Citation Nr: 1338437	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-39 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for the cause of the decedent's death.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Ralph Luciani, The American Legion

ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel


INTRODUCTION

The decedent served on active duty for training (ACDUTRA) in the Army National Guard from November 1966 to April 1967 and had subsequent periods of ACDUTRA until July 1970.  The decedent died on March [redacted], 2010; the Appellant is his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In July 2012, the Appellant's representative presented testimony on behalf of the Appellant before the undersigned Acting Veterans Law Judge.  The undersigned granted the representative's motion for good cause to present argument without the Appellant present.  Board Hearing Tr. at 3; see 38 C.F.R. § 20.700(b) (2013).  A transcript of that hearing is of record.  At the hearing, the Appellant's representative submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of such evidence.  See Board Hearing Tr. at 9.  The Board accepts the additionally-received evidence for inclusion in the record.  See 38 C.F.R. §§ 20.800, 20.1304 (2013).  

During the July 2012 hearing, the Appellant's representative clarified that the Appellant's May 2010 claim for dependency and indemnity compensation included a claim to substitute in the claims of the propriety of severance of service connection for amyotrophic lateral sclerosis (ALS); of entitlement to service connection for an adjustment disorder with mixed emotional features, as secondary to ALS; and for entitlement to a total disability rating based upon individual unemployability.  The record reasonably raises these issues, which have not yet been addressed by the AOJ.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  During the decedent's lifetime, service connection was not established for any disability.

2.  The decedent's death certificate indicates that the immediate cause of his death was cardiopulmonary arrest due to ALS.

3.  The decedent only had ACDUTRA service with the Army National Guard; he did not serve on active duty and did not incur any disease or injury during ACDUTRA.

4.  ALS was not incurred in or aggravated by any period of ACDUTRA.


CONCLUSIONS OF LAW

1.  The decedent did not have active military, naval, or air service; as such, the presumption of service connection for ALS does not apply.  38 U.S.C.A. §§ 101(24), 1110 (West 2002); 38 C.F.R. § 3.318(a) (2013); Bowers v. Shinseki, 26 Vet. App. 201 (2013).

2.  The criteria for service connection for the cause of the decedent's death have not been met.  38 U.S.C.A. §§ 101(22), (24), 1110, 1310 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312, 3.318 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

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 or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  This 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).  For service-connection claims, this notice must address the downstream elements of disability ratings and effective dates.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a claim for dependency and indemnity compensation (DIC) benefits based on service connection for the cause of a veteran's death, VA's notice requirements 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 (2007).

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Appellant in May 2010 that fully addressed all required notice elements and was sent prior to the initial RO decision in this matter.  The letter informed the Appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. 

The Board notes that the RO did not provide the Appellant with a statement of conditions for which the decedent was service connected at the time of his death, consistent with Hupp.  However, the claims file reflects that the Appellant and her representative had actual knowledge that the decedent was not service connected for ALS at the time of his death.  In this regard, in September 2011 and July 2012 statements, the Appellant's representative acknowledged that the decedent had originally been service connected for ALS, and that service connection was subsequently severed.  Given this, the Board finds that the absence of Hupp notice is harmless because actual knowledge by the Appellant (through her representative) of what conditions the decedent was service connected for at the time of his death is shown.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (where the appellant demonstrated awareness of the information and evidence necessary to establish entitlement to his claim, the appellant was not prejudiced by VA's failure to satisfy the duty to notify prior to the initial adjudication).

VA has a duty to assist a claimant in the development of the claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing a medical opinion when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, however, the claim turns upon an issue regarding the status of the decedent as a veteran under the law; there was no medical question to be resolved.  As such, VA therefore has no duty to provide a medical opinion with regard to the issue on appeal.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 

The Appellant was provided an opportunity to set forth her contentions on the claim (through her representative) during the July 2012 hearing before the undersigned.  The Court has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  The record reflects that at the July 2012 hearing the undersigned explained the issues, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim.  Neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

Neither the Appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Appellant is required to fulfill VA's duty to assist under the VCAA.  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).  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). 

II.  Analysis

Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service.  38 C.F.R. § 3.303(d).

To establish entitlement to service connection for the cause of the decedent's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).  To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death.  38 C.F.R. § 3.312(c)(1).  It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown.  Id. 

During the decedent's lifetime, service connection was not established for any disability.  His death certificate reflects that he died in March 2010; the immediate cause of his death was cardiopulmonary arrest due to ALS.

In this case, there is no question as to whether ALS substantially or materially aided or lent assistance to the production of death.  The medical evidence of record unmistakably demonstrates that the decedent's diagnosed ALS caused his death.

The Appellant does not assert that service connection for cause of the decedent's death be granted on a direct basis, as the decedent's service treatment records reflect no neurological problems or complaints, and the Appellant does not allege that his ALS began in service.  The record clearly establishes that the decedent was first diagnosed with ALS in October 2007, after experiencing recurrent neurological symptoms since a surgery in March 2007.  In this case, the Appellant argues that entitlement to cause of death be granted on a presumptive basis, under the provisions set forth in 38 C.F.R. § 3.318.

Section 3.318 states that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.  38 C.F.R. § 3.318(a).  Service connection will not be established if, inter alia, the claimant did not have active, continuous service of 90 days or more.  Id. (b)(3).  The issue upon which this matter turns is whether the decedent had "active military, naval, or air service" under the law, and is therefore a "veteran" entitled to compensation benefits.  38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013) (For VA purposes, a "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.").

"Active military, naval, or air service" includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of INACDUTRA in which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).

In this regard, the decedent served on an extended period of ACDUTRA from November 1966 to April 1967, where he attended basic training and advanced training specific to his military occupational specialty.  His DD Form 214 indicates that the decedent's source of entry into the military was that he was ordered to ACDUTRA.  The remarks section relating to this comment contains a note that the decedent was "[r]eleased from active duty and returned to State Control as a member of the Army National Guard of New York to complete remaining service obligation 4 years 1 month."  The remarks section also notes "6 MONTHS ACDUTRA."  The Appellant argues that the statement that the decedent was "[r]eleased from active duty" is proof that he had active duty service.  The Board disagrees.
Although the decedent's DD Form 214 uses the term "active duty," there is absolutely no indication from the record that the decedent ever served on active duty.  His DD Form 214 clearly states that he served six months of ACDUTRA during this time period, and that he entered service not through enlistment into active service, but because he was ordered to ACDUTRA.  See Box 17a. on DD Form 214.  In October 2008, the RO submitted a request for verification to the National Personnel Records Center (NPRC) of the decedent's service for the period from November 1966 to April 1967, and the NPRC confirmed that this period of service was ACDUTRA.  The decedent's National Guard separation document indicates that he had service in the National Guard until July 1970, but there is no indication of any active duty service during that time.

The Appellant's representative implies that the decedent would not have been issued a DD Form 214 if he were not on active duty.  See July 2012 argument (noting that the decedent's DD Form 214 depicted a different type of service than his National Guard separation document).  In support of this assertion, the representative submitted Army Regulations concerning Personnel Separations/Separation Documents.  Personnel Separations, Separation Documents, AR 635-5 (May 1972).  This Army Regulation states that a DD Form 214 is issued at the time of separation to each member of the Regular Army, as well as, inter alia, each member of the Army National Guard ordered to perform full-time training or either full-time duty in his status as a member of the Army National Guard for a period of 90 days or more.  This latter situation describes the case under which the Army issued a DD Form 214 to the decedent-he was ordered to perform full-time training for over 90 days in the Army National Guard.  This, however, is not considered "active military, naval, or air service" as defined by statute because it was not active duty.  Further, the decedent does not have active military, naval, or air service through his service on ACDUTRA because he did not become disabled from a disease or injury incurred or aggravated during ACDUTRA.  His service treatment records only note an upper respiratory infection (resolved without sequela) in 1966, and one period of vomiting in 1967.  On separation, the decedent denied any problems and was found to be normal on examination.  As such, service treatment records contain no evidence of any disease or injury incurred during ACDUTRA.  See 38 U.S.C. § 101(2), (22), (24) (explaining that, in the absence of such evidence, a period of active duty for training does not qualify as "active military, naval, or air service," and that an appellant does not qualify as a "veteran" by virtue of a period of ACDUTRA alone).

Without "active military, naval, or air service," the decedent is not a "veteran" for VA compensation purposes, and the presumption of ALS does not apply.  See Bowers v. Shinseki, 26 Vet. App. 201 (2013).  

In so deciding, the Board has considered the various arguments set forth by the Appellant's representative, regarding his interpretations of the law.  In this regard, her representative has argued that the decedent's full-time ACDUTRA service is included within the definition of "active military, naval, or air service."  See, e.g., Board Hearing Tr. at 4.  He has also asserted that since the decedent served on 90 days of continuous service, he should therefore qualify for the presumption of ALS.  See, e.g., id.  Unfortunately, these arguments are not in accordance with the law, which requires 90 days of continuous, active military, naval, or air service for the presumption of ALS to apply.  See Bowers, 26 Vet. App. at 207-08.  Furthermore, the law is clear that ACDUTRA qualifies as "active military, naval, or air service" only when a claimant dies or becomes disabled from a disease or injury incurred or aggravated in the line of duty.  There is no evidence that the decedent became disabled or died from any disease or injury incurred during ACDUTRA, and the Appellant does not allege as such.

The Board has also considered a December 2009 statement from the decedent, documented by the Appellant prior to his death.  He stated that he served at basic training alongside regular Army trainees, and was subsequently assigned to Army signal school for training.  During that time, he was again serving alongside regular Army soldiers and Reservists.  He stated that his service was always referred to as active duty, and his documentation stated that he was released from active duty and returned to state control.  While the decedent was competent to report on matters observed (such as what people stated during his period of training), see Layno v. Brown, 6 Vet. App. 465, 470 (1994), the Board affords his statements little probative weight in deciding whether his service meets the statutory definition of "active military, naval, or air service."  While others may have referred to his service as "active duty," his official documents indicate that he only served on ACDUTRA.  Significantly, NPRC confirmed that his service during basic training and subsequent training was ACDUTRA.  Here, the Board affords more probative weight to the official findings of the NPRC.

Under these circumstances, the Board finds that the claim for service connection for the cause of the decedent's death must be denied.  As the decedent did not have active military, naval, or air service, the law forbids application of the presumption of ALS.  Bowers, 26 Vet. App. 201.


ORDER

Entitlement to service connection for the cause of the decedent's death is denied.



____________________________________________
M. SORISIO
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs