Citation Nr: 1336969 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-13 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia 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: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant; Appellant's daughter ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1961 to February 1965 and from December 1966 to August 1980. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) by videoconference from the RO in February 2013. A transcript of the hearing is associated with the claims file. The Virtual VA and Veterans Benefits Management system electronic files do not contain additional evidence relevant to this appeal. The issue of 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 was not a prisoner of war; he received a permanent disability retirement from military service in August 1980. 2. At the time of his death in November 2007, the Veteran was continuously in receipt of compensation for a total disability rating based on individual unemployability effective October 2002. CONCLUSION OF LAW The criteria for Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2013). Generally, upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO did not provide the appellant with notice relevant to the appellant's claim for DIC under the provisions of 38 U.S.C.A. § 1318. However, where the law as mandated by statute, and not the evidence, is dispositive of a veterans benefit claim, the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In this case, there is no reasonable possibility of furthering the claim by additional notice or development. The U.S. Court of Appeals for Veteran Claims has held that needless remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service personnel records showed that the Veteran served as a U.S. Air Force vehicle mechanic and munitions handler with service in Thailand but not in the Republic of Vietnam. The Veteran was not a prisoner of war. The Veteran died in November 2007. In a January 2008 statement and in a July 2009 notice of disagreement, the appellant contended that the Veteran was totally disabled since his discharge from active service in August 1980. Where a veteran's death is determined not to be service connected, a surviving spouse may still be entitled to DIC benefits in certain circumstances. Specifically, under 38 U.S.C. § 1318(a), 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 is a veteran who dies not as the result of the veteran's own willful misconduct and who either was (1) in receipt of compensation, or (2) 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. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. For the purposes of this section, "entitled to receive" means that the veteran filed a claim for disability compensation and the Veteran would have received total disability compensation at the time of death but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime, additional evidence consisting solely of service department records existing but not considered provides a basis for reopening a claim, or at the time of death the veteran had a service-connected disability continuously rated as total for the specified period but was not receiving compensation for certain specified reasons. Id. The service-connected disabilities must have either been rated totally disabling continuously for 10 or more years immediately preceding the veteran's death; continuously rated totally disabling for at least 5 years from the date of the veteran's separation from service; or if the veteran was a former prisoner of war who died after September 30, 1999, rated totally disabling continuously for a period of not less than 1 year immediately preceding death. 38 U.S.C. § 1318. The total rating may be schedular or based on unemployability. See 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22; see also Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 314 F.3d 1373 (Fed.Cir.2003). The Veteran received a permanent disability retirement in August 1980. The Air Force assigned a 40 percent rating for disabilities of the cervical and lumbar spine, hiatal hernia, chronic sinusitis, and dermatitis of the hands. Service treatment records contain several notations by Air Force physicians to the effect that the Veteran was unable to perform even sedentary or light work. In September 1980, the RO granted service connection for these disabilities plus bilateral hearing loss and assigned a 70 percent combined rating, effective the day following discharge from active service. In October 1980, the Veteran disagreed with the assigned rating and reported that he was unable to secure any form of employment. In April 1981, the RO granted a total disability rating based on individual unemployability (TDIU) also effective the day following discharge from active service. In January 1983, the Veteran submitted a statement reporting that he had returned to work from December 1980 until September 1982. During that time he underwent several spinal surgical procedures. In July 1983, the RO evaluated the evidence of record, reduced ratings for the cervical spine and hiatal hernia for a combined rating of 50 percent effective in November 1982, and terminated the TDIU effective August 1981. On appeal in November 1985, the Board granted an increased rating of 40 percent for the cervical spine but denied a TDIU. In May 1989, the RO granted increased ratings of 60 and 20 percent for the cervical and lumbar spine for a combined rating for all disabilities of 70 percent but did not award a TDIU. In August 1992, the RO received the Veteran's claim for a TDIU. The Veteran submitted a statement reporting that he had last worked from January 1981 to November 1983. In November 1992, the RO evaluated new evidence but denied any increased individual ratings and denied a TDIU. The Veteran expressed disagreement and the RO issued a statement of the case in May 1993. In June 1993, the Veteran requested an extension of time to perfect an appeal. He submitted reports of imaging studies of the cervical and lumbar spine obtained in September 1993 that showed a continuation of his spinal symptoms but were cumulative of evidence already considered. In April 1994, the RO considered the additional evidence as part of his claim for increased ratings for the cervical and lumbar spine disabilities but continued to deny increased ratings. The Veteran did not perfect an appeal, and the RO's November 1992 decision became final. In October 2002, the RO received the Veteran's claim for a TDIU. After review of new and material evidence, in December 2002, the RO granted a TDIU, effective in October 2002. At the time of his death in November 2007, the Veteran had the following service connected disabilities: degenerative changes of the cervical spine, rated as 60 percent disabling; degenerative disc disease of the lumbar spine, rated as 20 percent disabling; sinusitis with headaches, rated as 10 percent disabling; hiatal hernia, rated as 10 percent disabling; degenerative arthritis of the bilateral elbows and knees, each rated as 10 percent disabling; and bilateral hearing loss and dermatitis of the hands, rated as noncompensable. The combined rating was 80 percent. In statements in January 2008 and July 2009, the appellant noted that at the time the RO awarded a TDIU in 1981, the Veteran returned to work to support his family. The appellant noted that a VA representative told him that he would still receive a total disability rating if he were later unable to continue to work. Following spinal surgery, the Veteran worked until November 1983, but a total rating was not reestablished. The appellant called attention to the observations by Air Force physicians while on active duty and reported that the Veteran's spinal disabilities only worsened with time. She contended that the Veteran was permanently and totally disabled for greater than ten years. The Board concludes that entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C.A. § 1318 is not warranted. The Veteran was receiving compensation for a total disability based on individual unemployability from October 2002 to the date of his death in November 2007, a period of less than 10 years. As the Veteran was not a former prisoner of war and as his death was several decades after active service, the alternative qualifying periods of time do not apply. The Board recognizes that the Veteran was rated as totally disabled from 1980 to 1983 and acknowledges the appellant's contentions that his disabilities only worsened despite his attempts to work to support his family. However, the issue of a total disability rating was considered by the RO or the Board in 1983, 1985, 1989, and 1992, and the evidence of record at that time did not warrant a TDIU rating. To the extent that the appellant challenges these decisions as erroneous, the legal standing to do so is not available to her as a matter of law. Although the provisions of the law for revision of decisions on the basis of clear and unmistakable error are certainly remedial, they are nonetheless unavailable to survivors concerning a veteran's disability benefits claim. Haines v. West, 154 F.3d 1298, 1301 (Fed.Cir.1998). The Federal Circuit stated that "there is nothing in [38 U.S.C.A. § 5109A ] that provides for another person, even a survivor, to seek correction of a decision on a veteran's claim" and that "a survivor as no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE [clear and unmistakable error]; the survivor is not the disability benefits claimant." Id. As the disposition of this claim is a matter of law, the "benefit of the doubt" rule is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 is denied. REMAND Relevant to the issue of service connection for the cause of the Veteran's death, a remand is necessary to provide adequate notice, to obtain additional relevant evidence, and to obtain an additional medical opinion. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, the notice required by 38 U.S.C.A. § 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The RO provided a notice in February 2008 that did not meet the requirements because it did not provide a statement of the conditions for which the veteran was service connected at the time of his death or an explanation of the evidence necessary to substantiate DIC based on a condition not yet service-connected. Although the appellant's written statements and hearing testimony suggest an actual knowledge of the service-connected disabilities and the criteria for service connection, this remand is an opportunity to provide an adequate notice. At the February 2013 Board hearing, the appellant stated that there were two conflicting death certificates of record for the Veteran. The file contains an unsigned "Hospital Restraint/Seclusion Death Report Worksheet" dated November 15, 2007 that lists the cause of death as cardiac arrest. The only State of Georgia certificate in the file was signed and issued by the Veteran's attending physician on December 7, 2007 and lists the cause of death as acute respiratory failure due to chronic obstructive pulmonary disease with a contributing cause of sepsis. At the Board hearing, the appellant stated that the official cause of death was an acute myocardial infarction. Records of hospital care immediately preceding death showed that the Veteran was experiencing symptoms of respiratory distress and atrial fibrillation. He experienced a cardiac arrest but was resuscitated approximately 12 hours prior to the time of his death. In a November 15, 2007 discharge summary, the attending physician listed final diagnoses as cardiorespiratory failure, acute myocardial infarction, chronic obstructive pulmonary disease, acute renal failure, and gram-negative shock and sepsis. As it is not clear why this physician did not list the cardiac arrest and myocardial infarction on the later dated State certificate, a copy of any corrected certificate, if available, is necessary to clearly establish the primary and contributing causes of death. Regarding a relationship of the cause of death to active service, the Veteran's service treatment records show that he sought treatment for chest pain on three occasions. In August 1974, he reported experiencing chest pain for one month particularly when he tried to sleep on his left side. A clinician diagnosed pleurisy with sinusitis and prescribed heat and over-the-counter anti-inflammatory medication. In May 1976, the Veteran reported mid-sternal chest pain radiating to his back for the past two to three months. A clinician noted chest wall tenderness but regular sinus rhythm with no jugular vein distention or edema and normal pulses. An electrocardiogram (EKG) was normal. In August 1977, the Veteran reported chest pain, but an EKG was again normal, and a clinician noted that the symptoms may be caused by anxiety. There was no immediate follow up on any of these occasions. The Veteran underwent a periodic physical examination in January 1978. On a medical history questionnaire, the Veteran reported experiencing chest pain in 1977 but acknowledged that it was diagnosed as a muscle spasm or anxiety. He denied heart palpitations or heart trouble. Another EKG was normal, and the examining physician noted no heart abnormalities. In a January 1980 retirement examination, the Veteran again reported a history of chest pain, referring to the 1974 episode but noting that there were no further problems. The examiner noted no heart abnormalities. In written statements and at the Board hearing, the appellant contended that the Veteran experienced a heart attack during active service but that it was undiagnosed and untreated. She further contended that the Veteran's heart disorder was worsened by his heavy work loading munitions on aircraft. The file contains several treatment reports and letters from the Veteran's private cardiologist. In October 2004, the Veteran sought treatment for chest pain and underwent a cardiac catheterization. The cardiologist noted that the Veteran had two-vessel coronary artery disease, ischemic cardiomyopathy, and decreased left ventricular dysfunction. The cardiologist noted that the Veteran reported a one to two year history of chest pain, had a family history of coronary artery disease, that congestive heart failure was a new diagnosis. There was no mention of a previous myocardial infarction. In November 2004, a hospital physician noted the Veteran's report that the catheterization revealed an old myocardial infarction. An echocardiogram showed a severely dilated left ventricle. In a June 2005 letter, the cardiologist noted that the current severe ischemic heart disease was "most likely related to an old inferior myocardial infarction that he had many years ago" and that the left ventricular dilation was consistent with this. In a January 2008 letter, the cardiologist again noted that the left ventricular systolic function was severely diminished because of a prior old inferior myocardial infarction "in the distant past." The cardiologist noted that he reviewed the Veteran's active duty military records and concluded that he had episodes of substernal chest discomfort and tightness in the late 60s and early 70s. He further noted, "It is as likely as not that these episodes are very typical heart-like symptoms could (sic) have been the inferior myocardial infarction that he sustained at some point in time." The physician did not comment on the service record diagnoses, tests, or physical examination reports. In another letter in March 2013, the cardiologist noted, "It is probable that those very typical heart-like symptoms were associated and consistent with the myocardial infarction he sustained at some point in time." The Board concludes that additional detail and clarification of the postulated relationship of the three episodes of chest pain to the Veteran's diagnosis of severe heart disease in 2004 is warranted for the following reasons. The cardiologist described the symptoms as "heart-like" without consideration of other factors such as the Veteran's physically demanding occupation and his history of respiratory symptoms and smoking. He did not comment on why the service records all refer to the chest pain as present over a period of months and not as an acute attack. Each episode was clinically investigated with normal EKGs on two occasions and again during a physical examination. None of the episodes were diagnosed as indications of a heart disorder, and no heart abnormalities were noted during the physical examinations. The cardiologist noted the likelihood of an old myocardial infarction but concluded only that it occurred in the distant past but not that it occurred on active duty. He did not explain why damage caused by the old myocardial infarction did not cause symptoms prior to 2004 when he referred to heart disease as a new diagnosis. Therefore, the Board concludes that the medical information of record is not sufficient to decide the claim and that an additional record review and opinion is necessary. The appellant must also be afforded the opportunity to seek additional clarification from the private cardiologist. Accordingly, the case is REMANDED for the following action: 1. Provide the appellant with a notice that meets the requirements applicable to a claim for DIC including a list of the Veteran's service-connected disabilities at the time of his death and the criteria for DIC based on a service-connected disability and based on a disability not yet service connected on a direct and secondary basis. The notice must also afford the appellant the opportunity to obtain additional opinion, clarification, or explanation relevant to service connection for the cause of the Veteran's death from private medical providers. 2. Request from the appellant, or if necessary, the appropriate agency of the State of Georgia, the most recent official copy of the Veteran's death certificate. Associate any records received with the claims file. 3. Provide the claims file to a VA cardiologist. Request that the physician review the entire claims file including the service and post-service treatment records, certificate(s) of death, lay statements by the appellant and her daughter, and the 2005, 2008, and 2013 opinions by the Veteran's private cardiologist. Request that the physician provide answers and opinions to the following questions: a. Were any of the following service connected disabilities primary or contributing causes of death: cervical spine disease, lumbar spine disease, hiatal hernia, or sinusitis? b. If the primary or contributing causes of death were not among the service-connected disabilities, were any of the primary or contributing causes of death proximately caused or aggravated beyond the normal progression of the disorder by cervical spine disease, lumbar spine disease, hiatal hernia, or sinusitis. c. If a primary or contributing cause of death was cardiovascular disease or an acute myocardial infarction: (1) Did that disease first manifest during active service or within one year of active service? (2) Did the Veteran experience a myocardial infarction during active service? (3) Did the three treatment encounters for chest pain in 1974, 1976, and 1977 represent the first manifestation of heart damage or chronic cardiovascular disease? The reviewing physician must indicate agreement or disagreement with the observations and opinions of the private cardiologist in 2005, 2008 and 2013 and explain the reasons for the opinion or why an opinion cannot be provided such as inadequate evidence, shortcomings in the state of medical knowledge, or lack of experience or training by the examiner. 4. Thereafter, readjudicate the claims for service connection for the cause of death and for DIC under the provisions of 38 U.S.C.A. § 1310. If the benefit sought is not granted to the appellant's satisfaction, provide the appellant and her representative with a supplemental statement of the case and afford an appropriate opportunity to respond. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs