Citation Nr: 1504533 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 13-30 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Snabb, Associate Counsel INTRODUCTION The Veteran had active service from February 1945 to December 1946. The Veteran died in November 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul Minnesota. Jurisdiction over this claim is currently with the Regional Office (RO) in Portland, Oregon. In November 2014, the appellant presented testimony relevant to the appeal at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board has reviewed the Veteran's physical claims file, as well as the electronic files on the "Virtual VA" system and Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. 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 2014). FINDINGS OF FACT 1. The Veteran died in November 2011. 2. The Veteran's death certificate lists pneumonia and aspiration as the immediate cause of death, with dementia, coronary artery disease, and history of stroke listed as significant conditions contributing to the death. 3. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling. 4. The service-connected PTSD did not substantially or materially contribute to the cause of the Veteran's death. 5. The cause of the Veteran's death was not causally or etiologically related to service or a service-related disability. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.301, 3.303, 3.312 (2014). 2. The criteria for DIC benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of a veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or a supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). With respect to the claim of entitlement to DIC under 38 U.S.C.A. § 1318, it is the law, and not the facts, that is dispositive of the appeal; therefore, the duties to notify and assist imposed by VCAA are not applicable to that claim. Mason v. Principi, 16 Vet. App. 129, 132 (2002). With respect to the claim for service connection for cause of death, in the February 2012 notice letter sent prior to the initial denial of the claim, the RO advised the appellant of what the evidence must show to establish entitlement to dependency and indemnity compensation and described the types of information and evidence that the appellant needed to submit to substantiate the claim for service connection for the cause of the Veteran's death. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the appellant's behalf in support of the claim. The RO further informed the appellant how VA determines the effective date once a claim for death benefits is granted. The February 2011 notice letter also fully complied with Hupp notice requirements. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim, and there is no outstanding duty to inform the appellant that any additional information or evidence is needed. As noted above, the appellant testified at a November 2014 videoconference Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VA employee who conducts a hearing fulfill two duties to comply with the above the regulation: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the appellant's assertions were discussed in detail. In this case, during the Board hearing, the Veterans Law Judge advised the appellant as to the issues on appeal. The Veterans Law Judge specifically noted that the February 2012 private opinion and August 2013 affidavit for correction did not provide rationales. The Veterans Law Judge stated that he highly recommended that the appellant get another medical opinion that stated exactly how the PTSD contributed to the cause of death and notified the appellant that a medical opinion that does not contain a rationale does not have any weight. A hold was placed on the case for 60 days in order to give the appellant time to obtain a new opinion; however, no such evidence has been received. For these reasons, the duty to suggest the submission of overlooked or missing evidence was fulfilled. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has either identified any prejudice in the conduct of the Veterans Law Judge. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can adjudicate the claims based on the current record. Regarding VA's duty to assist in claims development, the Federal Circuit has held that 38 U.S.C.A. § 5103A (a) applies to DIC claims. Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (a)(1). However, VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the service treatment records (STRs) are fire-related and unavailable for review. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, the heightened duty to assist has been met. In August 1990, the AOJ requested the Veteran's STRs. The response was that the STRs were fire-related and unavailable. In December 1990, the AOJ provided notice of the unavailability of records in accordance with 38 C.F.R. § 3.159(e). In light of the foregoing, the Board finds that further efforts to obtain the missing STRs would be futile. The record contains all available evidence pertinent to the appeal. VA has requested records identified throughout the claims process, and negative responses are of record. The appellant was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the appeal, and the record contains sufficient evidence to make a decision on the appeal. Pertinent post-service treatment records adequately identified as relevant to the appeal have been obtained or otherwise submitted and are associated with the record. Also, a VA medical opinion based on review of the record was obtained in September 2013. The September 2013 VA psychologist provided an opinion based on an accurate medical history, to include consideration of the Veteran's past complaints, diagnoses, and