Citation Nr: 1329549 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-13 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES Entitlement to service connection for the cause of the Veteran's death. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Thomas E. Jones, Attorney WITNESSES AT HEARING ON APPEAL The Appellant-widow and Dr. C ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to November 1945, including in combat during World War II. He died in October 2008. The appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In June 2011, in support of her claims, she and Dr. C testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the proceeding is of record. The cause-of-death claim requires further development before being decided on appeal, so the Board is remanding this claim to the RO via the Appeals Management Center (AMC). Whereas the Board, instead, is going ahead and deciding the claim for § 1318 DIC. FINDING OF FACT The Veteran was not continuously rated as totally disabled for at least ten years immediately preceding his death. CONCLUSION OF LAW The criteria not met for DIC pursuant to 38 U.S.C.A. § 1318. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.5 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Appellant-widow's claim for DIC under 38 U.S.C.A. § 1318 is being decided based on the law and not the facts of this case. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA's General Counsel has held that the notice and assistance requirements of the Veterans Claims Assistance Act (VCAA) are inapplicable when there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). See also Manning v. Principi, 16 Vet. App. 534 (2002) (VCAA has no effect on appeal limited to interpretation of law). The VCAA does not apply because the issue presented is solely of statutory and regulatory interpretation and/or the claim is barred as a matter of law in that it cannot be substantiated. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). II. Analysis DIC benefits may be paid to a benefits-eligible surviving spouse in cases where a Veteran's death was not service connected, provided the Veteran was in receipt of or entitled to receive compensation at the rate of 100 percent (total rating) due to service-connected disability for a period of ten or more years immediately preceding death. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The Veteran died on October [redacted], 2008. At the time of his death, service connection was in effect for posttraumatic stress disorder (PTSD), residual degenerative arthritis in the thoracolumbar spine, status post blast injury with torso trauma; a scar of the left foot with associated limitation of motion and pain, and residual post-traumatic headaches, status post cerebral concussion. His combined ratings for these disabilities were 10 percent effective November 14, 1995; 60 percent effective October 22, 2003; 70 percent effective November 10, 2004; and 90 percent effective May 24, 2005. He also had been granted a total disability rating, albeit on the basis of individual unemployability (TDIU), effectively since November 10, 2004. So as is apparent from these ratings and the timing of them, he was not in receipt of or found entitled to receive compensation at the 100 percent rate (total rating) due to a service-connected disability or disabilities for at least 10 years immediately preceding his death, meaning since October 1998 since he died in October 2008. Also, service connection for his PTSD became effective only in October 2003, so just five years prior to his death; service connection for his post-traumatic headaches, status post concussion, became effective in November 2004, so just nearly 4 years prior to his death; and service connection for the residual degenerative arthritis in his thoracolumbar spine, while effective as of November 1945, so back to the time of his service, was not rated compensable until November 2004, thus, also not until just nearly 4 years prior to his death. The only service-connected disability that was actually effective and assigned a compensable rating for 10 years or more prior to his death was the scar on his left foot, rated 10-percent disabling, and this scar is not shown nor alleged to have been totally disabling. Similarly, his thoracolumbar spine disability, which as mentioned was rated noncompensable (0-percent disabling) until November 2004, then as 20-percent disabling from November 2004 to May 2005, and finally as 40-percent disabling from May 2005 until his death, also is not shown nor alleged to have been totally disabling since October 1998 (i.e., since 10 years immediately preceding his death), either alone or in combination with his service- connected scar. In short, because the Veteran was not in receipt of or found entitled to receive compensation at the rate of 100 percent (total rating) due to a service-connected disability or disabilities for a period of ten or more years immediately preceding his death, meaning since October 1998, the appellant-widow is not entitled to DIC under 38 U.S.C.A. § 1318 as a matter of law. The appellant-widow cannot establish entitlement to § 1318 DIC merely by showing "hypothetical" entitlement. See Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008). And as the disposition of this claim is based on the law, not the facts of the case, this claim must be denied based on a lack of entitlement under the law. See Sabonis, supra. ORDER The claim for § 1318 DIC is summarily denied. REMAND Regarding the remaining claim of entitlement to service connection for the cause of the Veteran's death, in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical opinion for a DIC claim, so including for cause of death, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court explained that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id. However, in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) the Federal Circuit Court also noted that, in the context of a DIC claim, 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to obtain an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim. The appellant-widow essentially alleges that the Veteran's service-connected residual post-traumatic headaches, status post cerebral concussion, and his service-connected PTSD caused or contributed substantially or materially to his death that was in part from brain syndrome. In a November 2008 medical opinion, a VA physician opined that the Veteran's brain syndrome was not caused by or a result of his residual post-traumatic headaches, status post cerebral concussion. That physician did not address whether the brain syndrome was caused by or the result of the Veteran's PTSD, however. And in a March 2010 medical opinion since submitted, a former friend of the Veteran who is also a retired general surgeon indicated the cause of the Veteran's death was "'brain syndrome', which "'includes PTSD."' He therefore indicated it was his opinion to a degree of medical probability that the Veteran's death was service connected. But this physician friend, Dr. C, who also testified at the appellant-widow's hearing before the Board in June 2011 in further support of her claim, did not provide any explanatory rationale for his conclusion. And this, more than anything else, is where most of the probative value of a medical nexus opinion is derived, not just from review of the relevant evidence in the file. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In Neives, the Court held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service- connected or rating context if it contains only data and conclusions." Id., citing Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). The Court thus concluded in Nieves-Rodriguez that "a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion. It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Neives-Rodriguez, at 304. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. These significant facts may or may not include matters evident from a review of the claims file, given the nature of the issue under consideration." Id. All of this notwithstanding, given this is a doctor, indeed, one who reportedly has prior experience on active duty in the U. S. Army Medical Corps and a four-year residency with the local VA Hospital in Albuquerque, his medical opinion at least tenably suggests the Veteran's service-connected PTSD or perhaps even or also his post-traumatic headaches, status post cerebral concussion, may have caused or contributed substantially or materially to his death in part from brain syndrome. Thus, as the November 2008 VA compensation examiner did not specifically address this potential relationship since he did not additionally consider the PTSD, supplemental comment concerning this additional possibility is needed. Accordingly, this cause-of-death claim is REMANDED for the following additional development and consideration: 1. Obtain a supplemental medical opinion from the November 2008 VA physician, if available, or from another appropriate VA physician concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's PTSD caused or contributed substantially or materially to his death. Prior to rendering this medical opinion, the commenting physician must review the claims file for the pertinent history, including the statements from the appellant-widow, the Veteran's service treatment records (STRs), the October 2008 death certificate, the November 2008 VA medical opinion, the March 2010 statement from the former general surgeon (Dr. C), the VA treatment records, and any other information deemed pertinent. The designated physician should specifically comment on the March 2010 retired general surgeon's conclusion that "brain syndrome (a listed cause of the Veteran's death) includes PTSD." He or she should also more generally discuss the underlying rationale for the opinion provided, if necessary citing to specific evidence in the file supporting conclusion. If any opinion cannot be provided without resorting to mere speculation, then the physician should specifically indicate this but, more importantly, discuss why a response is not possible or feasible. In other words, merely saying she/he cannot comment will not suffice. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (noting it was unclear whether VA examiners were unable to provide a requested definitive medical comment on etiology due to the limits of medical knowledge or, instead, for example, because they needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data). 2. Review this supplemental VA medical opinion to ensure it contains the necessary additional information requested. If not, take appropriate corrective action. 38 C.F.R. § 4.2. 3. Also give Dr. C, who provided the supporting March 2010 affidavit, opportunity to supplement his opinion with explanatory rationale. 4. Then readjudicate this cause-of-death claim in light of this and all other additional evidence, considering all alleged theories of entitlement. If this claim continues to be denied, send the appellant-widow a supplemental statement of the case (SSOC) and give her time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant-widow has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs