service connection for the claimed disabilities. Therefore, entitlement to service connection for diabetes mellitus, Type II, left leg amputation, depression and hypertension, for purposes of accrued benefits, is not warranted. ORDER The appeal to establish entitlement to accrued benefits based on a claim of service connection for diabetes mellitus, to include as secondary to Agent Orange, is denied. The appeal to establish entitlement to accrued benefits based on a claim of service connection for amputated left leg, to include as secondary to Agent Orange, is denied. The appeal to establish entitlement to accrued benefits based on a claim of service connection for depression, to include as secondary to Agent Orange, is denied. The appeal to establish entitlement to accrued benefits based on a claim of service connection for hypertension, to include as secondary to Agent Orange, is denied. REMAND The Board sincerely regrets having to remand the appellant's claim, however, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law. Service Connection for Cause of the Veteran's Death The appellant testified during the March 2012 Board hearing, that the Veteran served in the Army Corps of Engineers (ACE) for one year before his military service in the Army. She explained that he had a total of four years of active duty, not the three years noted on the RO's July 2009 decision. It is unclear to the Board whether the Veteran served in the ACE as an active duty soldier or as a civilian. Prior to adjudicating the Veteran's claim, VA should search for possible records for active duty military service prior to January 1975 and associate all records with the claims file. The Veteran's personnel records have not been obtained. The appellant testified that the Veteran had service in Vietnam. VA should attempt to obtain the Veteran's personnel records and also inquire as to whether the Veteran had service in Vietnam. In a March 2010 statement, the appellant claimed that the Veteran's exposure to Agent Orange in drums that may have spilled ultimately led to his death. If the newly obtained personnel records and other service records show that the Veteran was indeed stationed in Vietnam during his military service, an opinion should be obtained as to whether the Veteran's died of a presumptive disease. See 38 C.F.R. § 3.307 and § 3.309. Accordingly, the case is REMANDED for the following action: 1. Search for possible records of active duty military service prior to January 1975 and associate all treatment records and personnel records with the claims file. It is noted that the Veteran served in the Army Corps of Engineers for one year before his military service in the Army, though it is unclear whether this was as a civilian. Also obtain service personnel records from the Veteran's verified period of service, from 1975-1977. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. The appellant should also be informed that she can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 2. If newly obtained evidence shows that the Veteran had military service in Vietnam or was exposed to herbicide during active military service, obtain an opinion as to whether it is at least as likely as not that the Veteran's cause of death is due to military service, including herbicide exposure. The physician should provide whether the Veteran died of any presumptive disease under 3.307, including ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable unstable and Prinzmetal's angina) or diabetes mellitus and its complications. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the physician. An explanation for any opinion expressed is required. The physician is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case 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 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). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs