Citation Nr: 1511759	
Decision Date: 03/19/15    Archive Date: 04/01/15

DOCKET NO.  13-29 270	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

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

2.  Whether the Veteran's son may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to Department of Veterans Affairs benefits.


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active military service from April 1962 to July 1964 and had additional service in the Naval Reserves and Army National Guard.  He died in August 2005.  The appellant is his surviving child.  She appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied her claim of entitlement to service connection for the cause of the Veteran's death.  Additional rating decisions in July and October 2012 confirmed and continued the denial of this cause-of-death claim.  The RO in Los Angeles, California, however, certified this appeal to the Board.  And in October 2014, in support of her cause-of-death claim, the appellant testified at a videoconference hearing streamed from that RO before the undersigned Veterans Law Judge (VLJ) of the Board.  A transcript of the proceeding is of record.

This appeal was partly processed electronically using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record, also any records that may be additionally maintained in the Veterans Benefits Management System (VBMS).

The Board advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


The Board also sees that the July 2012 rating decision granted benefits for the appellant's twin brother (the Veteran's son) based upon his status as a helpless child, retroactivelyi effective from February 7, 2012.  But the August 2013 statement of the case (SOC) promulgated as part of this appeal included a section addressing the additional issue of entitlement to death pension.  In this section was a statement that the information provided in the July 2012 rating decision was erroneous, and that entitlement to these additional benefits as a helpless child is not warranted without the requisite wartime service for pension purposes.  In her October 2013 substantive appeal (on VA Form 9), also more recently during her October 2014 videoconference hearing before the Board, the appellant indicated she was appealing all issues and made specific reference to the care that the Veteran's son required as a helpless child.  She therefore has begun, albeit not completed, an appeal to the Board concerning this additional issue of whether the Veteran's son may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits.  The Board therefore is REMANDING this additional claim to the Agency of Original Jurisdiction (AOJ), whereas the Board, instead, is going ahead and deciding the cause-of-death claim since the appeal of this claim has been completed ("perfected"), not just initiated.


FINDINGS OF FACT

1.  The Veteran died in August 2005.  His death certificate lists the immediate cause of his death as asystolic arrest due to hyperkalemia, due to renal failure, due to diabetes mellitus type II.  Dementia, chronic obstructive pulmonary disease (COPD), a history of stroke, and recent Methicillin-resistant Staphylococcus aureus (MRSA) bacteremia were listed as conditions contributing to death but not associated with the underlying cause.

2.  At the time of his death, service connection was not in effect for any disability.

3.  The most competent and credible, therefore most probative, evidence does not establish the Veteran's death was related to or the result of his military service.


CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for the cause of the Veteran's death.  38 U.S.C.A. §§ 1131, 1310, 1313, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising her of the information and evidence VA will obtain and of the information and evidence she is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For claims for Dependency and Indemnity Compensation (DIC), so including for the cause of a Veteran's death, VCAA notice must include:  (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of death; (2) an explanation of the evidence and information required to substantiate the 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, 352-53 (2007).

The record on appeal (ROA) includes a March 2012 submission from the appellant acknowledging that she was notified of the information and evidence needed to support her claim.  However, a copy of the specific notice letter sent to her is not currently associated with the claims file.  To the extent she may not have been provided the required notice, the Board observes that, at no point has she contended that any notice error occurred, much less that it is prejudicial, versus harmless, so as to in turn be considered unduly harmful and outcome determinative of her claim.  See generally Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009) (indicating she has this pleading-and-proof obligation).  In addition, the Veteran did not have any adjudicated service-connected disabilities at the time of his death, and therefore the appellant is not prejudiced by not being informed of any such conditions or how to establish entitlement to service connection for the cause of his death based on such nonexistent conditions.  Furthermore, in her pleadings, also her hearing testimony, she has demonstrated her actual knowledge of the evidence needed to establish her entitlement to service connection for the cause of the Veteran's death based on conditions she herself realizes not yet service connected.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim).  As specific examples, she evidenced this knowledge in oral testimony offered during her May 2013 RO hearing and October 2014 videoconference hearing before the Board.  As such, the Board finds that no useful purpose would be served by delaying appellate review of this claim to send out an additional notice letter.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not have any useful or meaningful purpose or result in any significant benefit to the claimant).

