Citation Nr: 1613867 Decision Date: 04/05/16 Archive Date: 04/13/16 DOCKET NO. 08-30 075A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of all extremities, to include as due to exposure to herbicides, for accrued benefits purposes. 2. Entitlement to service connection for a skin disorder, to include rash on hands, and to include as due to exposure to herbicides, for accrued benefits purposes. 3. Entitlement to service connection for a psychiatric disorder, to include depression, dysthymic disorder, and posttraumatic stress disorder (PTSD), for accrued benefits purposes. 4. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. 5. Entitlement to service connection for the Veteran's cause of death. 6. Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. The Veteran died in September 2007, and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from determinations by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2012, the Board remanded the case for a hearing to be scheduled. All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. The appellant appeared before the undersigned Veterans Law Judge in an August 2014 travel Board hearing to present testimony on the issues on appeal and the transcript is of record. The Board notes that though the appellant did not file a timely substantive appeal as to the issue of entitlement to DEA benefits under Chapter 35, Title 38, of the United States Code, the issue was addressed in the August 2014 Board hearing and also readjudicated in a July 2013 supplemental statement of the case. Therefore, VA has taken actions that would lead the appellant to believe that the appeal was perfected, and this issue is before the Board at this time. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) In the January 2012 remand, the Board noted that the RO did not adjudicate the issues of entitlement to service connection for a psychiatric disorder for accrued benefits purposes, a skin disorder for accrued benefits purposes, and peripheral neuropathy for accrued benefits purposes in the February 2008 rating decision, and determined that the accrued benefits issues were not before the Board at that time. However, the February 2008 notice letter indicated that accrued benefits were denied, the appellant submitted her notice of disagreement as to the February 2008 determinations, and the RO then addressed these accrued benefits issues in the September 2008 statement of the case. In October 2008, she submitted a statement in lieu of a Substantive Appeal indicating that "[i]n support of my claim for benefits based on my deceased husband[]s claim, I am submitting a Optional Appeal Hearing form requesting a DRO review of my claim." Then, in the August 2014 Board hearing, the appellant's representative clarified that the appellant intended to perfect the appeals for entitlement to accrued benefits. Though the appellant's representative referred to a Form 9 in the Board hearing, the Board notes that the appellant's October 2008 statement may be accepted as timely documentation in lieu of a Form 9 as to the issues of entitlement to accrued benefits, given her reference to the claim for benefits based on her husband's claim. Therefore, the Board concludes that the issues of entitlement to service connection for accrued benefits purposes have been perfected and are before the Board at this time. The Board notes that substitution is not applicable in this case because the Veteran passed away prior to October 10, 2008, when the laws pertaining to substitution became effective. See 38 U.S.C.A. § 5121A. The issues of entitlement to service connection for a psychiatric disorder for accrued benefits purposes, a skin disorder for accrued benefits purposes, and peripheral neuropathy for accrued benefits purposes; entitlement to service connection for the Veteran's cause of death; and, entitlement to DEA benefits under Chapter 35, Title 38, of the United States Code, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran served on active duty from August 1963 to August 1967; he was not a former prisoner of war; at the time of the Veteran's death, he had no due, but unpaid, benefits to which he was entitled under existing ratings or decisions or based on other evidence that was on file when he died and for which he would have been continuously rated as totally disabled due to service-connected disabilities, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from service and for at least five years immediately preceding his death; nor would he have been in receipt of such compensation in either case, but for clear and unmistakable error in a prior decision which has not been established. CONCLUSION OF LAW The criteria for entitlement to DIC benefits under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with Prior Remand In January 2012, the Board remanded the claim for DIC benefits under 38 U.S.C.A. § 1318 and directed the AOJ to provide the appellant a hearing before a Decision Review Officer at the RO, and the AOJ did so in August 2012. The Veteran's claim was readjudicated in a July 2013 supplemental statement of the case. Therefore, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). DIC under 38 U.S.C.A. § 1318 Regarding the issues of entitlement to DIC benefits under 38 U.S.C.A. § 1318, the pertinent facts are not in dispute, and the appellant's claim is being denied solely due to lack of entitlement under the law, as discussed below. Therefore, there is no additional information or evidence that could be obtained to substantiate the claim, and discussion regarding the duties to notify and assist is not applicable. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001)). First, DIC under 38 U.S.C.A. § 1318 is payable to the surviving spouse of a deceased Veteran if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was (1) rated totally disabling for a continuous period of 10 or more years immediately preceding death; (2) rated as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or (3) rated totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. There is no argument by the Veteran during his lifetime or by the appellant that the Veteran would have been in receipt of compensation for a total evaluation for the statutorily required duration but for clear and unmistakable error in a previous decision. See 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22; see generally Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008) (holding that DIC benefits may not be awarded based on "hypothetical entitlement" for ten years preceding the Veteran's death). Further, even if the Board were to find service department records in existence at the time of a prior VA decision that were not previously considered by VA, there was no finally decided claim during the Veteran's lifetime that, if reopened on the basis of such service department records, would warrant awarding a total service-connected disability rating retroactively. Id. Because the Veteran had no service-connected disabilities at the time of death, he was not continuously rated as totally disabled for at least 10 years preceding his death in September 2007. Also, no total evaluation was continuously in effect since the date of his discharge from service in August 1967 and for at least five years immediately preceding his death in September 2007. Further, there is no evidence showing the Veteran was a former prisoner of war. Further, even if the appellant's appeals for entitlement to service connection for a psychiatric disability for accrued benefits purposes, a skin disability for accrued benefits purposes, and peripheral neuropathy for accrued benefits purposes, which have been remanded below, were to be granted at a future date, there is no possibility that such disabilities would be evaluated as totally disabling since service or since at least September 1997 because the Veteran submitted his first ever veterans disability benefits claim in 2006. See generally 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (providing the rules for assignment of effective dates for grants of benefits). Thus, even if the Board were to remand the claim for entitlement to DIC under 38 U.S.C.A. § 1318 as intertwined with the remanded claims for entitlement to service connection for accrued benefits purposes, there is no possible way that the remand will provide any new information to possibly substantiate the claim for DIC under 38 U.S.C.A. § 1318. As such, the Board concludes that such a remand is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). For these reasons, entitlement to DIC under 38 U.S.C.A. § 1318 is not warranted. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. Where the law is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). In denying the claim for entitlement to DIC benefits under 38 U.S.C.A. § 1318, the Board does not wish in any way to diminish the Veteran's service, which is shown by the record to have been meritorious. The Board is sympathetic to the appellant's claim; however, the Board is without authority to grant the claim on an equitable basis and is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. REMAND The Veteran argued during his lifetime that he had an acquired psychiatric disorder that was related to service and multiple reported in-service occurrences and stressors. During the appeal period before the Veteran's death, the records did show diagnoses of PTSD, dysthymic disorder, and depression. See e.g., May 2006 VA treatment record; June 2007 private psychiatric evaluation. There is also medical evidence of record that tends to indicate that the Veteran's psychiatric disorder may have been related to service. See id. However, it is unclear whether the Veteran's reported in-service stressors may be confirmed by credible evidence, given that it appears that the Veteran's complete service personnel files are not associated with the record. See e.g., July 2006 VA 21-3101 Request for Information (requesting only certain portions of the service personnel files). Therefore, attempts should be made to obtain the Veteran's complete service personnel files. A VA medical opinion should be obtained to determine the nature and etiology of an acquired psychiatric disorder, but only for purposes of rendering a decision as to the issue of entitlement to service connection for the Veteran's cause of death. See DeLaRosa v. Peake, 505 F.3d 1319 (Fed. Cir. 2009); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2009). The Veteran's certificate of death states that the Veteran died in September 2007 at his home. The immediate cause of death was pneumonia, with no indication as to the time of onset prior to death. The conditions leading to pneumonia were noted as cachexia and PTSD, and the underlying cause thereof was noted as Agent Orange/ dioxin exposure. Contributing causes for death, but not resulting in the underlying cause were noted as peripheral neuropathy and depression. The Veteran was not service-connected for a disability at the time of his death. Because service personnel records that may be outstanding may be obtained at a later time, and because the Board cannot state at this time whether obtaining such service personnel records may provide new information that would be relevant to the appeals of entitlement to service connection for a skin disability and peripheral neuropathy for accrued benefits purposes, the Board defers these matters and remands the same until attempts to obtain any outstanding service personnel records have been completed. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a); see also Ralston v. West, 13 Vet. App. 108, 113 (1999) (Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as service records) in the Veteran's claims folder when he died.) The appellant contends that the Veteran's psychiatric disorder, cachexia, peripheral neuropathy, and skin disorder were related to service, to include his presumed exposure to herbicides in Vietnam, and that such disabilities caused or contributed to his death. See August 2014 Board hearing transcript at p. 15-16; April 2013 appellant statement. Also, the appellant, through her representative, argues that the Veteran's alcohol dependence was secondary to an allegedly service-connected psychiatric disorder. See November 2011 Appellant's Brief (arguing that the Veteran's cachexia was due to alcohol dependence and that the Veteran's alcohol dependence was related to his psychiatric disorder). There are outstanding relevant private treatment records that have been identified, to include outstanding records from Dr. S. N., who signed the Veteran's death certificate, and attempts should be made to obtain them. 38 C.F.R. 3.159. The Board notes that evidence shows that the Veteran expressly asked Dr. S. N. to sign the Veteran's death certificate and to not do autopsy. See e.g., August 2014 Board hearing transcript at p. 14; October 2012 private treatment note from Dr. S. N. Further, for purposes of determining service connection for the Veteran's cause of death, a VA medical opinion should be obtained to determine whether the Veteran's peripheral neuropathy and skin disorder were etiologically related service, and, if a psychiatric disorder is found to be related to service, whether the Veteran's alcohol dependence was secondary to such psychiatric disorder and, if so, if alcohol dependence contributed substantially or materially to the Veteran's death. See DeLaRosa v. Peake, 505 F.3d 1319 (Fed. Cir. 2009); Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2009). The issue of entitlement to DEA benefits under Chapter 35, Title 38, of the United States Code is remanded as intertwined with the issue of entitlement to service connection for the Veteran's cause of death. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she submit or authorize the release of outstanding treatment records pertinent to the Veteran's psychiatric disorder, to include records pertaining to alcohol dependence, cachexia, peripheral neuropathy, and skin disability, to include records from the following: a. Dr. S. N. See October 2012 note from Dr. S. N. (stating that she began treating the Veteran in May 2007). b. The Veteran's emergency hospitalization at Weusthoff Hospital, Rockledge. See January 2007 Veteran statement. c. any other outstanding relevant private treatment provider. Request that she authorize the release of any non-VA treatment records. 2. Obtain the Veteran's complete service personnel records. See e.g., July 2006 VA 21-3101 Request for Information (requesting only certain portions of the service personnel files). If any of these records are found to be unavailable, this should be specifically noted in the claims file. 3. If, after making reasonable efforts to obtain any outstanding non-Federal records, the AMC is unable to secure same, or if after continued efforts to obtain any of the above Federal records, the AMC concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Appellant should be notified in accordance with 38 C.F.R. § 3.159(e). The appellant must then be given an opportunity to respond. 4. After completing the above development, obtain VA medical opinions regarding a psychiatric disorder, peripheral neuropathy, skin disorder, and cachexia. Make the claims file (including both Virtual VA/ VBMS) available to the examiner for review of the case. The examiner should note that this case review took place. Regarding psychiatric disorder: (a) Provide an opinion as to the nature and diagnosis(es) of the Veteran's psychiatric disability, to include an eating disorder, PTSD, depression, and dysthymic disorder. In so doing, opine whether the Veteran had a diagnosis of PTSD at any point from April 2006 until September 2007. See June 2007 private psychiatric evaluation. (b) If the Veteran had PTSD at any point from April 2006 until September 2007, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the PTSD was etiologically related to service, including as a result of fear of hostile military or terrorist activity. (c) Regarding any diagnosis other than PTSD, including depression and dysthymic disorder, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such psychiatric disorder other than PTSD was etiologically related to service. (d) Regarding any psychiatric disorder that is related to service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability) that any such disability contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to the production of death. The examiner's attention is invited to the Veteran's reports of in-service events, the Veteran's confirmed service in Vietnam, the Veteran's report that he had depression since service in Vietnam, and the medical evidence tending to indicate that the Veteran's diagnosed PTSD, dysthymia, and depression were related to his reported experiences in service. See e.g., October 2012 private treatment note from Dr. S. N.; the service treatment records showing that the Veteran was treated at the Tan Son Nhut Air Base in the Republic of Vietnam on August 20, 1966; VA treatment records in 2006 and 2007, and, the June 2007 private psychiatric evaluation. (e) If, and only if, a psychiatric disorder is related to service, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the Veteran's alcohol dependence was caused by a psychiatric disorder. If alcohol dependence was not caused by a psychiatric disorder, then provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's alcohol dependence was aggravated (i.e., permanently worsened) beyond the natural progress by a psychiatric disorder that is related to service. If aggravation is found, the examiner should address the following medical issues: a. the baseline manifestations of alcohol dependence found prior to aggravation; and b. the increased manifestations which, in the examiner's opinion, are proximately due to a psychiatric disorder. (f) If, and only if, a psychiatric disorder is related to service and alcohol dependence was caused or aggravated by a psychiatric disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's cachexia and/or peripheral neuropathy was caused by alcohol dependence. If cachexia and/or peripheral neuropathy was not caused by alcohol dependence, then provide an opinion as to whether it is at least as likely as not (probability of 50 percent) that the Veteran's cachexia and/or peripheral neuropathy was aggravated (i.e., permanently worsened) beyond the natural progress by alcohol dependence. If aggravation is found, the examiner should address the following medical issues: a. the baseline manifestations of cachexia and/or peripheral neuropathy found prior to aggravation; and b. the increased manifestations which, in the examiner's opinion, are proximately due to alcohol dependence. (g) Regarding peripheral neuropathy, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that the Veteran's peripheral neuropathy manifested in service or within the first year after his last exposure to herbicides, or was otherwise etiologically related to service, including as a result of presumed exposure to herbicides. (h) Regarding skin disorder, provide an opinion as to the nature and diagnosis(es) of the Veteran's skin disorder, to include dermatitis and purpuric lesions, at any point during the period from April 2006 to September 2007. In so doing, opine whether the Veteran's skin disorder constituted chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda. (i) If the Veteran had a skin disorder during that time that constitutes chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such skin disorder manifested in service or within the first year after the last date he was exposed to herbicides, or was otherwise etiologically related to service, including as a result of presumed exposure to herbicides. The examiner's attention is invited to service treatment record showing rash on hands in May 1965. (j) Regarding any diagnosis that does not constitute chloracne or other acneform disease consistent with chloracne, or porphyria cutanea tarda, including dermatitis and purpuric lesion, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such skin disorder was etiologically related to service, including as a result of in-service presumed exposure to herbicides or fungus on the hands. (k) Regarding cachexia, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such cachexia was etiologically related to service, including as a result of presumed exposure to herbicides. If cachexia was not related to service and if a psychiatric disorder is related to service, the examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such cachexia was caused by psychiatric disorder. See e.g,, April 2013 appellant statement. If cachexia was not related to service or caused by a psychiatric disorder, examiner is asked to opine whether it is at least as likely as not (probability of 50 percent) that such cachexia was aggravated (i.e., permanently worsened) beyond the natural progress by a psychiatric disorder. If aggravation is found, the examiner should address the following medical issues: a. the baseline manifestations of cachexia found prior to aggravation; and b. the increased manifestations which, in the examiner's opinion, were proximately due to a psychiatric disorder. (l) Regarding peripheral neuropathy, skin disorder, and cachexia, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability) that any such disability contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to the production of death. The examiner's attention is invited to the death certificate and the Veteran's wife's reports of the Veteran's rash and bumps on his extremities. See August 2014 Board hearing transcript at p. 15. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. If the examiner is unable to provide a requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific disease can possibly cause the claimed condition, or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) 5. After completing the development and conducting any additional development that is deemed warranted, readjudicate the claims on appeal. If a matter is not resolved to the appellant's satisfaction, furnish the appellant and her representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs