Citation Nr: 1633157 Decision Date: 08/22/16 Archive Date: 08/26/16 DOCKET NO. 13-22 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to service connection for cause of the Veteran's death. 2. Entitlement to dependency indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and B.T. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to May 1945 in the United States Army. He was a recipient of the Combat Infantry Badge and Purple Heart Medal. He died in February 2012, and the appellant has filed a claim as his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The RO in Nashville, Tennessee, certified the appeal to the Board. In November 2015, the appellant testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. Any future consideration of this Veteran's case must take into account the existence of these electronic records. FINDINGS OF FACT 1. Prior to his death, the Veteran was service-connected for bilateral hearing loss, posttraumatic stress disorder (PTSD), shell fragment wound to the right shoulder (muscle group III), shell fragment would to the left pleural with retained foreign body (muscle group IV), tinnitus, and a perforated right ear drum. 2. The Veteran's service-connected disabilities did not cause or contribute to his death. 3. The causes of the Veteran's death developed many years after service and were not the result of a disease or injury incurred in active service. 4. The Veteran died in February 2012. He was not a former prisoner of war (POW), and he was not in receipt of compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service, or for 10 or more years prior to 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 here. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2015). 2. The criteria for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Court has held that additional, detailed notice requirements apply in the context of a claim for DIC benefits based on service connection for the cause of death. In particular, this notice must 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. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the RO provided the appellant with a notification letter in April 2012, prior to the initial decision on the claims. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the appellant of the evidence necessary to substantiate the claims and of the division of responsibilities in obtaining such evidence. This letter also satisfied the Hupp and Dingess notification requirements. In addition, the duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The appellant has not identified any available, outstanding records that are relevant to the claim decided herein. The record also includes written statements provided by the appellant and her representative, as well as a transcript of the November 2015 hearing. In addition, VA medical opinions were obtained in July 2012, February 2013, and May 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); see also Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed. Cir. 2008) (38 U.S.C.A. § 5103A(a) requires VA to assist a claimant in obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim). The Board finds that the VA opinions are collectively adequate to decide the case because they were predicated on a review of the claims file and consideration of the Veteran's pertinent medical history, as well as the appellant's statements. The opinions sufficiently address the central medical issues in this case to allow the Board to make a fully informed determination and are supported by rationale. Barr, 21 Vet. App. at 311. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion regarding the issues on appeal has been met. 38 U.S.C.A. § 5103A(a). The appellant also testified at a hearing before the undersigned Veterans Law Judge in November 2015. The Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claims, and the appellant, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate the claims. In addition, the record was left open for 90 days following the hearing to allow the appellant to submit additional evidence. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Service Connection for the Cause of the Veteran's Death DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C.A. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997). 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 service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or 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. In determining whether the disorder that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C.A. § 1310. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the appellant contends that the Veteran's service-connected shell fragment wounds and/or his PTSD caused or substantially contributed to his death. In November 1944, the Veteran sustained a shell fragment wound, which penetrated through his right chest, transversing the right pleural space and right lung. The injury produced a contusion of the myocardium and hemopericardium and a shell fragment was lodged above his left diaphragm. Service connection was granted for residuals of the shell fragment wound to the right shoulder and chest. An October 1947 medical record from Dr. M.M. (initials used to protect privacy) indicates that the Veteran developed pleural effusion in the right side and that a thoracentesis was performed several times (i.e., the removal of fluid from the pleural space between the lungs and chest wall). He complained of chest pain and occasional dyspnea. There were diminished breath sounds in both lung bases and slight dyspnea with exercise. The diagnoses were chronic pleurisy of the right base, a foreign body (shrapnel) of the left base, and traumatic myositis of the right shoulder. In October 1978, the Veteran filed a claim for an increased disability rating. He complained of experiencing pain in the left lung and in his back near his backbone, which made it difficult for him to sleep. He did not indicate that he was having any difficulty breathing. During a November 1978 VA examination, the Veteran reported that his right shoulder was not bothersome except on the extreme ranges of motion. It was noted that he had chest pain over the years and was recently hospitalized for pain in the left lower chest. He was extensively studied and coronary artery disease was ruled out by stress tests. Pulmonary function tests showed no obstruction or restriction. He was discharged with the cause of the chest pain undetermined. X-rays showed a metallic density to the left of D-11; degenerative changes of the right shoulder; and scarring of the right hemidiaphragm. There was no evidence of failure, acute infiltrate, or effusion. The examiner believed that the Veteran had a scar in his chest, which was presumably causing him some discomfort. A January 2008 VA record notes dyspnea on the Veteran's active problem list. In May 2008, he complained of episodes of dyspnea with normal activities. An August 2008 record indicates that he was short of breath "due to diaphragm." In September 2008, his active problem list included paralysis of the diaphragm. In January 2009, he complained of shortness of breath while bending over to tie his shoe and waking up at night wheezing. It was noted that pulmonary function tests in 2003 had been normal. X-rays showed chronic obstructive pulmonary disease (COPD) with no pulmonary edema or lung infiltrates. In April 2009, X-rays showed "moderate" COPD changes. The physician indicated that the Veteran's dyspnea and wheezing appeared most likely secondary to heart failure with congestion. In June 2009, the Veteran fell out of bed and X-rays were taken to rule out rib fractures. The X-rays showed no evidence of fracture. There were also no acute cardiopulmonary or other significant abnormalities. Chronic lung changes with findings compatible with COPD were noted as seen in previous studies. In September 2009, X-rays showed generalized cardiomegaly, which appeared to have increased since May 2009. A small right pleural effusion was seen, which was thought could be related to recent acute rib fractures or early congestive heart failure. In October 2009, the Veteran was seen for acute onset of dementia-type symptoms. It was noted that his lungs had good air entry bilaterally and were clear to auscultation with no expiratory wheezes. X-rays showed what appeared to be interval clearing of the small pleural effusion that was seen on earlier X-rays. A December 2009 VA treatment record for PTSD indicates that the Veteran stated that he was doing well. His lungs were clear to auscultation in February and April 2010. VA treatment records dated from July 2010 to February 2012 reflect that the Veteran had significant medical problems. See Virtual VA, CAPRI records received on July 18, 2012. He had dementia, valvular heart disease, corneal opacities, vitamin B-12 deficiency, congestive heart failure, and coronary artery disease. In September 2010, he had no chronic shortness of breath, no new chronic cough, and no wheezing. He did not experience chest pain with breathing. In October 2010, it was noted that he had completely improved from a recent episode of congestive heart failure. In December 2010, it was noted that his main problem was ischemic heart myopathy. His lungs were clear to auscultation with no rales, rhonchi or wheezing. He had good air exchange. In January 2011, he was admitted to the emergency room after wheezing loudly for four or five days. He was diagnosed with mild congestive heart failure exacerbation with possible superimposed bronchitis. In September 2011, he had an episode of dyspnea/COPD exacerbation. The physician noted that these symptoms were multifactorial and that the possible contributing factors were COPD, congestive heart failure, and pneumonia. In January 2012, it was noted that he had a fever, increased shortness of breath, and lethargy for the past three weeks. The physician was concerned of an underlying infectious process, and he was admitted to monitor his multiple comorbidities and fragile condition. In February 2012, the Veteran was admitted to comfort care after an episode of dyspnea. Diagnostic testing revealed that he had had a pulmonary embolism. His problem list include decreased or poor oral intake, community acquired pneumonia, pulmonary embolism, deep vein thrombosis, dementia, COPD, thoracic-aortic aneurysm, coronary artery disease, atrial fibrillation, hypertension, gastroesophageal reflux disease (GERD), vitamin B-12 deficiency, and benign prostatic hyperplasia. He was not considered a good candidate for percutaneous endoscopic gastrostomy (PEG) (i.e., a feeding tube) and palliative care was recommended through Hospice. He continued to decline and died later that month at the age of 88. The February 2012 death certificate indicates that the immediate cause of the Veteran's death was chronic respiratory failure due to chronic obstructive lung disease. Other significant conditions contributing to his death were listed as shoulder muscle injury, chest muscle impairment, and PTSD. Prior to his death, the Veteran was service-connected for bilateral hearing loss, rated at 100 percent; PTSD, rated at 50 percent; shell fragment wound to the right shoulder (muscle group III), rated at 30 percent; shall fragment would to the left pleural with retained foreign body (muscle group IV), rated at 20 percent; tinnitus, rated at 10 percent; and a perforated right ear drum, rated at 0 percent. In July 2012, VA obtained a medical opinion from Dr. A.B. He opined that it was not at least as likely as not that the Veteran's service-connected chest muscle impairment and shoulder muscle injury caused or significantly contributed to his death. Dr. A.B. noted that the Veteran received a severe right shoulder and chest wound during World War II, that he did remarkably well during the recovery process, and that he was sent home to recuperate. He was not service connected for any cardiac or pulmonary trauma relating to these injuries or retained fragments. In February 2013, the RO obtained an opinion from a VA psychologist. She opined that it was less likely as not the Veteran's PTSD contributed to a substantial degree or caused his death. She noted that poor sleep was the only symptom that was addressed on the treatment plan dated in January 2009 and that there were no complaints of PTSD-related symptoms after 2009. The last psychiatric note found in 2011 indicated he was agitated due to his worsening physical condition and confusion due to dementia. PTSD was not mentioned as a cause for his agitation. Notes from the nursing facility where he was last admitted contain no mention of PTSD bothering the Veteran. She further noted that PTSD is generally known to improve over time and is not known to contribute to lung disease. She further stated that there appeared to be no evidence to suggest that PTSD contributed to the Veteran's death and it was not known why PTSD was listed on his death certificate. In May 2013, the RO obtained another opinion from Dr. A.B. He opined that it was not at least as likely as not that the Veteran's service-connected hearing loss, tinnitus, and perforated ear drum contributed to his death, noting that the auditory and pulmonary organ systems were not related. He also opined that it was not at least as likely as not that the service-connected shell fragment wound to the right shoulder caused or significantly contributed to his death, noting that the shoulder injury did not impinge upon his ability to breathe. Finally, he opined that it was not at least as likely as not that the shell fragment wound to left pleural with retained foreign body caused or contributed to his death as recorded on the death certificate. Dr. A.B. noted that the Veteran had a significant penetrating chest wound with a small retained metal fragment near the esophageal diaphragmatic junction; however, his history after the military was one of recovery and achievement. COPD is a disease of small airways, and chronic pulmonary failure is a disease of inadequate oxygenation of the blood. There were no records to support lifelong treatment or illness relating to chronic pulmonary failure or COPD beginning at the time of his military injury, which would give support to the contention that this was service caused. In addition, it was noted that his other medical conditions, including congestive heart failure, coronary artery disease, atrial fibrillation, extensive pulmonary embolism history, which arguably were consistent with his demise were not mentioned in the death certificate. As an initial matter, the Board notes that the death certificate indicates that the Veteran's death may be related to a service-connected condition. VA Fast Letter 13-04 instructs adjudicators to "grant service connection for the cause of death when the death certificate shows that the service-connected disability is the principal or contributory cause of death." Although the Fast Letter has been rescinded, its contents have been incorporated into the Live Manual. See M21-1, IV.iii.2.A.1.B. The Board has considered this Fast Letter and the subsequent Live Manual provision but does not find them controlling. Initially, the Board notes that sub-regulatory authorities promulgated by the Veterans Benefits Administration are not generally binding up upon the Board. See 38 U.S.C.A. § 7104(c); Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008) ("As the DVA has explained, Manual M21-1 'is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.'" (quoting 72 Fed.Reg. 66,218, 66,219 (Nov. 27, 2007))). Even if the presumption were binding upon the Board, it is not a presumption that specifies evidence of a particular strength is required to rebut it. Ordinary evidentiary presumptions do not carry any evidentiary weight in the face of contradictory evidence. See, e.g., Ball v. Kotter, 723 F.3d 813, 827 (7th Cir. 2013) (once evidence is introduced rebutting a presumption, "the 'bubble bursts' and the presumption vanishes"). In this case, the most probative evidence indicates that the Veteran's service-connected disabilities did not cause or contribute to his death. Although the death certificate lists his shell fragment wounds to his right shoulder and chest and his PTSD as contributing conditions, there is no other evidence to support this contention. As noted by Dr. A.B., the Veteran did have any lasting respiratory or pulmonary impairment as a result of his shell fragment wounds. Although he was treated for chronic pleurisy after his injuries, pulmonary function tests in 1978 and 2003 were normal. The residual symptoms reported by the Veteran were pain at the base of his left lung and pain at the extreme of ranges of motion of his right shoulder. He did not complain of having any residual shortness of breath. The medical evidence indicates that he had episodes of dyspnea beginning in 2008; however, shortness of breath was attributed to factors other than his shell fragment wounds, e.g., congestive heart failure, ischemic heart myopathy, COPD, and pneumonia. In the month prior to his death, he was also found to have had a pulmonary embolism, which was not listed on his death certificate. In this case, the Board finds the VA examiners' opinions highly probative. They provided adequate rationale for their opinions, referencing the medical principles involved and the Veteran's specific medical history. Their opinions are also consistent with the underlying medical record. Other than the death certificate, there is no medical opinion or other evidence linking the Veteran's service-connected disabilities to his death. Because the death certificate is inconsistent with the underlying medical records, the Board finds that it has limited probative value. The Board has also considered the statements of the appellant and her representative. The appellant is certainly competent to report as to matters of which she observed or had first-hand knowledge. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the ultimate etiology questions in this case are related to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Moreover, even assuming the appellant's lay assertions regarding etiology are competent, the Board nevertheless finds the VA examiners' opinions to be more probative, as they were based on a review of the record and the examiners' medical education, training, and experience. In light of the above, the Board finds that the criteria for service connection for the cause of the Veteran's death have not been met, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DIC Benefits under 38 U.S.C.A. § 1318 VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C.A. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or 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 the veteran was a former POW and 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); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). The Veteran was discharged from service in May 1945. In a May 1945 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 100 percent rating for residuals of shell fragment wounds that he sustained in service, effective from May 27, 1945. After his condition showed improvement, his combined evaluation was reduced to 40 percent effective from May 21, 1946. See March 1946, February 1948, August 1960 decisions. His combined evaluation was increased to 70 percent effective from November 10, 2008, and to 100 percent effective from January 26, 2010. The Veteran died in February 2012. After a full review of the record, the Board finds that the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Because the durational requirements for a total disability rating under 38 U.S.C.A. § 1318 have not been met, nor has the evidentiary record shown the Veteran was former POW, entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). The Board also considered whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C.A. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § 3.22(b)(1). Previous determinations which are final and binding, including decisions of the assignment of disability ratings, will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they are known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). In this case, a claim of CUE to any previous rating decision has not been raised. For the reasons stated above, the Board finds that the criteria for DIC benefits pursuant to the provisions of 38 U.S.C.A. § 1318 have not been met. See Sabonis, 6 Vet. App. at 430; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs