Citation Nr: 1342382	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  10-19 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

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

2.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD), for the purpose entitlement to accrued benefits.  

3.  Entitlement to service connection for hepatitis C, for the purpose of entitlement to accrued benefits.

4.  Entitlement to service connection for depression, for the purposes entitlement to accrued benefits.

5.  Entitlement to service connection for cirrhosis of the liver, for the purpose of entitlement to accrued benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to January 1968.  He died in September 2008, and the appellant is his surviving spouse.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in May 2009 and March 2010 by the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO).

The Virtual VA paperless claims processing system contains an electronic copy of an October 2013 brief submitted by the appellant's representative.  A review of the electronic Veterans Benefit Management System does not reveal any additional documents pertinent to the present appeal.

The appellant's accrued benefits claims for a rating in excess of 50 percent for PTSD and for service connection for hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The Veteran had claims for service connection for cirrhosis of the liver and service connection for depression pending at the time of his death.

2.  The Veteran's spouse filed a claim for dependency and indemnity compensation and accrued benefits in March 2009, which was within a year of the Veteran's death in September 2008.

3.  The evidence is at least in equipoise to show that the Veteran had cirrhosis of the liver as a result of alcohol dependence related to his service-connected PTSD.

4.  The evidence is at least in equipoise to show that the Veteran had depression that was a result of service-connected cirrhosis of the liver and PTSD.

5.  The evidence is at least in equipoise to show that the Veteran's death was due to or a consequence of cirrhosis of the liver.


CONCLUSIONS OF LAW

1.  The criteria for accrued benefits based on a claim of service connection for cirrhosis of the liver are been met.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 

2.  The criteria for accrued benefits based on a claim of service connection for depression are met.  38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). 

3.  The criteria for service connection for the cause of the Veteran's death are met.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants in full the claims for service connection for the cause of the Veteran's death, for service connection for cirrhosis of the liver for the purpose of accrued benefits, and for service connection for depression for the purpose of accrued benefits.  As a result, no further discussion of VA's duty to notify and assist is required with respect to these issues.


Law and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related.  For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection.  Id.

Certain survivors of a deceased veteran or VA claimant are eligible to receive from VA payments of "accrued benefits" based upon the deceased veteran's or claimant's statutory entitlement to such benefits.  38 U.S.C.A. § 5121(c).  An accrued benefit is a periodic payment to "to which [the veteran] was entitled at death under existing ratings or decisions, or ... based on evidence in the file at date of death ... and due and unpaid." Id.; see also 38 C.F.R. § 3.1000.  Applications for accrued benefits must be filed within one year after date of death.  38 U.S.C.A. § 5121(c).  38 U.S.C.A. 5121(a)(2)(A) provides that upon the death of a veteran payment of accrued benefits will be made to the surviving spouse of the veteran, if he or she is living.
 
For a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his or her death or else be entitled to benefits under an existing rating or decision.  Jones v. Wes t, 136 F.3d 1296, 1299 (Fed.Cir.1998); Zevalkink v. Brown, 102 F.3d 1236, 1241 (Fed. Cir .1996) ("[A]n accrued benefits claim is derivative of the veteran's claim for service connection, i.e., the claimant's entitlement is based on the veteran's entitlement.").  Whether accrued benefits should be awarded "must be determined based on evidence that was either physically or constructively in the veteran's file at the time of his death." Ralston v. West, 13 Vet. App. 108, 113 (1999); see Hayes v. Brown, 4 Vet. App. 353, 358-59 (1993); 38 C.F.R. § 3.1000(d)(4) (defining "[e]vidence in the file at date of death").  

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, in support of a claim for VA benefits pending on the date of death.  38 C.F.R. § 3 .1000(d)(4).  Importantly, and directly relevant under the facts of this case, this includes records of VA treatment even if they were not in the claims file at the time of the Veteran's death.

When examining clinicians are not able to distinguish the symptoms and/or degree of impairment due to a service-connected versus a nonservice-connected disorder, VA must consider all of the symptoms in the adjudication of the claim.  Mittleider v. West, 11 Vet. App. 181 (1998).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  


Analysis

During a November 2004 VA examination, a psychiatric examiner commented that PTSD and alcohol were commonly comorbid with each other.  The examiner noted that alcohol dependence worsened the Veteran's symptomatic picture and was contributing significantly to his disability.  The examiner also indicated that the Veteran's PTSD was likely contributing to the Veteran's alcoholism and that the Veteran's PTSD significantly impaired the Veteran's social and occupational functioning.  

A December 2004 VA Vet Center treatment record includes diagnoses of severe and chronic PTSD and alcohol dependence.

At a VA examination in July 2006, the Veteran was diagnosed as having chronic PTSD and alcohol dependence.  

In February 2008, the Veteran was hospitalized at VA for new-onset cirrhosis of the liver.  His VA treatment records describe the cirrhosis as alcoholic cirrhosis, and his PTSD and alcohol consumption were diagnosed in association with one another.

At a VA examination in August 2008, the Veteran was diagnosed as having PTSD and cirrhosis of the liver.
 
An August 2008 VA hospital summary indicates that that the current status of the Veteran's PTSD had become difficult to evaluate because of the overlap with other symptoms, and it was noted that the Veteran had become depressed due to his physical condition.  The diagnoses included chronic PTSD; a depressive disorder not otherwise specified, secondary to medical condition; and cirrhosis of the liver.

In August 2008, the Veteran submitted claims for service connection for depression and service connection for cirrhosis of the liver.  He died in September 2008, and his claims remained pending at the time of his death.  

The Veteran's death certificate indicates that he died in September 2008.  The immediate cause of death was listed as cardiac failure, due to or as a consequence of hypotension and acidosis, due to or as a consequence of gastrointestinal bleeding, due to or as a consequence of cirrhosis.

In March 2009, the RO received the appellant's claims for accrued benefits and for service connection for the cause of the Veteran's death.  These claims were received in March 2009, which was within one year of the Veteran's death; therefore, they were timely.  See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000.  

As described above, the medical evidence of record is at least in equipoise to show that the Veteran's PTSD caused or aggravated his alcohol consumption; that his alcohol consumption caused his cirrhosis of the liver; and that he became depressed as a result of his decline in physical health attributable in large part to his cirrhosis of the liver.  The evidence further shows without contradiction that the Veteran died as due to or as a consequence of cirrhosis of the liver.  The Board finds the above-discussed medical opinions of VA examiners and VA treatment providers to be based on an accurate understanding of the Veteran's medical history and to be sufficiently well-explained.  The medical evidence in support of these claims is therefore competent evidence of a high probative value.

Accordingly, entitlement to service connection for cirrhosis of the liver for the purpose of accrued benefits, for service connection for depression for the purpose of accrued benefits, and for service connection for the cause of the Veteran's death is granted.


ORDER

Entitlement to service connection for cirrhosis of the liver for the purpose of accrued benefits is granted.

Entitlement to service connection for depression for the purpose of accrued benefits is granted.

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



REMAND

In June 2008, the Veteran contended that he had hepatitis C that was diagnosed by VA study beginning in the year 2000.  However, the VA treatment records associated with the claims file only date back to 2004.  For the appellant's accrued benefits claim, all potentially relevant records of VA treatment are considered to be in constructive possession of VA, whether or not they are actually associated with the Veteran's VA claims file.  See 38 C.F.R. § 3.1000(d)(4).  Accordingly, any potentially relevant records of VA treatment from the year 2000 through September 2008 that are not currently associated with the claims file should be sought and associated with the claims file.  Id.

Additionally, further relevant VA records of psychiatric treatment may be received in connection with this remand, which could impact adjudication of the issue of entitlement to an increased evaluation for PTSD.  See 38 C.F.R. § 3.1000(d)(4).  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should seek to obtain any additional records of VA treatment potentially relevant to the appellant's accrued benefits claims for service connection for hepatitis C and for an increased rating for PTSD.  This should include any relevant VA treatment records for the period from the year 2000 through September 2008 that have not previously been received into the VA claims file. 

2.  The RO/AMC should conduct any other development that may be indicated as a consequence of the action taken in the preceding paragraphs.

3.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If any benefits sought are not granted, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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).

This appeal 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).



______________________________________________
J. W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs