Citation Nr: 1343312 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 09-16 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension. REPRESENTATION Appellant represented by: Robert Williams, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1957 and from January 1958 to September 1964. He died in December 1988; at the time of his death, the appellant was his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 administrative decision by the VA Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania that denied entitlement to death benefits including dependency and indemnity compensation (DIC), death pension and accrued benefits. During the course of the appeal, jurisdiction of the file was transferred to the RO in Roanoke, Virginia, (Roanoke RO) which currently has jurisdiction of this appeal. In April 2011, the appellant testified before an Acting Veterans Law Judge (AVLJ) during a Travel Board hearing at the Roanoke RO. The AVLJ who conducted that hearing left the Board prior to issuing a decision in the case. Thus, the appellant was afforded another opportunity for a hearing before a Veterans Law Judge that would ultimately decide her appeal. The appellate requested such a hearing, which was subsequently held in September 2013 via video conference before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. The appeal is REMANDED to the VA RO in Roanoke. VA will notify the appellant if further action is required. REMAND The Veteran's death certificate reveals that he died in December 1988 of arteriosclerotic coronary disease. For Veterans who served in the Republic of Vietnam during the Vietnam era, exposure to herbicides is presumed. See 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). The Vietnam era is defined as the period beginning on January 9, 1962, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964 and ending on May 7, 1975, inclusive, in all other cases. See 38 C.F.R. § 3.2 (f) (2013). Under 38 C.F.R. § 3.309(e), those Veterans who served in Vietnam during the Vietnam era are entitled to the presumption of service connection for certain diseases that have been associated with herbicide exposure. One of those enumerated diseases is coronary artery disease. Therefore, if the Veteran served in Vietnam during the Vietnam era, the appellant can establish service connection for the cause of the Veteran's death on a presumptive basis. The appellant maintains that her late husband served in the Republic of Vietnam during the Vietnam era; however, neither the personnel records nor the service treatment records currently located in the claims file corroborates the appellant's assertions that her late husband had service in Vietnam. In fact, there is only one service medical record showing that the Veteran served outside the United States, and it shows that the Veteran was treated for a head cold in August 1953 at Yokota Air Force Base in Honshu, Japan. It is not clear from the record as to how much time the Veteran spent in Japan. It appears that the service treatment records (STRs) and/or the service personnel records are incomplete. A review of the Veteran's DD Form 214 from his final period of service, ending in September 1964 reflects that the Veteran had 2 years, 8 months, and 21 days of foreign or sea service, but there is no indication in the claims file as to where this service took place. Moreover, the DD Form 214 from his period of service beginning in January 1954 does not reflect that the Veteran had any foreign service as of his date of discharge for that period in December 1957. Because the appellant maintains that her late husband served in Vietnam, and there is evidence on the Veteran's DD Form 214 that he had over two years of foreign and/or sea service, an additional search for the outstanding records must be made to determine where the Veteran served outside the United States, and more importantly, whether he had service in Vietnam during the Vietnam era. At the appellant's September 2013 hearing, she testified that when she and the Veteran lived in Oklahoma and Kansas, "... when a storm would come up and that very seldom happened, you know, like it does here -- he would get real nervous and he'd walk the floor, and he'd talk to me then about when he was in Vietnam War, how it was upsetting. He was always nervous." (See September 2013 hearing transcript, page 9). It does not appear that any records were requested or obtained from the National Guard. Because the Veteran served in the National Guard after his active duty ended in September 1964, it is possible that the relevant records were transferred to his National Guard unit instead of the National Personnel Records Center (NPRC). Thus, the RO should contact the Adjutant General's office in the State or States in which the Veteran served in the National Guard in an attempt to obtain any outstanding personnel records and/or service treatment records. In addition, all other potential sources should be contacted in an attempt to obtain the outstanding records. A VA cardiologist, N.J., MD, provided a medical opinion, based on a review of the medical records and claims file. The opinion states, "There is no evidence whatsoever from history, physical exam or any testing that patient's cause of death, hastening factors or contributing factors were due to atherosclerotic or any other form of heart disease." This opinion does not adequately address the issue at hand. It essentially contradicts the finding on the death certificate, which indicates that the Veteran's cause of death was heart disease. Moreover, it does not address the question of a nexus to service. The opinion is therefore inadequate and another opinion is necessary to decide the claim. Regarding the appellant's claim for entitlement to nonservice-connected death pension, the appellant testified at her 2011 hearing that she previously filed for death pension in 1989 but she was told that she made too much money to qualify. (See April 2011 hearing transcript, p. 16.) Currently, the appellant maintains that she no longer makes that much money and may now qualify for death pension. Basic entitlement to nonservice-connected death pension for a surviving spouse exists if (1) the Veteran had qualifying service, or was receiving or entitled to receive compensation or retired pay for a service-connected disability based on wartime service at time of death; and (2) the claimant meets the net worth requirements of § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. §§ 1521, 1541, 1543; 38 C.F.R. § 3.3(b)(4). In this case, the Veteran had qualifying service, as he served for more than 90 days during a period of war. See 38 C.F.R. § 3.3(a)(3),(b)(4). In an August 2011 Board decision, it was determined that the appellant qualified as the surviving spouse of the Veteran for purposes of basic eligibility for DIC and death pension. Further, there is no indication that the appellant does not satisfy the requirements of a surviving spouse. Currently, however, the appellant's countable income is unknown. The appellant's countable income must be calculated to determine whether she qualifies for death pension. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's complete service treatment and service personnel records from the National Guard, including a request sent to the Adjutant General in the state(s) where the Veteran served. 2. Determine, through the appropriate channels, including but not limited to the National Personnel Records Center (NPRC), whether the Veteran served in Vietnam. The RO should also determine where the Veteran had his foreign service as noted on his DD Form 214. 3. After completion of the above, and if the RO determines that the Veteran did not serve in Vietnam, then obtain a VA medical opinion from an expert in cardiology to determine the likely onset and etiology of the Veteran's death-causing coronary artery disease. The claims folder should be made available to and reviewed by the examiner. The examiner should render an opinion as to whether it is more likely than not (meaning likelihood greater than 50%), at least as likely as not (meaning likelihood of at least 50%), or less likely than not or unlikely (meaning that there is a less than 50% likelihood) that the Veteran's coronary artery disease is related to service. The rationale for all opinions expressed should be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Provide the appellant with proper notice of how to substantiate a claim for death pension benefits pursuant to 38 C.F.R. § 3.159. 5. Request the appellant to provide updated income and expense information to include updated Eligibility Verification Reports (EVRs). 6. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records identified above it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the appellant and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the appellant of what evidence she is ultimately responsible for providing. The appellant must then be given an opportunity to respond. 7. Thereafter, conduct any additional development deemed necessary and readjudicate the appellant's claims. If any benefit sought on appeal is not granted to the appellant's satisfaction, a Supplemental Statement of the Case should be issued to the appellant and her representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).