treatment. In consideration thereof, the Board finds that the VA psychologist had adequate facts and data regarding the history and severity of the Veteran's disability when rendering the medical opinion. The September 2013 VA psychologist provided an opinion on the likelihood of a relationship between the service-connected PTSD and the Veteran's death and supported the medical opinion with adequate rationale. For these reasons, the Board finds that the September 2013 VA opinion is adequate and no further medical opinion is needed. The case law does not lower the legal standard for proving a claim for service connection in a case of missing service records, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant, that is, a heightened duty to explain it reasons and bases. See Russo v. Brown, 9 Vet. App. 46 (1996). The appellant has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required. In view of the foregoing, the Board will proceed with appellate review. Service Connection for Cause of Death Legal Criteria Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly autopsy reports. 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of death, generally, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. The service-connected disability will be considered as the principal (primary) cause of death when such 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). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service Connection for Cause of Death Analysis The appellant asserts that the PTSD led the Veteran to "give up," which in turn led to his death. On the March 2012 Notice of Disagreement, the appellant also wrote that the Veteran was in Hiroshima and Nagasaki following the atomic bomb denotation at Hiroshima, without specifying how she contends this ionizing radiation exposure may be connected to the Veteran's death. The appellant has advanced no other theory of entitlement to service connection for the cause of the Veteran's death other than the contribution of PTSD, and no other theory of entitlement is raised by the record. There is no evidence to suggest that any of the disabilities listed on the death certificate as the causes of the Veteran's death were incurred during service or are due to radiogenic disease. See 38 C.F.R. § 3.311 (2014). The death certificate assessed that the approximate interval between the onset of pneumonia and death was 18 days. A May 2011 VA Medical Center (VAMC) treatment record indicates the Veteran had age-related dementia. A January 2009 VAMC treatment record notes a history of stroke beginning in 2007. For these reasons, the analysis below is focused solely on the theories of entitlement that have been advanced by the appellant. 38 U.S.C.A. § 7104 (West 2002) (Board is to decide actual questions of law and fact in a case before it); see Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). After review of the lay and medical evidence of record, the Board finds that the evidence weighs against finding that the Veteran's PTSD was a principal or contributory cause of the Veteran's death. At the time of the Veteran's death, service connection was in effect for PTSD, rated at 70 percent. The death certificate reveals that the Veteran died in November 2011 of pneumonia and aspiration, with other significant conditions contributing to death of dementia, coronary artery disease, and history of stroke. The appellant submitted a February 2012 statement from a private physician that states that the Veteran had been treated for PTSD prior to his death; however, the physician does not opine as to whether PTSD was etiologically related to the cause of the Veteran's death. The appellant also submitted an August 2013 affidavit for correction from the private physician which amends the death certificate to add PTSD as a significant condition contributing to the death; however, the private physician does not provide a rationale for this conclusion. The September 2013 VA psychologist opined that the service-connected PTSD did not have a causal connection to the cause of the Veteran's death. In support of the medical opinion, the September 2013 VA psychologist noted that PTSD is not generally a causal connection to death and there were no records available that suggested atypical circumstances indicating that the Veteran's PTSD substantially contributed to the reason that he died. The September 2013 VA psychologist also acknowledged that there was of record a statement and affidavit for correction from a private physician which opined that PTSD was a significant condition that contributed to the Veteran's death, but noted that there was no rationale as to how the private physician made this conclusion. The Board assigns more probative weight to the medical opinion provided by the September 2013 VA psychologist who provided a clear rationale. In contrast, the private physician provided no rationale and only bare conclusions in the August 2013 affidavit for correction; therefore, the Board affords the affidavit no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Although the appellant has asserted that the Veteran's death was causally related to the PTSD, as a lay person, she does not have the requisite medical training or credentials in this specific case to be able to render a competent medical opinion regarding the cause of the Veteran's death and its relationship to the PTSD. The cause of the Veteran's death is a complex medical etiological question dealing with the origin and progression of the aspiration pneumonia, dementia, coronary artery disease, and history of stroke. Such opinion in this case involves knowledge of the complex relationship between psychological disorders and physical body systems. Thus, while the appellant is competent to relate symptoms demonstrated by the Veteran that she observed at any time, she is not competent to opine on whether there was a link between the Veteran's death and the PTSD because such medical opinion requires specific medical knowledge and training. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). The competent medical opinion evidence weighs against finding that there is a substantial or material causal relationship between the service-connected PTSD (a psychiatric disorder) and the Veteran's death (due to physical causes). For these reasons, the appellant's unsupported lay statement is of no probative value and, further, is outweighed by the competent medical opinion evidence. Regarding the appellant's contention that the Veteran was in Hiroshima and Nagasaki following the atomic bomb denotation at Hiroshima, the Board finds that the Veteran was exposed to radiation while on active duty. A November 1998 Defense Threat Reduction Agency (DTRA) correspondence confirmed that a review of Army historical records confirmed the Veteran's presence in the Hiroshima area during the American occupation of Japan. The DTRA found that a scientific dose reconstruction confirmed the Veteran could have had radiation exposure to a dose of less than 0.001 rem. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c) (West 2014); 38 C.F.R. § 3.309(d). Neither PTSD nor any of the disabilities listed on the death certificate (i.e., pneumonia, aspiration, dementia, coronary artery disease, and history of stroke) are disabilities which will be presumptively service connected for radiation-exposed veterans. Id. The second avenue for service connection is through 38 C.F.R. § 3.311(b)(2) (2014). This provision provides that certain listed "radiogenic" diseases found five years or more after service in an ionizing-radiation-exposed veteran may be service connected if VA's Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Neither PTSD nor any of the disabilities listed on the death certificate (i.e., pneumonia, aspiration, dementia, coronary artery disease, and history of stroke) are radiogenic diseases. See 38 C.F.R. § 3.311(b). In consideration of the foregoing, the Board finds that there is no disability of record that is subject to service connection on the basis of ionizing radiation. The third method for establishing service connection for a disability is direct service connection, which can be established by showing, notwithstanding the presumptions and procedures discussed above, that the disability was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As discussed above, there is no evidence to suggest that any of the disabilities listed on the death certificate as the causes of the Veteran's death were incurred or aggravated during service. Moreover, to the extent the appellant has implied that there may be a relationship between the Veteran's in-service radiation exposure, she has not put forth any competent evidence regarding such relationship. Her own (implied or liberally construed) statements do not constitute the required medical opinion to show that the Veteran's death was substantially or materially related to the in-service radiation exposure. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person may testify as to radiation exposure but is not competent to diagnose or make a competent nexus opinion regarding radiation exposure about a disorder as complex as cancer); Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the appeal of service connection for the cause of the Veteran's death; consequently, the appeal must be denied. Because the preponderance of the evidence is against the appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. DIC under 38 U.S.C.A. § 1318 VA pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran's release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b). For purposes of 38 U.S.C.A. § 1318, "entitled to receive" means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22. The Board find that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are not met. The evidence of record does not reflect that the Veteran was a POW. Furthermore, the Veteran separated from service in December 1946 and was service connected for PTSD effective November 27, 1998 and individual unemployability effective June 12, 2002. The Veteran was not service connected for any other disabilities; therefore, the Veteran was not rated 100 percent disabled for the five years immediately following service separation. The Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death. The Veteran died on November [redacted], 2011. The Veteran was service connected for PTSD rated at 70 percent, effective November 27, 1998, and had a total disability rating based on individual unemployability, effective June 12, 2002; therefore, it is not legally possible to establish a 100 percent rating for a 10 year period to meet the eligibility requirement for DIC 38 U.S.C.A. § 1318. For these reasons, DIC under 38 U.S.C.A. § 1318 is precluded. Per application of Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assigned a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C.A. § 1318, also known as "hypothetical entitlement." Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) was not continuously rated totally disabled since release from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C.A. § 1318 have not been met; therefore, the appellant's claim for compensation under 38 U.S.C.A. § 1318 is without legal merit. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the Veteran's death is denied. The appeal for DIC under 38 U.S.C.A. § 1318, being without legal merit, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs