Citation Nr: 1620005 Decision Date: 05/17/16 Archive Date: 05/27/16 DOCKET NO. 09-38 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to 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 (West 2014). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran, who died in July 2007, served on active duty from June 1965 to June 1967. The appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2007, VA received the appellant's claim for "Dependency and Indemnity Compensation," which includes consideration of her entitlement to service connection for cause of death and entitlement to compensation benefits under 38 U.S.C.A. § 1318. The appellant submitted a notice of disagreement as to the RO's denial of DIC benefits in September 2008; the RO issued a statement of the case (SOC) as to the appellant's entitlement to service connection for the cause of the Veteran's death and entitlement to DIC under 38 U.S.C.A. § 1318 in September 2009; and the appellant perfected her appeal as to all issues identified in the September 2009 SOC by way of an October 2009 substantive appeal (VA Form 9). Thus, although the RO identified the issue of service connection for cause of death as the only issue on appeal in a July 2014 supplemental statement of the case, the Board accepts the issues listed on the title page as within its appellate jurisdiction. Evans v. Shinseki, 25Vet. App. 7 (2011); Percy v. Shinseki, 23 Vet. App. 37 (2009). The matter of the appellant's entitlement to service connection for the cause of the Veteran's death was remanded in March 2014 to provide adequate notice of the evidence needed to substantiate the appellant's claim, associate outstanding VA treatment records with the claims file, and obtain a VA medical opinion. As discussed below, additional development is required, and thus, discussion of VA's compliance with the March 2014 remand is not necessary at this time. Stegall v. West, 11 Vet. App. 268 (1998). In July 2015, the appellant made a motion to advance her appeal on the Board docket. Good cause having been shown, 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). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, a remand of the appellant's claims is necessary to ensure that due process is followed and there is a complete record upon which to decide those claims so that she is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A remand is necessary to obtain another medical opinion with regard to the appellant's claim for service connection for the cause of the Veteran's death and readjudicate her claim for DIC under 38 U.S.C.A. § 1318 in light of a new theory of entitlement. Entitlement to Service Connection for Cause of Death Generally, DIC is available to a surviving spouse who can establish, among other things, that the Veteran died from a disability of service origin. 38 U.S.C.A. § 1310 (West 2014). Service connection for the cause of the Veteran's death may be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a) (2015). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). As stated previously, the Veteran died in July 2007. The official Certificate of Death indicates that the immediate cause of the Veteran's death was non-small cell carcinoma; the underlying causes of death that led to the immediate cause of death were cardiomyopathy and mitral regurgitation; and another significant condition that contributed to death but did not result in the underlying cause of death was "multiple sclerosis per family." At the time of his death, service connection was in effect for multiple sclerosis with impaired right upper extremity (40 percent disabling), multiple sclerosis with impaired left lower extremity (20 percent disabling), multiple sclerosis with impaired left upper extremity (20 percent disabling), multiple sclerosis with impaired right lower extremity (10 percent disabling), multiple sclerosis with facial tics (noncompensable), and multiple sclerosis with diplopia and ptosis (noncompensable). By way of summary, the appellant asserts that the Veteran's service-connected multiple sclerosis disabilities caused or contributed to his death. She reported in her October 2009 substantive appeal (VA Form 9) that multiple sclerosis was listed on the Veteran's death certificate as a result of the Veteran's family's involvement and insistence, which is reflected on the official Certificate of Death. In October 2007, the Chief of Medical Services at VA's Winston-Salem Outpatient Clinic reported that there was insufficient evidence and documentation of the death summary to provide an opinion as to whether the Veteran's multiple sclerosis could have materially hastened the Veteran's death, and concluded that he was unable to connect the Veteran's death to multiple sclerosis without speculation. In light of the inconclusive October 2007 opinion, the Board remanded the claim for another opinion in March 2014. In May 2014, another VA physician reported that "[i]t would be resorting to mere speculation to discuss what part if any the Veteran's service-connected multiple sclerosis (MS)." It appears as though the physician's opinion is incomplete, and thus, it is inadequate. In addition, the physician did not address whether the Veteran's multiple sclerosis affected any of the Veteran's vital organs (e.g., the heart) as requested in the March 2014 remand. In light of the foregoing, the Board finds that a new opinion must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate); see also Stegall, 11 Vet. App. at 271 (a remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand). Entitlement to DIC under 38 U.S.C.A. § 1318 If the Veteran's death is not determined to be of service origin, VA may pay 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) the disability was continuously rated totally disabling for a period of not less than five years from the date of the Veteran's discharge or other release from active duty; or (3) the Veteran was a former prisoner of war 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) (emphasis added). The statute was implemented by VA at 38 C.F.R. § 3.22, which indicates that the total rating may be schedular or based on an award of total disability due to individual unemployability due to service-connected disability (TDIU). Review of the record shows that VA granted a TDIU due to the Veteran's service-connected multiple sclerosis, effective from February 14, 2003, in an unappealed April 2003 rating decision. The Board notes that the Veteran died in 2007, some four years after the effective date of the award of TDIU. In August 2014, the appellant requested that VA assign a 1996 effective date for the grant of TDIU, which would have the effect of satisfying the 10-year requirement under 38 U.S.C.A. § 1318. In support of her request, the appellant reported that the Veteran stopped working in 1996 due to multiple sclerosis and indicated that the Veteran submitted medical evidence to VA in 1996 to show that physicians reported that he was unable to work due to multiple sclerosis and recommended that he stop working as a firefighter because of his multiple sclerosis. Following litigation regarding the meaning of 38 C.F.R. § 3.22, the regulation was revised to make it clear that "hypothetical" entitlement of a Veteran to a total disability rating prior to the Veteran's death, where such benefit was not actually sought and granted during the Veteran's lifetime, could not entitle a survivor to DIC benefits. See Wingo v. West, 11 Vet. App. 307 (1998). More specifically, in National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA could properly construe the "entitled to receive" language as it pertains to 38 U.S.C.A. § 1318 as a bar to the filing of new claims, i.e., claims where no claim had been filed during the Veteran's life or the claim had been denied and was not subject to reopening, i.e., "hypothetical entitlement" claims; and "hypothetical entitlement" is precluded under 38 C.F.R. § 3.22 as an additional basis for establishing eligibility under 38 U.S.C.A. § 1318. The Federal Circuit noted that 38 U.S.C.A. § 1318 does not allow the filing of new claims, but allows "reopening" of claims in cases where there was clear and unmistakable error (CUE). See NOVA II, 314 F.3d at 1377, 1381. Overall, VA has established that "hypothetical entitlement" is not a viable basis for establishing benefits under 38 U.S.C.A. § 1318. Therefore, the only possible ways for the appellant to prevail on her claim for benefits under 38 U.S.C.A. § 1318 are (1) to meet the statutory duration requirements for a total disability rating at the time of death; or (2) to show that such requirements would have been met, but for CUE in a previous decision. Reviewing the August 2014 statement in the light most favorable to the appellant, the Board finds that she has asserted that there was CUE in the prior final April 1998 rating decision addressing the rating assigned to the Veteran's service-connected disabilities and failing to award a TDIU at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (noting that TDIU is part and parcel of a claim for increase). Accordingly, the Board finds that the AOJ must consider in the first instance whether there was CUE in the April 1998 rating decision in order to assess whether she is entitled to DIC under 38 U.S.C.A. § 1318. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain a medical opinion regarding the Veteran's cause of death from a physician other than the May 2014 VA examiner. The claims file should be made available to the reviewing physician and all findings should be set forth in detail. The examining physician should address the following: (a) Is it at least as likely as not that the Veteran's service-connected multiple sclerosis disabilities were a principal cause of his death? In answering this question, address whether the Veteran's multiple sclerosis disabilities, singly or jointly with some other condition, was the immediate or underlying cause of death. (b) Is it at least as likely as not that the Veteran's service-connected multiple sclerosis disabilities were a contributory cause of his death? In answering this question, address whether the Veteran's multiple sclerosis disabilities contributed substantially or materially to death; combined to cause death; or aided or lent assistance to the production of death. In rendering this opinion, the examiner should specifically address the effects of multiple sclerosis on a vital organ (e.g., the heart) and whether the service-connected multiple sclerosis had debilitating effects and general impairment of health that would render the Veteran less capable of resisting the effects of other disease or injury primarily causing death. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) The examiner should discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, and cite to specific evidence in the file or to medical literature or treatises, if necessary. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state why that is the case. 2. Thereafter, readjudicate the issues on appeal, to include the issue of the appellant's entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318, which should include consideration of the theory that there was CUE in the April 1998 rating decision. 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. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).