VA also has a duty to assist the appellant in obtaining potentially relevant records and a medical opinion when necessary to make a decision on the claim.  This additional obligation does not apply if there is no reasonable possibility the assistance would aid in substantiating the claim.  To this end, the Veteran's service treatment records (STRs), service personnel records (SPRs), and identified post-service private treatment records have been obtained and associated with his claims file for consideration.

No medical opinion has been obtained in response to this appellant's claim.  VA's duty to provide an examination or opinion under 38 U.S.C.A. § 5103A(d) is limited to claims for "disability compensation" and does not apply to DIC or cause-of-death claims.  Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1321-22 (Fed. Cir. 2008).  VA must still "make reasonable efforts," however, to assist claimants in obtaining evidence necessary to substantiate their claims, and in a cause-of-death case these efforts may include obtaining a VA medical opinion.  38 U.S.C.A § 5103A(a)(1); Wood, 520 F.3d at 1348; DeLaRosa, 515 F.3d at 1322.  Here, though, the competent and credible evidence of record does not suggest that the conditions that either caused or contributed substantially or materially to the Veteran's death might possibly be related to his prior military service such that further medical comment concerning this is necessary prior to deciding this claim.

Finally, as concerning the Appellant's hearings before the Board and RO, they were appropriately conducted as the presiding VLJ and hearing officer duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

II.  Service Connection for the Cause of the Veteran's Death

To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.

A 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).  There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).

A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312(c).  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.  Id.

More generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disability diagnosed after discharge when the evidence, including that pertinent to service, establishes the disability was incurred in service.  38 C.F.R. § 3.303(d).

With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, or this is legitimately questionable, then generally a showing of continuity of symptoms after service is required to support the claim.  38 C.F.R. § 3.303(b).  This provision however applies only to the chronic diseases specifically enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection for certain diseases such as diabetes mellitus and cardiovascular-renal disease also may be established on a presumptive basis by showing that such a disease manifested to a compensable degree, usually meaning to a degree of 10 percent or more, within one year of the date of the Veteran's separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have incepted in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307(a).  This presumption is rebuttable by affirmative evidence to the contrary, however.

The Veteran served on full-time active duty (AD) from April 1962 to July 1964, but also had additional periods of Reserve and National Guard service.  Active military, naval, or air service includes not only AD, but also any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, though not also disease, incurred in or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (23), (24), 106; 38 C.F.R. §§ 3.6(a), (d).  See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505.  38 U.S.C.A. § 101(23) ; 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

To the extent the appellant is alleging the Veteran died as a result of injury or disease incurred or aggravated during his time in the Reserves or National Guard, it must be remembered that only  "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a).  Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, it must be established that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  The same is true for establishing entitlement to compensation for disability from injury, though not also disease, incurred or aggravated during his INACDUTRA.  Id.


Presumptive periods do not apply to ACDUTRA or INACDUTRA, only instead to AD. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Therefore, favorable application of 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence) is not available for these additional periods of service.  The same holds true as concerning the presumptions of soundness and aggravation.

Turning now to the relevant evidence in this case, the Veteran died in August 2005.  His death certificate lists the immediate cause of his death as asystolic arrest (which had its onset just minutes before his death) due to hyperkalemia (which had its onset just days before his death), due to renal failure (which had its onset just months before his death), due to diabetes mellitus type II (which had incepted years before death).  Dementia, COPD, a history of stroke, and then recent MRSA bacteremia were listed as conditions contributing to death but not associated with the underlying cause.

Unfortunately, the Veteran's STRs do not reflect any complaints, treatment, or diagnoses possibly referable to any of the above-listed conditions.  An April 1962 enlistment examination and July 1964 separation examination from his period of active service reflect no significant abnormalities.  Additional examinations were done in April 1975, August 1981, and October 1985, as part of his additional service in the Reserves and National Guard.  And the reports of all of those additional examinations also reflect normal findings.  Reports of Medical History associated with each of those examination reports show the Veteran attested to being in "good health."  Although he also reported a positive history of ailments such as broken bones, weight gain, and hearing loss, he did not indicate a history of any symptoms that may be related to the conditions mentioned on his death certificate as causing or contributing substantially or materially to his unfortunate passing.


In addition to showing that the conditions associated with the Veteran's death did not initially manifest during his service, these STRs also show that chronic conditions such as diabetes mellitus and cardiovascular-renal disease did not alternatively initially manifest to the required compensable degree within one year of his discharge from active service in July 1964 to, in turn, warrant presuming they were incurred during that service.  Indeed, his post-service treatment records do not document any of the conditions associated with his death until March 1996, more than 30 years after conclusion of his AD service and even more than 10 years after any subsequent (so more recent) Reserve or National Guard service, when records show diagnoses of diabetes mellitus and cerebrovascular accident (i.e., stroke).  Subsequently-generated records also show diagnoses of renal insufficiency, dementia, MRSA bacteremia, and COPD.

The appellant has asserted that the Veteran's conditions are the result of exposure to Agent Orange in Vietnam during his service.  See Board Hearing Transcript at 4.  A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iii).  If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases, including diabetes mellitus type 2, shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service.  38 C.F.R. § 3.309(e).

In this case, however, the Veteran's military personnel records do not reflect service in Vietnam or other overseas location.  The DD Form 214 generated after his period of active service, as well as his Reserve and National Guard records, do not show any foreign or sea service.  Notwithstanding the appellant's assertions to the contrary, this evidence indicates he did not have any service in Vietnam and is not presumed to have been exposed to Agent Orange or other herbicide agents.

Without this required proof of said exposure to Agent Orange during service, there necessarily cannot be any consequent disability, so including in the way of the several conditions listed on the certificate of death as either the principal or contributory cause of death.

In sum, the Veteran was not diagnosed with any of the conditions associated with his death until many years after service, and there is no competent and credible evidence (so probative or persuasive evidence) otherwise attributing these conditions to his military service - including especially to exposure to Agent Orange, especially since he is not shown to have had that type of hazardous activity in relation to his service.  Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); and McCartt v. West, 12 Vet. App 164, 167 (1999).  The terminal conditions are not associated with herbicides inasmuch as he had no such exposure.  There remains no basis upon which these conditions causing or contributing substantially or materially to his death can be attributed to his service.  Therefore, service connection for the cause of his death is not warranted.


ORDER

The claim of entitlement to service connection for the cause of the Veteran's death is denied.



REMAND

As already alluded to, a July 2012 rating decision granted benefits for the appellant's twin brother (the Veteran's son) based upon his status as a helpless child, effective from February 7, 2012.  The record shows the appellant is her brother's conservator.  However, the August 2013 SOC included a statement that the information provided in the July 2012 rating decision was erroneous, and that entitlement to such benefits as a helpless child is not warranted without the requisite wartime service for pension purposes.  In her October 2013 substantive appeal (on VA Form 9), the appellant indicated she was appealing all issues list in the preceding SOC and made specific reference to the care that the Veteran's son required.  She more recently reiterated this during her October 2014 videoconference hearing before the Board.

Because the August 2013 SOC rescinded the benefits previously awarded, the appellant's substantive appeal can be construed as a notice of disagreement (NOD) with that decision.  See 38 C.F.R. § 20.201 (any communication expressing dissatisfaction with an RO decision and a desire to contest the result constitutes a valid NOD; special wording is not required).  See also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes [an NOD]") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)).  However, the RO has not provided her an SOC concerning this other claim, and the appropriate disposition in this circumstance is to remand, rather than merely refer, the claim.  Manlincon v. West, 12 Vet. App. 238 (1999).  She then will have opportunity, in response, to also file a timely substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect her appeal of this other claim to the Board.  38 C.F.R. § 20.200.


In readjudicating this additional claim, the AOJ should note that VA is bound by RO decisions, where the decision was an authentic product of the RO adjudicative process, contains content typical of RO rating decisions, and where the RO provided notice of decision to the claimant consistent with the statute and regulation governing decisional notice.  Sellers v. Shinseki, 25 Vet. App. 265, 279 (2012).  In such circumstances, a subsequent RO decision may be void ab initio where it was not based on a finding of new and material evidence, it was not based on a finding of clear and unmistakable error (CUE) in the prior decision, and where the RO did not follow established procedures for revoking a prior decision.  Id.  See also 38 C.F.R. § 3.105(a) (previous determinations that are final and binding will be accepted as correct in the absence of CUE).

Accordingly, this claim 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.)

Provide the appellant an SOC concerning this additional claim of whether the Veteran's son may be recognized as a "helpless child" based on permanent incapacity for self-support prior to attaining the age of 18 for the purpose of entitlement to VA benefits.  Also advise her that she will need to file a timely substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect her appeal of this additional claim to the Board.  38 C.F.R. §§ 20.200, 20.302(b).  Only if she perfects her appeal of this additional claim should it be returned to the Board for further appellate consideration. 

The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 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 2014).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs