Citation Nr: 1337317 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-23 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to recognition as the Veteran's surviving spouse for purposes of receiving VA death benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1971. He died in October 2007. Part of the issue in this case is whether the appellant is considered the Veteran's surviving spouse for VA purposes. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO). In May 2011, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. This development included a request to confirm that the appellant was the surviving spouse of the Veteran for VA purposes. FINDINGS OF FACT 1. Documentation in the claims folder indicates that the appellant has been in receipt of VA benefits based on recognition of her status as the Veteran's spouse prior to his death; the official death certificate also lists her as the spouse of the Veteran. 2. There is currently no evidence in the file showing that the Veteran and appellant filed a divorce action or were legally separated prior to the Veteran's death. 3. The Veteran died on October [redacted], 2007 at the age of 58, due to multisystem organ failure due to or as a consequence of hepatocellular carcinoma due to or as a consequence of liver cirrhosis. Other significant conditions contributing to death but not resulting in the underlying cause were diabetes, hypertension, and coronary artery disease. 4. At the time of his death, the Veteran was service-connected for PTSD, coronary artery disease, diabetes mellitus, and hearing loss. He was considered totally disabled due to his service-connected disabilities since February 1, 2007. 5. The evidence is at least in equipoise as to whether the Veteran's cirrhosis, identified as a significant factor in his death, was due to alcoholism that was a symptoms of his service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the appellant, the criteria establishing recognition of the appellant as surviving spouse, and as a proper claimant for DIC benefits, are met. 38 U.S.C.A. §§ 101, 103, 1102, 1304, 1541 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.50, 3.53, 3.54, 3.202, 3.205, 3.207, 3.215 (2013). 2. The criteria for an award of service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the favorable disposition of the claim, for recognition of the Appellant as the qualifying Spouse for VA Benefits, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 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 or her 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). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the appellant was sent letters in November 2007 and May 2011 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letters provided notice as to how VA assigns an appropriate effective date. The May 2011 letter meets the criteria set forth by the United States Court of Appeals for Veterans Claims (court) in Hupp. After issuance of the May 2011 letter to the appellant, her claim was readjudicated by the Agency of Original Jurisdiction (AOJ) in the May 2012 supplemental statement of the case, thus curing any notice error. See Mayfield v. Nicholson, 444 F.3d at 1328; see also Prickett v. Nicholson, 20 Vet. App. at 376. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the appellant in the development of her claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All reasonably identified and available VA and non-VA medical records were obtained. In this case, a review of the Veteran's Virtual VA electronic file does not reveal any additional evidence relevant to the claim on appeal. The purpose of the Board's May 2011 remand was, in part, to obtain information from the appellant regarding the Veteran's terminal records from the Rhode Island Hospital in September/October 2007, when he underwent liver resection surgery, as well as additional information on treatment received for his hepatocellular carcinoma and liver cirrhosis. Upon authorization from appellant, the RO was to obtain the terminal records from the Rhode Island Hospital, as well as any private treatment records identified by her; and, then obtain a VA medical opinion regarding the cause of the Veteran's death. The appellant failed to respond to this request for information or to sign an authorization for VA to obtain the required records. The Board reminds the appellant that corresponding to VA's duty to assist the appellant in obtaining information is a duty on the part of the appellant to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one- way street"). VA's duty must be understood as a duty to assist the appellant in developing her claim, rather than a duty on the part of VA to develop the entire claim with the appellant performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Then, Board also requested a VHA medical opinion regarding the claim on appeal and an opinion was obtained in August 2011 based on all the available medical evidence. The appellant was provided with a copy of that opinion, and was afforded the opportunity to respond; she did not submit any additional argument. There has been substantial compliance with the Board's May 2011 remand. The August 2011 VHA report is adequate for rating purposes as the entire available claims file was reviewed, the examiner reviewed the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with a rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, post-service reports of VA and private treatment and examinations, to the extent available. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002 II. Whether the Appellant is a Qualifying Spouse for VA Benefits VA death benefits may be paid to a surviving spouse who was married to the Veteran: (1) one year or more prior to the Veteran's death or (2) for any period of time, if a child was born of the marriage, or was born to them before the marriage. 38 U.S.C.A. §§ 1102, 1304, 1541 (West 2002 & Supp. 2013); 38 C.F.R. § 3.54 (2012). One claiming to be the spouse of a veteran has the burden to come forward with a preponderance of evidence of a valid marriage under the laws of the appropriate jurisdiction. See Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C.A. § 103(c) (West 2002); 38 C.F.R. § 3.1(j). "Surviving spouse" means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death. 38 C.F.R. § 3.50(b). Additionally, the spouse must have lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse. 38 C.F.R. § 3.50(b) (1). Finally, the spouse must not have remarried or (since the death of the veteran and after September 19, 1962) lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. 38 C.F.R. § 3.50(b) (2). (See also § 3.52, regarding the validity of marriages when there was cohabitation and an unknown impediment.) Essentially, the surviving spouse's fault or absence of fault for separation, for purposes of determining entitlement to surviving spouse benefits, is to be determined based on analysis of conduct at time of separation. Gregory v. Brown, 5 Vet. App. 108 (1993). Certain conduct subsequent to the time of separation may be relevant in an appropriate case with respect to the question of fault at the time of separation, but the mere acts of seeking divorce and failing to reconcile are not in and of themselves relevant to fault, and, standing alone, do not constitute evidence of fault at the time of separation. Gregory, 5 Vet. App. at 112. Further, if a spouse has been physically and emotionally abused and separates from the abuser, the abused spouse's acts of initiating a divorce and refusing to reconcile would not be competent evidence to demonstrate fault on the part of the abused spouse at the time of the separation. Id. The continuous cohabitation element is further explained in § 3.53(a); it states that the general requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. Id. Regarding how VA is to make such determinations, the statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. 38 C.F.R. § 3.53(b). If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. Id. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. Id. A review of the claims file reveals that the appellant was the Veteran's spouse and was accepted as such for many years by VA. In December 2004 correspondence, the Veteran was informed that his benefits included an additional amount for his spouse. He was advised to, "Let us know right away if there is any change in your marital status." An April 2005 VA letter asks for the Veteran's spouse's correct Social Security number for benefit purposes. A VA report of contact noted the Veteran called and gave VA his spouse's (appellant's) correct Social Security number. Subsequently, in a June 2005 letter VA confirmed the continuation of spousal payments. The file also contains a published obituary from the Providence Journal dated October [redacted], 2007 listing the appellant as the spouse of the deceased Veteran. Additionally, the official registered State of Rhode Island certificate of death dated October [redacted], 2007 lists the appellant as the Veteran's legal spouse. Here, the Board finds that the appellant and the Veteran were legally married at the time of his death. While the Veteran at a May 2007 VA PTSD examination told the examiner that he had been married to his second spouse for almost 20 years and was currently going through his second divorce; he also stated that "they have not yet filed for divorce." In addition he stated that, "he will be applying for subsidized housing and his spouse will be living with relatives." However, there is no evidence that they began divorce proceedings, or separated, or that they did not live together continuously from the date of marriage to the date of the Veteran's death. 38 C.F.R. § 3.50(b) (1). The Board finds the appellant has been accepted by both the Social Security Administration and the VA as the Veteran's spouse. There is no indication in the record that the appellant was divorced from the Veteran, separated from him, or cohabitating with another person prior to the Veteran's death. As the claim is in equipoise, the Board finds that status as a surviving spouse for VA benefits is appropriate in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Cause of Death The appellant seeks service connection for the cause of the Veteran's death. She asserts that his service connected disorders, including posttraumatic stress disorder (PTSD), coronary artery disease, diabetes mellitus, and hearing loss caused or contributed substantially or materially to his death. The Veteran died in October 2007 at the age of 58. The death certificate indicates that the immediate cause of the death was due to multisystem organ failure due to or as a consequence of hepatocellular carcinoma due to or as a consequence of liver cirrhosis. Other significant conditions contributing to death but not resulting in the underlying cause were diabetes, hypertension, and coronary artery disease. An autopsy was not performed. During the Veteran's lifetime, he was service-connected for PTSD, assigned a 70 percent disability rating; coronary artery disease, assigned a 30 percent disability rating; diabetes mellitus, assigned a 20 percent disability rating; and hearing loss, assigned a noncompensable disability rating. He was considered totally disabled due to his service-connected disabilities since February 1, 2007. Service treatment records do not reference complaints or diagnoses of, or treatment for, multisystem organ failure, hepatocellular carcinoma, or liver cirrhosis. The evidence of record includes a November 2007 letter, Thomas J. Miner, M.D., opined that the Veteran's history of coronary artery disease and diabetes likely contributed to the development of sepsis and myocardial infarction. As that opinion was not accompanied by a rationale, it is not deemed highly probative. However, the Board nevertheless finds a basis for an award of service connection for the cause of death here. As noted above, service connection was in effect for PTSD at the time of the Veteran's death. A December 2003 psychiatric examination from the Veteran Center reflects a diagnosis of PTSD, and notes that the Veteran had masked his symptoms with alcohol abuse for years. The VA examinations further reflect a history of alcohol abuse. Although those later opinions do not expressly relate such abuse to the service-connected PTSD, from a fair review of the record this question must be deemed at least in equipoise. Moreover, the evidence indicates that the cirrhosis listed on the death certificate was a significant factor in the Veteran's death. See August 2011 VHA opinion. As the Veteran had alcoholic cirrhosis, then, it can be concluded that the alcohol abuse triggered by the service-connected PTSD led to the Veteran's terminal cirrhosis. Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board acknowledges that service connection cannot be established for a disability resulting from willful misconduct or the primary abuse of alcohol or drugs incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Willful misconduct is defined as an act involving conscious wrongdoing or a known prohibited action, and alcohol and drug abuse are, by statute, deemed to be willful misconduct. Direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is thereby precluded for purposes of all VA benefits for a claim. U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(m), 3.301(d). However, service connection for an alcohol- related disability may granted if it was acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. See 38 C.F.R. § 3.310 In light of the foregoing, service connection for the cause of the Veteran's death is warranted here. In so finding, the benefit of the doubt has been applied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER The appellant is recognized as the Veteran's qualifying spouse for VA purposes. Service connection for the cause of the Veteran's death is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs