Citation Nr: 1338086	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  08-03 115	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD), for accrued benefits purposes. 

2.  Entitlement to service connection for the cause of death of the Veteran.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to December 1967.  The Veteran died in December 2004.  The appellant is the surviving spouse of the Veteran. 

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions that were issued by the Regional Office (RO) in Lincoln, Nebraska in April 2007 and July 2007.

In a November 2011 decision, the Board remanded these issues for additional development.  The requested development was completed and the VA Appeals Management Center (AMC) readjudicated the case by means of a July 2012 supplemental statement of the case.  In response, the appellant's representative submitted a statement requesting that the matter be returned to the Board immediately and for the Board to consider the new evidence and proceed with the adjudication of the appeal.  The case was subsequently returned to the Board for further appellate consideration. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal.


FINDINGS OF FACT

1.  The Veteran died in December 2004. 

2.  At the time of the Veteran's death there was a pending claim for service connection for PTSD.

3.  The appellant's claim for service connection for PTSD for accrued benefits was received in September 2007, over one year after the Veteran's death.

4.  As reflected on his death certificate, the Veteran died from arteriosclerotic cardiovascular disease. 

5.  Although there is no medical opinion linking the Veteran's arteriosclerotic cardiovascular disease to service, the disease, which is a type of ischemic heart disease, is among those recognized by VA as etiologically related to exposure to herbicide agents. 

6.  The Veteran had active service in the Republic of Vietnam during the Vietnam Era, and thus may be presumed to have been exposed to herbicide agents during service.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for PTSD, for accrued benefits purposes, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.1000 (2012).

2.  The criteria for service connection for the Veteran's cause of death are met.  38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

The VCAA is not applicable where further assistance would not aid the appellant in substantiating her claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  Given the favorable disposition of the claim for service connection for the cause of the death of the Veteran; the Board finds that all notification and development actions needed to fairly adjudicate this claim has been accomplished.

Regarding the appellant's claim for entitlement to service connection for PTSD for accrued benefits purposes, the Board finds that all notification action needed to make a decision as to the claims on appeal has been accomplished.  Through a February 2007 notice letter, prior to a July 2007 rating decision, the appellant was notified of the information and evidence needed to substantiate her claim for accrued benefits.

There is no indication that any additional action is needed to comply with the duty to assist in connection with the accrued benefits claim.  For accrued benefits purposes, only evidence contained, or constructively contained, in the claims file is for review.  Here, the appropriate evidence is already associated with the claims file.  No further information or evidence is thus required for the claim.

Accrued Benefits 

      Laws and Regulations

The appellant and her representative have contended that she is entitled to accrued benefits based on the Veteran's PTSD claim which was pending at the time of his death.  She essentially contends that, because the Veteran had a claim of service connection for PTSD pending at the time of his death, she is entitled to pursue this claim for purposes of obtaining accrued benefits, and service connection for purposes of accrued benefits is warranted.

Upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which he or she was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based upon existing rating decisions or other evidence that was on file when the veteran died.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 

A consequence of the derivative nature of a surviving spouse's claim for entitlement to a veteran's accrued benefits is that, without the veteran having a claim pending at time of death, the surviving spouse has no claim upon which to base his or her own application.  Jones v. West, 136 F.3d 1296 (Fed. Cir. 1996). 

An application for accrued benefits must be filed within one year after the date of death.  A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits.  38 C.F.R. §§ 3.1000(c), 3.152(b) (2012).  However, for claims for death benefits, a specific claim in the form prescribed by the Secretary must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.152(a) (2012). 

The evidence for review must have been in VA's possession or constructively in VA's possession at the date of the Veteran's death.  38 C.F.R. § 3.100(d) (4) (2012). 

In this case, the record shows that the Veteran had a claim pending for entitlement to service connection for PTSD at the time of his death in December 2004.  In November 2003, the RO received the Veteran's original claim of entitlement to service connection for PTSD which was then denied in a February 2004 rating decision.  The Veteran appealed this decision which was eventually remanded by the Board in May 2006 prior to the Board's learning of the Veteran's death.  Therefore, the issue of service connection for PTSD remained pending and unadjudicated at the time of the Veteran's death.

The record demonstrates that the appellant filed her claim for entitlement to PTSD for accrued benefits purposes in February 2007.  The Veteran's death certificate shows that he died in December 2004.  Accordingly, as the appellant's filing for accrued benefits occurred more than one year after the Veteran's death, the accrued benefits claim is barred as untimely.  

As the claims file shows that the appellant did not file her application for PTSD for accrued benefits purposes within one year after the date of the Veterans' death, she is not legally entitled to these benefits.  See 38 C.F.R. §§ 3.1000(c), 3.152(b) (2012).  The law pertaining to eligibility for accrued benefits is dispositive of this issue, the appellant's claim must be denied because of the absence of legal merit or entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

Cause of Death Claim

To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto.  38 C.F.R. § 3.312(b).  For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c). 

The legal authority governing claims for service connection based on herbicide exposure is also pertinent to this claim. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a) (6) (iii). 

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e). 

On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e)  to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B Cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era.  75 Fed. Reg. 53,202 (Aug. 31, 2010).  Ischemic heart disease includes, but is not limited to, acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary by bypass surgery; and stable, unstable, and Prinzmetal's angina.  38 C.F.R. § 3.309(e).

The Board notes that it cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

      Factual Background and Analysis

As noted in the previous November 2011 remand, it was the appellant's assertion that the Veteran's death was presumptively service-connected because his death certificate lists diabetes mellitus as another significant condition contributing to death but not related and he served in Vietnam.  As a result, the Board remanded this issue in November 2011 for additional development which included referring the matter to a VA physician to determine whether the Veteran in fact had diabetes mellitus during his lifetime, based on a review of all of the relevant evidence.

However, the Board notes that in a July 2011 statement, the appellant also indicated that she elected to have ischemic heart disease added to her claim for death indemnity compensation (DIC) benefits.  The appellant asserted that the Veteran's death was caused by diseases which resulted from his exposure to Agent Orange.

Notably, the Veteran served in Vietnam and his death certificate lists cardiorespiratory failure as the immediate cause of death due to or as a consequence of respiratory distress which resulted from arteriosclerotic cardiovascular disease (ASCVD).

Notwithstanding the question of whether the Veteran in fact had diabetes mellitus during his lifetime, after careful review of the record, and in consideration of the new herbicide-related presumptions, the Board finds that the record reasonably presents a basis for an award of service connection for the cause of the Veteran's death due to atherosclerotic cardiovascular disease.  

The Veteran's DD 214 reflects that he served in Vietnam.  The Veteran is therefore presumed to have been exposed to herbicide agents in service, and there is no evidence to rebut this presumption.  Moreover, the record clearly indicates that the Veteran died from atherosclerotic cardiovascular disease, a type of ischemic heart disease which is among those recognized by VA as etiologically related to exposure to herbicide agents. 

Under these circumstances, the Board concludes that a disability of service origin caused or contributed substantially or materially to cause the Veteran's death, and that the criteria for service connection for the cause of the Veteran's death are met.  38 C.F.R. §§ 3.309(e), 3.312 (2012).

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ORDER

Service connection for posttraumatic stress disorder (PTSD) for accrued benefits purposes is denied.

Entitlement to service connection for the cause of the Veteran's death is granted. 


____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs