Citation Nr: 1453586 Decision Date: 12/04/14 Archive Date: 12/10/14 DOCKET NO. 14-06 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active service from October 1944 to April 1946 and died in December 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board notes that in September 2013, the appellant asserted that she also disagreed with the May 2013 rating decision's denial of accrued benefits, specifically asserting that, "When my husband died, he was appealing the effective date of the 100% [] prior to 5-5-03. . . . I want to continue my appeal for earlier effective date as accrued benefits." However, a review of the record reflects that the earlier effective date issue was not pending prior to the Veteran's death. During the Veteran's lifetime, in a July 2006 Board decision, the Board denied an effective date earlier than May 5, 2003, for the assignment of a 100 percent disability rating for rheumatoid arthritis. A search of U.S. Court of Appeals cases does not reflect that the Veteran ever appealed the Board's decision to the Court. Accordingly, the record indicates that the July 2006 the Board decision became final, and there was no valid claim for an earlier effective date pending at the time of his death for which the appellant may now continue as either an accrued benefits claimant or substitute claimant. This appeal was previously before the Board in July 2014, at which time the matter was remanded for additional development. The issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran died in December 2011; his death certificate showed that the immediate cause of his death was end stage dementia. 2. The evidence does not establish that dementia had its onset in service, became manifest to a compensable degree during the one-year period following the Veteran's discharge from service, or was otherwise attributable to an in-service disease, injury, or event in service. 3. At the time of his death, service connection was in effect for rheumatoid arthritis, rated as 100 percent disabling, chronic peptic ulcer disease, rated as 10 percent disabling, and residuals of hepatitis, rated noncompensably (0 percent disabling); the Veteran had no other service-connected disabilities. 4. The Veteran did not die as a result of his service-connected disabilities, nor did his service-connected disabilities cause or contribute substantially or materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist In the context of a claim for service connection for the cause of a veteran's death, the VCAA notice provided the claimant must generally include, among other things: (1) a statement of the conditions, if any, for which the veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Compliant notice was provided to the appellant in March 2013. VA also has a duty to assist the appellant in the development of the claim. Here, all relevant records identified by the appellant have been obtained. VA associated VA treatment records prior to his death, and the appellant submitted written statements on her behalf. Moreover, a VA medical opinion regarding the etiology of the Veteran's cause of death was obtained on remand. 38 U.S.C.A. § 5103A(a)(2) (West 2002); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). The examiner reviewed the claims file and provided an adequate explanation for the basis of the opinion. Accordingly, the opinion is deemed adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A review of the claims file also shows that the VA opinion substantially complies with the Board's July 2014 remand directive. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Therefore, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection for the Cause of the Veteran's Death Pursuant to 38 U.S.C.A. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. A death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2014). A disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c). Here, the Veteran's death certificate indicates that the primary cause of his death was end stage dementia. See December 2011 Death Certificate. Although the death certificate also listed diabetes mellitus, arterial hypertension, or hypercholesterolemia as other conditions contributing to the immediate cause, the July 2014 VA examiner explained, [T]he causation sequence listed on the death certificate cannot be accepted automatically as valid because there is absolutely no scientific based evidence that diabetes is caused by arterial hypertension. Rather it is my medical opinion based on reviewing countless death certificates in over 40 years of medical practice e that what is listed on the death certificate are other significant medical conditions that he had, without necessarily imputing causation to the specific condition that caused the Veteran's death, in this case end stage dementia. Without any contrary and competent evidence to the contrary, the Board accepts the VA examiner's opinion and finds that the immediate cause of death was solely end stage dementia and that the other listed conditions were not causative conditions of the dementia. In fact, the examiner explained that the terminal hospitalization stated that the Veteran was receiving home hospice care due to his advanced dementia with a Mitchell Score of 11.4, meaning he had been placed on hospice care/comfort measures only "explicitly because of his advance dementia. This confirms that the cause of the death was end stage dementia." Thus, the Board must ascertain whether the dementia was caused or incurred in service. After carefully reviewing the record, the Board finds that the evidence does not establish that dementia had its onset in service, became manifest to a compensable degree during the one-year period following the Veteran's discharge from service, or was otherwise attributable to an in-service disease, injury, or event in service. Service treatment records are silent for any mention of dementia, and several VA examinations conducted during the 1940s and 1950s following the Veteran's discharge from service are also silent for any dementia-related complaints or symptoms. In fact, the mentality was noted to be normal in August 1946, and nothing was noted for psychiatric and personality reviews during December 1955 and March 1959 VA examination reports. Significantly, there is no competent medical evidence relating the Veteran's dementia to service. Accordingly, the evidence indicates that the Veteran's dementia was unrelated to service. The Board notes that, at the time of his death, service connection was in effect for rheumatoid arthritis, rated as 100 percent disabling, chronic peptic ulcer disease, rated as 10 percent disabling, and residuals of hepatitis, rated noncompensably (0 percent disabling). Accordingly, the Board will also discuss whether any of these conditions played a role in the Veteran's demise in December 2011. Pertinent to this inquiry, the Board remanded this case for a VA opinion in order to determine whether the Veteran's service-connected disabilities contributed to the Veteran's cause of death. In July 2014, a VA medical examiner reviewed the claims file and ultimately concluded that there was "no evidence that any of the [V]eteran's [service-connected] conditions of rheumatoid arthritis, chronic peptic ulcer disease or residuals of hepatitis caused the death of the [V]eteran or contributed substantially or materially, combined, aided or lent assistance to [the] cause of the death." As noted above, the examiner explained in detail that the Veteran's terminal hospitalization was due to his advanced dementia and that end stage dementia was the cause of the death. A review of the VA treatment records is silent for any documentation of rheumatoid arthritis, peptic ulcer disease, or hepatitis residuals contributing to his poor prognosis and ultimate demise during his terminal hospitalization. See November 2011VA hospice note (stating that the "admission diagnosis for hospice/palliative unit" was "end stage dementia"); December 2011 VA treatment records (noting the Veteran was in a "deteriorated condition, he has not been eating", had a poor prognosis, and required assistance with activities of daily living). Nor is there any mention of these disorders on the Certificate of Death as contributing causes to the immediate cause of death of end stage dementia. Accordingly, the evidence fails to establish that that any of the Veteran's service-connected disabilities caused or contributed substantially or materially to his death. Inasmuch as the appellant claims that the Veteran's death is related to service, it is not shown that she possesses the medical expertise to provide such an opinion. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a layperson may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation of the Veteran's death extends beyond an immediately observable cause-and-effect relationship and, as such, laypersons are not competent to address etiology in the present case. The sole medical opinion of record instead determined that the Veteran's death was not proximately due to or the result of a service-connected condition and that there was "no evidence" indicating that any of the service connected residuals contributed, combined, aided or lent assistance to the cause of the death of the Veteran, which in this case was of nonservice-related end-stage dementia. In conclusion, based on the above analysis, a preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply, and the appeal must be denied. ORDER Service connection for the cause of the Veteran's death is denied. (CONTINUED ON THE NEXT PAGE) REMAND Although any further delay is regrettable, the Board finds the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318 must be remanded for additional development. In its July 2014 remand, the Board specifically requested that, following the accomplishment of certain development, "the Appellant's claims should be readjudicated. . . . If the claims remain denied, the Appellant and her representative should be issued a [supplemental statement of the case], and an appropriate period of time should be allowed for response." However, a review of the claims file, including the electronic records in Virtual VA and the Veterans Benefits Management System (VBMS), reflects that this was not accomplished with regard to the claim for DIC benefits under 38 U.S.C.A. § 1318. Rather, the August 2014 supplemental statement of the case issued by the AOJ only addressed the issue of entitlement to service connection for the cause of the Veteran's death. Accordingly, a supplemental statement of the case must be provided to the appellant with respect to the issue of entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) After undertaking any additional development deemed necessary, readjudicate the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 U.S. 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. 2013). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs