Citation Nr: 1525469 Decision Date: 06/15/15 Archive Date: 06/26/15 DOCKET NO. 14-13 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Service connection for ischemic heart disease as a result of Agent Orange exposure for the purpose of eligibility for accrued benefits. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. He died in February 1991. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 RO rating decision. The appellant and her son presented testimony before the Board in June 2015. A transcript of that hearing is associated with the claims file. 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. New and material evidence has been received pertaining to the issue of service connection for the cause of the Veteran's death. 2. The Certificate of Death identifies the Veteran's immediate cause of death as stroke due to hypertension with an underlying cause of atrial fibrillation. 3. The evidence tends to make it likely that the Veteran's combat service in Vietnam contributed to his death. 4. A claim of service connection for IHD was not pending at the time of the Veteran's death. CONCLUSIONS OF LAW 1. Because evidence received since September 2008 is new and material, the claim of service connection for the cause of the Veteran's death is reopened. 38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.156 (2014). 2. The criteria to establish service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2014). 3. The criteria to establish entitlement to service connection for IHD for accrued benefits purposes are not met. 38 U.S.C.A. § 5121(a) (West 2014); 38 C.F.R. § 3.1000(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the claim for the cause of the Veteran's death is being granted. Therefore, all duties to notified and assist are deemed to have been met. With regard to the claim for accrued benefits, the appellant was sent a letter in February 2010 specifically providing the necessary information relating to her claim. See 38 U.S.C.A. § 5103. A case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014; Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. With regard to the duty to assist, a claim for accrued benefits is adjudicated based on evidence in the file at the date of the Veteran's death. See 38 U.S.C.A. § 5121; Reliford v. McDonald, 27 Vet. App. 297, 302 (2015). Therefore, the duty to assist does not apply. See Reliford, 27 Vet. App. at 302. Unique to this appeal, however, it is clear that the evidence in the file at the date of the Veteran's death is incomplete because his original file was lost and then rebuilt incompletely. In this regard, the appellant was sent a notice letter in October 2009 informing her of this fact. The letter asked that she "Please submit any correspondence copies of ratings or applications previously submitted." She responded by submitting additional records, and the file otherwise shows that all reasonable efforts were made to rebuild the claims file. Accordingly, the Board finds that all reasonable efforts were made to assist the appellant in this appeal. See 38 C.F.R. § 3.159(c) (2014). Furthermore, a Board hearing was held in June 2015, and this hearing focused on the issues involved in the appeal, including establishing service connection for IHD. See Board Hr'g Tr. 4. The undersigned and the Veteran's counsel were precluded by law from exploring the question of whether additional evidence favorable to the accrued benefits appeal remained outstanding. See 38 C.F.R. § 3.1000. The Board concludes all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488 (2010), have been met. For the above reasons, the Board finds the duties to notify and assist have been met, and it may consider these claims at this time. II. Analysis A. DIC The Veteran died in February 1991. The appellant maintains that the causes of his death were related to his service. This claim was previously denied in December 2006 and September 2008. Since that time, additional pertinent evidence has been received, including the appellant's Board hearing testimony. Accordingly, the issue is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to the Veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2003). Compensation for aggravation by a service-connected condition includes death benefits if it can be shown that the non-service-connected disability was aggravated to the degree that it contributed substantially or materially to the production of death, combined to cause death, or aided or lent assistance to the production of death. El-Amin v. Shinseki, 26 Vet. App. 136, 138-39 (2013). In this case, the Certificate of Death identifies the Veteran's immediate cause of death as stroke due to hypertension with an underlying cause of atrial fibrillation. At the time of his death, none of the conditions listed on the Certificate of Death was service-connected. According to an October 2009 VCAA notice letter, the Veteran was service-connected for hyperthyroidism, a splenectomy, and flatfeet at the time of his death. His claims file, by comparison, includes a decision sent to him during his lifetime. It is undated, but was likely issued during the early 1980s (the Board is inferring this based on a determination made therein regarding his income during the year 1979). This decision states "[s]ervice connection is established for your healed ulcer of the right great toe, shrapnel wound of the right inner leg, and arthritis of the left foot." Thus, there is no indication that stroke, hypertension, or atrial fibrillation was a service-connected disability at his death. The Board notes that the Veteran's original claims file was lost and had to be rebuilt. According to a November 2006 notice letter, "not all records have been associated with the rebuilt claims folder." Accordingly, there is no definitive basis to establish what was service-connected at his death. However, the October 2009 VCAA letter and the earlier (undated) decision make it unlikely that any medical condition listed on the Certificate of Death was service-connected. This notwithstanding, the evidence makes it likely that a disease of service origin had a role in hastening the Veteran's death. It is undisputed that he served in the Republic of Vietnam from November 1966 to October 1968. His DD Form 214 shows that he was awarded a Purple Heart medal for his Vietnam service. The appellant maintains that the Veteran had undiagnosed mental health problems as a result of his Vietnam service. See Board Hr'g Tr. 21. At her Board hearing, she testified that he would not seek treatment for his medical conditions as a consequence of his mental health problems. See Board Hr'g Tr. 10. For purposes of this determination, the appellant is deemed competent and credible to make these inferences. See, e.g., Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In August 1991, a private doctor informed the appellant that "stress and emotional difficulties can cause the blood pressure to be higher than expected." Thus, the evidence tends to indicate that the Veteran's traumatic experiences ultimately contributed to his death. Moreover, the appellant testified at her Board hearing that a Veteran's doctor "told me that [the Veteran's] exposure to Agent Orange was a factor" in his death. Board Hr'g Tr. 16. Again, she is deemed competent and credible to relate this doctor's opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). By resolving all reasonable doubt in the appellant's favor, the Board will find that this evidence is in a state of relative equipoise in establishing all material facts of the claim, to include the nexus element, both on a direct and secondary basis. See El-Amin, 26 Vet. App. at 138-39. Accordingly, the claim for DIC benefits must be granted. B. Accrued The appellant has also filed a claim for accrued benefits. Periodic monetary benefits authorized under laws administered by VA, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person. See 38 C.F.R. § 3.1000(a). Application for accrued benefits must be filed within 1 year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include claim for any accrued benefits. 38 C.F.R. § 3.1000(c). In order to establish entitlement to accrued benefits, the VA claimant who died must have had a claim pending at the time of death or be entitled to benefits under an existing disability evaluation or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). In this case, the Veteran's file has been rebuilt. As noted herein above, a November 2006 notice letter to the appellant stated that "not all records have been associated with the rebuilt claims folder." Nonetheless, the record is reasonably complete to determine that a claim was not pending at the time of his death. First, an undated determination, most likely issued in the 1980s, shows that the RO denied the Veteran's claim of service connection for "heart disease" during his lifetime. Next, the RO sent the appellant a letter in February 1992, which informed her that "We have received a claim for benefits based on [Agent Orange]." Because this letter was sent to the appellant instead of the Veteran, the presumption of regularity would compel a finding that the RO was sending the letter in response to a claim filed by the appellant and not the Veteran. See Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). Therefore, there is no basis to conclude that a claim of service connection for a heart condition was pending at the time of the Veteran's death. As a final matter, the Board notes that copies of the Veteran's service records were associated with the claims file in December 2010. These records are not directly relevant to a claim of service connection for IHD as they do not pertain to that medical condition or otherwise add any further relevant information to the record. See 38 C.F.R. § 3.156(c); Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014) (§ 3.156(c) did not apply where additional service department information only confirmed facts that "were never in question.") Moreover, the service department notified VA at that time that it had previously furnished STRs in October 1977 in response to a request from the RO. This makes it likely that such information was already of record when the prior claim of service connection for "heart disease" was denied in the 1980s. See 38 C.F.R. § 3.156(c) (1) (2014). Accordingly, reconsideration of the Veteran's earlier claim cannot be undertaken pursuant to 38 C.F.R. § 3.156(c). In conclusion, because a claim of service connection for IHD was not pending at the Veteran's death, the appeal for accrued benefits must be denied. See Jones, 136 F.3d 1299. There is no reasonable doubt as to any material issue of factor or law to resolve on this issue. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for cause of the Veteran's death, the claim is reopened. Service connection for the cause of the Veteran's death is granted. Service connection for ischemic heart disease for accrued purposes is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs