Citation Nr: 1331772 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-25 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for malaria, for accrued benefits purposes. 2. Entitlement to service connection for congestive heart failure, to include as secondary to malaria, for accrued benefits purposes. 3. Entitlement to service connection for hypertension, for accrued benefits purposes. 4. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from February 1943 to February 1946. The Veteran died in September 2007. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Appellant, the Veteran's widow, service connection for the cause of the Veteran's death. This rating decision also continued previous denials of service connection for malaria, congestive heart failure, and hypertension. The appellant responded with a timely Notice of Disagreement and subsequently perfected her appeal upon the filing of a timely substantive appeal. The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title...." As above, in this case, the Veteran died in September 2007. VA received notice from the appellant in September 2007 that she was seeking DIC as well as service connection for the cause of the Veteran's death. As the Veteran in this case died prior to October 10, 2008, the Board finds that the provisions pertaining to substitution are inapplicable in this case. The appellant indicated on her July 2009 VA Form 9 that she wished to testify at a Board hearing. A Travel Board hearing was scheduled for March 2013 and the appellant was provided notice of this hearing in January 2013. However, the appellant failed to report to the scheduled hearing and failed to explain her absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. This matter was previously before the Board in June 2013, at which time the Board remanded the issues on appeal for additional development. The Board recharacterized the issues of entitlement to service connection for malaria, congestive heart failure, and hypertension as claims for accrued benefits. Also noted in the June 2013 Board Remand, because the RO had not issued an appropriate initial determination for the raised issue of entitlement to death pension or considered entitlement to DIC under 38 U.S.C.A. § 1318, the Board referred the matters to the RO/AMC for appropriate action. According to an August 2013 memorandum, the AMC noted that these issues require immediate attention by the RO. Therefore, it appears these matters have been referred to the RO for initial adjudication. 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's malaria was not causally or etiologically due to service. 2. The Veteran's congestive heart failure was not causally or etiologically due to service, or caused or aggravated by a service-connected disability, and did not manifest within one year of separation from active service. 3. The Veteran's hypertension was not causally or etiologically due to service, or caused or aggravated by a service-connected disability, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. Service connection for malaria, for accrued benefits purposes, is not established. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2013). 2. Service connection for congestive heart failure, to include as secondary to malaria, for accrued benefits purposes, is not established. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2013). 3. Service connection for hypertension, for accrued benefits purposes, is not established. 38 U.S.C.A. §§ 1110, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Board finds that the content requirements of a duty to assist notice have been fully satisfied. A letter from the RO dated in July 2013 provided the appellant with an explanation of the type of evidence necessary to substantiate her claims, and an explanation of what evidence was to be provided by her and what evidence the VA would attempt to obtain on her behalf. Importantly, accrued benefits claims are decided based on the evidence of record when the Veteran died. 38 C.F.R. § 3.1000(d)(4). Under 38 C.F.R. § 3.1000, "there may be circumstances-perhaps rare but certainly possible-where documents are in the Secretary's possession at the date of the veteran's death (and therefore are considered to be in the file at the date of death), yet have never been presented to the Agency decisionmakers." Quattlebaum v. Shinseki, 25 Vet.App. 171, 175 (2012). In this case, the claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, his certificate of death, and other pertinent information existing at the time of the Veteran's death. There is no indication of evidence existing at the time of his death that was constructively of record but un associated with the claims file. Accordingly, the Board finds that VA's notice and assistance obligations are met, and the appellant is not prejudiced by the Board's proceeding with appellate review. As briefly discussed in the Introduction, in June 2013, the Board remanded these claims for additional development. The RO was instructed to provide the appellant with a Hupp-compliant notice letter. The appellant was sent a Hupp-compliant letter in July 2013. Additionally, the Board directed that the Supplemental Statement of the Case (SSOC) provided to the appellant should include the regulations regarding accrued benefits. This was accomplished in the August 2013 SSOC. That development having been completed, the Board is satisfied that there has been substantial compliance with prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). II. Accrued Benefits Claims/Service Connection The appellant seeks entitlement to service connection for malaria, congestive heart failure, and hypertension, for accrued benefits purposes. In Jones v. West, the U.S. 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." Jones, 136 F.3d 1296, 1299 (Fed. Cir. 1998). At the time of his death, the Veteran had claims pending for entitlement to service connection for malaria, congestive heart failure, and hypertension. In this regard, a deceased Veteran's claim remains pending for accrued benefits purposes when he dies after a rating decision but before the expiration of the one-year period for filing a Notice of Disagreement. See Taylor v. Nicholson, 21 Vet. App. 126 (2007). By rating decision dated in April 2007, the RO denied the Veteran's claim for service connection for malaria, congestive heart failure, and hypertension. However, the Veteran subsequently died in September 2007, during the one-year period following the April 2007 rating decision. The appellant, who is the Veteran's surviving spouse, filed her claim for Dependency and Indemnity Compensation (DIC) benefits within the one year after the Veteran's death and within the one-year period following the April 2007 rating decision. Thus, the accrued benefits claims are derivative of the Veteran's claims, and the appellant takes the Veteran's claims as they stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996); Jones v. West, 146 F.3d 1296 (Fed. Cir. 1998). The outcome of an accrued benefits claim hinges on the application of the law to evidence that was in the file at the time of the Veteran's death. See 38 C.F.R. § 3.1000(a). 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 folder on or before the date of death. 38 C.F.R. § 3.1000(d); Castellano v. Shinseki, 25 Vet. App. 146, 156 (2011). Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West); 38 C.F.R. § 3.303(a) (2013). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 U.S.C.A. § 1154(b), where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation." Pesumptive service connection for a chronic disease listed in 38 C.F.R. § 3.309(a), such as cardiovascular-renal disease, including hypertension, and may also be established when the disease has become manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307(a)(3) (2013). Under 38 C.F.R. § 3.309, the term "cardiovascular-renal disease" applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the one-year period will be given the same benefit of service connection as any of the chronic diseases listed. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The Federal Circuit, however, clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, in addition to the regulations cited above, secondary service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. As the changes to this section are not liberalizing and the Veteran, prior to his death, filed his claims in April 2006, the amendment is not applicable to the current claims. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). A. Malaria The appellant seeks entitlement to service connection for malaria for accrued benefits purposes. Before his death, the Veteran asserted he contracted malaria during service and continued to experience residual symptoms post-service. The Veteran stated he contracted malaria while stationed in the Philippines in 1945. See April 2007 VA Form 21-4138. Service records were reviewed. The Veteran's service records fail to reflect treatment or a diagnosis of malaria. The Veteran's May 1942 induction examination did not note any history of malaria. A July 1945 Physical Condition report indicated that the Veteran had no history of malaria. Additionally, the Veteran reported in July 1945 that he had fever, malaise, and headaches. It was again noted that a malaria smear was negative. A July 1945 Chief Complaint - Condition on Admission - Previous, Personal History form indicated that the Veteran had Dengue fever in 1944, but stated, "no malaria." Post-service records were also reviewed. The Board notes that a statement submitted by the Veteran's treating physician in August 2007 indicates that the Veteran had malaria in the "remote past." See August 2007 letter. It is not clear whether the physician treated the Veteran for malaria, or whether it is simply a past medical history as related to the physician by the Veteran. The Veteran asserted that his physician explained to his wife and niece how to care for him when he had malaria bouts, which consisted of an extremely high fever, shakes, and a feeling of "freezing." See May 2007 statement. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, determining the whether such symptoms are manifestations of a disease like malaria is not a simple disorder where the question of diagnosis or etiology does not require specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("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."). Rather, the Board finds that malaria is more complex in nature than, for example, a fracture to a leg or other extremity and is not capable of lay observation or diagnosis. Thus, even assuming the credibility of such evidence, his statements alone of a past history of malaria are not competent evidence to establish in-service incurrence or diagnosis of this disability. Even if the Board were to assume that the examiner's history of past malaria was based on competent evidence other than the Veteran's statements, the Board finds this evidence is outweighed by the contemporaneous records at the time of the Veteran's service. The most probative evidence of record fails to demonstrate that the Veteran was diagnosed or treated for malaria during service or that any current residuals can be related to his time in service. In fact, multiple medical records from service indicate that the Veteran was negative for malaria. There is no evidence of malaria during military service or any symptomatology associated with malaria, other than a high fever in July 1945, when it was demonstrated that a malaria smear was negative. The Board recognizes that the Veteran and the appellant believes the Veteran's disorder was a result of service. However, the record does not reflect that the Veteran or the appellant had the requisite training or expertise to diagnose a disease such as malaria during service and associate any current symptoms to the Veteran's time in service. The record contains no other evidence suggesting an etiological relationship between any current symptoms and his time in service. Importantly, the claim must be decided based on the evidence of record when the Veteran died. 38 C.F.R. § 3.1000(d)(4). Because the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The appellant's claim of entitlement to service connection for malaria for accrued benefits purposes must be denied. B. Congestive Heart Failure and Hypertension The appellant seeks entitlement to service connection for congestive heart failure, to include as secondary to malaria, and hypertension for accrued benefits purposes. As an initial matter, the Board notes that service connection for malaria has been denied; therefore, entitlement to service connection for heart failure cannot be granted as secondary to malaria, as a matter of law. The Board notes that the Veteran appears to link his hypertension with his service-connected skin disorder. See August 2007 statement. However, the Veteran is not competent to provide an opinion to this effect because the etiology of this disease is a complex medical question not capable of lay observation, and the evidence of record otherwise does not suggest an etiological or aggravation-based relationship between the two disorders so as to establish entitlement under this theory. Turning to the other laws and regulations governing service connection on a direct or presumptive basis, and after carefully reviewing the evidence of record, the Board finds that service connection is not warranted for chronic heart failure or hypertension. Rather, the probative evidence shows that the Veteran was not diagnosed or treated for a heart disorder or hypertension during service, within a year after separation from service, or that any post-service heart disorder or hypertension can be related to his time in service or to any service-connected disability. The Veteran's service records fail to reflect treatment or a diagnosis of any heart problems or hypertension. The Veteran's May 1942 induction examination did not note any heart disorders or hypertension, and there were no complaints, symptoms, or diagnoses during service. Post-service records were also reviewed. With regard to his claim for congestive heart failure, private records indicate that the Veteran had a cardiac arrest in 1997, status post three-vessel coronary artery bypass surgery in April 1997, and a percutaneous transluminal coronary angioplasty (PTCA) in March 2001. See March 2006 treatment note. The Veteran was also diagnosed with ischemic cardiomyopathy and had a history of congestive heart failure hospitalizations. In March 2006, he was assessed with a history of congestive heart failure in 2003. With regard to hypertension, private records indicate that the Veteran had a long history of hypertension, which resulted in significant cardiovascular events. See August 2007 physician statement. A treatment note from January 1995 reported the Veteran's blood pressure as 170/80 and a day later, it was 140/72. This evidence documenting the Veteran's history of hypertension and heart problems fails to show an in-service incurrence or etiology, manifestation to a degree of 10 percent within a year of discharge, or continuing symptoms since service so as to warrant service connection. Again, the claim must be decided based on the evidence of record when the Veteran died. 38 C.F.R. § 3.1000(d)(4). Rather, it appears that symptoms and complaints relevant to these claims were not present until many years after service separation, and well after the one-year time period following his separation from service in February 1946. The Board recognizes that the Veteran and the appellant stated that the Veteran's disorder was a result of service. However, the record does not reflect that the Veteran or the appellant had the requisite training or expertise to opine on the etiology of a heart disorder or hypertension. While a lay person is deemed competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the underlying diagnoses and etiologies of the Veteran's heart disorder and hypertension fall outside the realm of the common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, there is an insufficient showing of probative evidence suggesting an etiological relationship between any post-service heart disorder or hypertension and his time in service or any service-connected disability. Because the preponderance of the evidence is against the claims, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The appellant's claims of entitlement to service connection for the Veteran's congestive heart failure and hypertension for accrued benefits purposes must be denied. ORDER Entitlement to service connection for malaria, for accrued benefits purposes, is denied. Entitlement to service connection for congestive heart failure, to include as secondary to malaria, for accrued benefits purposes, is denied. Entitlement to service connection for hypertension, for accrued benefits purposes, is denied. REMAND The Federal Circuit has provided that 38 U.S.C.A. § 5103A(a), and not (d), applies to DIC claims. Section 5103A(a) indicates that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Section 5103A(a) "only excuses . . . VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008) (quoting 38 U.S.C.A. § 5103A(a)) (citations omitted). After carefully considering the evidence of record, the Board finds that an additional VA medical opinion is needed to ascertain the relationship, if any, between the Veteran's death and his service. The appellant seeks entitlement to service connection for the cause of the Veteran's death. The Board notes that the Veteran's death certificate indicates the Veteran died from cardiac arrest, with underlying causes of cerebral vascular accident (CVA), embolism of the right middle cerebral artery and atrial fibrillation. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. See 38 C.F.R. § 3.312. The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). As explained above, service treatment records reflect a diagnosis of Dengue Fever in service. Moreover, as noted above, the Veteran complained of continuing post-service symptoms of bouts of an extremely high fever, shakes, and a feeling of "freezing." The Board notes that "dengue" is defined as an acute, self-limiting disease, typically lasting five to seven days, characterized by fever, prostration, severe muscle pains, headache, rash, lymphadenopathy, and leucopenia. Dorland's Illustrated Medical Dictionary 493, 31st Ed. (2007). However, there can be serious sequel to regular dengue. Id. (discussing hemorrhagic dengue). To date, no medical opinion has been obtained regarding whether the Dengue Fever contracted during service contributed to the Veteran's cause of death. In an effort to give all due assistance to this appellant, the Board finds that a VA opinion is necessary regarding the nature and etiology of the Veteran's death to his in-service diagnosis of Dengue Fever. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Arrange for the Veteran's claims folder to be reviewed by an appropriate VA examiner. After review, the examiner must opine as to whether it is at least as likely as not (i.e., probability of 50 percent), more likely than not (i.e. probability of more than 50 percent) or less likely than not (i.e. probability of less than 50 percent) that the Dengue Fever contracted during service caused the death of the Veteran or contributed substantially or materially, combined, aided or lent assistance to cause the death of the Veteran. The rationale for any opinion expressed should be provided in a legible report. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the appellant's claim for entitlement to service connection for the cause of the Veteran's death should be readjudicated. If the claim remains denied, the appellant and her representative should be issued a SSOC, and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs