Citation Nr: 1705083 Decision Date: 02/21/17 Archive Date: 02/28/17 DOCKET NO. 14-31 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 (West 2014). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Appellant and Son ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from December 1939 to September 1945, including combat service in World War II, for which his decorations included the Purple Heart with Oak Leaf Cluster. He died in August 2013. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Houston, Texas RO otherwise has jurisdiction of the claims folder. In March 2015, the appellant testified at a hearing at the St. Paul RO before a Decision Review Officer. In October 2016, the appellant testified at a hearing at the San Antonio, Texas satellite office before the undersigned Veterans Law Judge. Transcripts of the hearings are of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the appellant's case should be applied to those electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in August 2013. 2. At the time of the Veteran's death, service connection was in effect for post-traumatic arthritis of both knees and ankles, a fracture and gunshot wound of the left foot and ankle with retained foreign bodies, a gunshot wound with a compound fracture of the right fibula, and multiple scars, with a combined schedular rating of 100 percent. 3. According to the Certificate of Death, the immediate cause of the Veteran's death was sudden cardiac arrest (pulseless ventricular fibrillation) of unknown cause. Secondary causes were atrial fibrillation with rapid ventricular response, chronic kidney disease, and coronary artery disease. 4. The Veteran did not die as a result of a service-connected disability, nor did a service-connected disability cause or contribute substantially or materially to his death. 5. The Veteran was in receipt of either a 100 percent schedular rating or a total disability rating based on individual unemployability (TDIU) from September 22, 2003, which was 9 years and 11 months prior to the Veteran's death. 6. The Veteran underwent a left total knee replacement in August 2000. A June 2001 VA examination report noted that surgery and ascribed the Veteran's knee symptoms to his service-connected leg disabilities. 7. The RO's rating decision of September 12, 2001, which granted entitlement to service connection for post-traumatic arthritis of the left knee, effective March 23, 2001, and did not acknowledge the evidence of a left total knee replacement; as such it was neither adequately supported by nor consistent with the evidence then of record. A 100 percent rating should have been assigned from March 2001, through at least August 2001. 8. Although the evidence of record is insufficient to determine the proper schedular disability rating for the Veteran's left total knee replacement at the time of the September 12, 2001 rating decision, the Board finds that the evidence of record at that time clearly showed that the Veteran's service-connected disabilities rendered him unemployable at least as of the date of the September 12, 2001 rating decision. 9. The Veteran was entitled to a total disability rating for a continuous period of at least 10 years immediately preceding his death. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5103, 5103A (West 2014); 38 C.F.R. § 3.312 (2016). 2. The Houston RO's rating decision of September 12, 2001, granting entitlement to service connection for post traumatic arthritis of the left knee, effective March 23, 2001, without acknowledging the evidence of a total left knee replacement in August 2000, was clearly and unmistakably erroneous. 38 U.S.C.A. § 5112 (West 2014); 38 C.F.R. § 3.105(a) (2016). 3. The criteria for an award of DIC benefits under 38 U.S.C.A. § 1318 are met. 38 U.S.C.A. §§ 1318, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.22 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA applies to the claims decided herein. VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an August 2013 letter, VA directed the appellant's attention to a fact sheet on its website describing the benefits that might be available to her subsequent to the Veteran's death and provided her with contact information for further information and assistance regarding applying for benefits. In addition, the appellant is represented and VA provided the appellant and her representative in July 2014 with a Statement of the Case (SOC) that detailed the relevant laws and regulations. In February 2016, after providing the SOC, VA readjudicated the claims in a Supplemental Statement of the Case (SSOC). Furthermore, the appellant has neither alleged nor demonstrated any prejudice with regard to the timing or content of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Based on the foregoing, the Board finds that the appellant has not been prejudiced by any failure of VA in its duty to notify, and that any such violation could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including the Veteran's service personnel records, service treatment records, VA treatment records, private treatment records, written statements of the appellant, and VA medical opinions. The appellant was also afforded VA hearings with a Decision Review Officer in March 2015 and with the undersigned in October 2016. During each hearing, the Decision Review Officer and the undersigned, respectively, explained the deficiencies and elicited evidence in the appellant's case to include the type of evidence she would have to submit to cure these deficiencies. These actions by the Decision Review Officer and the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103(c)(2) (2016). In sum, the VCAA provisions have been considered and complied with as to these issues. The appellant was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant was an active participant in the claims process by submitting evidence and argument. Thus, the appellant was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. Relevant Laws and Regulations In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014). VA is to resolve any reasonable doubt in the appellant's favor. 38 C.F.R. § 3.102 (2016). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014). Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2016). In order to prevail on the issue of service connection there must be medical evidence of a disability; medical evidence or, in certain circumstances, lay evidence of the in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 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 had 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). If the Veteran's death is not due to service-connected disability, a surviving spouse may still be entitled to DIC benefits in the same manner as if the Veteran's death were service-connected if the Veteran's death was not the result of willful misconduct and, at the time of his death, he was in receipt of, or entitled to receive, compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (2) rated by VA as totally disabling continuously since the Veteran's release from active duty and for at least 5 years immediately preceding death; or (3) rated by VA as 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. See 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22(a). The term "rated by VA as totally disabling" includes total disability ratings based on individual unemployability (TDIU). 38 C.F.R. § 3.22(c). In pertinent part, the term "entitled to receive" means that the Veteran filed a claim for disability compensation during his lifetime and would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the specified period but for clear and unmistakable error committed by VA in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. §3.22(b). Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the Veteran's lifetime, and without consideration of hypothetical entitlement to benefits raised for the first time after a Veteran's death. See Rodriguez v. Peake, 511 Fed. 3rd 1147 (Fed. Cir. 2008). The United States Court of Appeals for Veterans Claims (Court) has provided the following guidance with regard to a claim of clear and unmistakable error: "In order for there to be a valid claim of clear and unmistakable error, there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied; the claimant, in short, must assert more than a disagreement as to how the facts were weighed and evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The Court in Russell further stated: "Errors that would not have changed the outcome are harmless; by definition such errors do not give rise to the need for revising the previous decision. The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior AOJ (agency of original jurisdiction) or Board decision." Id. At 313-14. In determining whether there is clear and unmistakable error, the doctrine of reasonable doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b) (West 2014) is not for application, inasmuch as error, if it exists, is undebatable, or there was no error within the meaning of 38 C.F.R. § 3.105(a). Id. The Court has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably." Atkins v. Derwinski, 1 Vet. App. 228, 231 (1991). "It must be remembered that clear and unmistakable error is a very specific and rare kind of error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). In Russell, Fugo, and other decisions, the Court has emphasized that merely to aver that there was clear and unmistakable error in a rating decision is not sufficient to raise the issue. The Court has further held that simply to claim clear and unmistakable error on the basis that previous adjudications have improperly weighed the evidence can never rise to the stringent definition of clear and unmistakable error. Cause of Death The appellant, the widow of the Veteran, seeks service connection for the cause of the Veteran's death. In pertinent part, she contends that the Veteran's service-connected disabilities caused physical inactivity which caused or contributed substantially to the sudden cardiac arrest which ultimately led to the Veteran's death. A review of the record discloses that the Veteran died in August 2013. According to the Certificate of Death, the immediate cause of the Veteran's death was sudden cardiac arrest (pulseless ventricular fibrillation) of unknown cause. Secondary causes were atrial fibrillation with rapid ventricular response, chronic kidney disease, and coronary artery disease. The Veteran's history of prostate cancer was also listed on the certificate as a significant condition contributing to his death. At the time of the Veteran's death, service connection was in effect for post traumatic arthritis of both knees and ankles, a fracture and gunshot wound of the left foot and ankle with retained foreign bodies, a gunshot wound with a compound fracture of the right fibula, and multiple scars, with a combined schedular rating of 100 percent. There is no evidence that any of the disabilities that caused the Veteran's death had their onset within one year after the Veteran's separation from active duty service. There is also no evidence that any of them had their onset during the Veteran's active duty service. The Veteran's service treatment records are completely negative for any findings or diagnoses of any disorder of the heart, kidneys, or prostate, and neither the Veteran nor the appellant has ever argued that the disorders listed as causing the Veteran's death were directly related to active duty service. The Veteran's claims file was submitted to a VA medical expert in January 2016 for an opinion regarding the cause of death. After reviewing the evidence of record, the VA medical expert concluded it was less likely than not that the Veteran's service-connected conditions contributed substantially or materially to his death. As support for her conclusion, the medical expert explained that, after a review of credible peer-reviewed medical literature, none of the Veteran's service-connected conditions were risk factors for his primary or secondary causes of death and none of those causes of death were reported as long-term sequelae of fractures or related to post-traumatic arthritis. Inasmuch as the VA medical expert was unable to find a relationship between the Veteran's service-connected disabilities and his death, there is no medical evidence of record to indicate that they contributed to his death. That is to say, the evidence does not show that the Veteran's service-connected disabilities caused or contributed substantially or materially to his death, combined to cause his death, or aided or lent assistance to the production of his death. See 38 C.F.R. § 3.312(c). The Board finds the VA medical opinion to be highly probative because it relies on sufficient facts and data, provides a rationale for the opinion, and contains sufficient reasoning. See Prejean v. West, 13 Vet. App. 444, 448 (2000). Although the opinion does not specifically address the possibility of a relationship between the Veteran's service-connected disabilities and prostate cancer, given that the Veteran's death certificate lists prostate cancer as a contributing factor, as opposed to a primary or secondary cause, the Board finds that a causal link between the Veteran's service-connected disabilities and prostate cancer would be too attenuated a link to the Veteran's death to warrant service connection. Moreover, the prostate cancer was shown to have been in remission. While the Board acknowledges the appellant's argument that the Veteran's service-connected disabilities caused a level of physical inactivity that in turn led to the disorders that caused his death, as a layperson, she is not competent to provide an opinion as to a complex medical matter, such as the cause of death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant testified during the October 2016 hearing that no medical professional had ever told her that there was a link between inactivity and the Veteran's cardiac status. As the appellant has not submitted any medical evidence to support her contentions, the Board finds the probative value of the VA medical opinion outweighs her assertions regarding the cause of the Veteran's death. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for the Veteran's death. The benefit of the doubt doctrine is therefore not for application, and the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DIC pursuant to 38 U.S.C.A. § 1318 As stated above, the Veteran died in August 2013 and, at the time of his death, his service-connected disabilities had a combined schedular rating of 100 percent. Counting a period of TDIU, the Veteran's total disability rating was in effect from September 2003 to August 2013, a continuous period of nine years and eleven months immediately prior to his death. During the October 2016 hearing, the appellant noted additional disabilities, including the residuals of a head injury, that she contended were related to the Veteran's active duty service. Because hypothetical service connection for these injuries was raised for the first time after the Veteran's death, they cannot support a finding that the Veteran was entitled to a 100 percent rating for at a continuous period of at least 10 years prior to his death. See Rodriguez, supra. The appellant's claim can, therefore, only be granted if the Veteran would have received total disability compensation at the time of death but for clear and unmistakable error committed by VA in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § 3.22(b). The appellant argues that a September 12, 2001 rating decision contains clear and unmistakable error. In the present case, a review of the record extant at the time of the September 12, 2001 rating decision discloses a June 2001 VA examination report in which the examiner noted that the Veteran had undergone a left total knee replacement six months prior to the examination. There are administrative records indicating that this was done in August 2000. The examiner ascribed this total knee replacement to posttraumatic arthritis of the Veteran's knees and opined that this arthritis was a result of the Veteran's service-connected leg disabilities. Based on this examination report, in the September 12, 2001 rating decision, in pertinent part, service connection for post traumatic arthritis of the left knee was granted with an evaluation of 10 percent, effective March 23, 2001. As a result of this rating decision, the Veteran's combined disability rating was increased to 80 percent, effective March 23, 2001. The appellant argues that the September 12, 2001 rating decision contained clear and unmistakable error in granting service connection for left knee arthritis instead of a left total knee replacement. The Board agrees with the appellant. Because the September 12, 2001 rating decision did not acknowledge the Veteran's left total knee replacement at all, this is not a dispute regarding the weighing of evidence. The evidence of a total knee replacement was in the record but, because the rating decision did not acknowledge or consider it in reaching its decision, the correct facts were effectively not before the adjudicator. Regrettably, this means that the September 12, 2001 rating decision was neither adequately supported by nor consistent with the evidence of record. Rather, based on a review of pertinent evidence, "reasonable minds" could only conclude that the proper rating for the Veteran's left knee was for a total knee replacement, not arthritis, and that the original rating decision which ignored the Veteran's total knee replacement was fatally flawed at the time it was made. Under the circumstances, the rating decision of September 12, 2001, was clearly and unmistakably erroneous in failing to consider the total knee replacement which would have warranted a 100 percent rating from at least March 2001 through August 2001, with a minimum rating of at least 30 percent prescribed thereafter. This would have resulted in a minimum combined rating of 90 percent following the assignment of the temporary total rating. Further, it was error not to consider the issue of a TDIU given these facts. As such, the Board concludes that a TDIU should have been assigned effective after the termination of the 100 percent temporary total rating sometime in late 2001. Total knee replacements are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2016). Under Diagnostic Code 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability. After this period has ended, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261, and 5262. The minimum rating for a knee replacement with prosthesis is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Board notes that, in notifying the Veteran of the September 12, 2001 rating decision, VA invited him to file a claim for TDIU, which he did on September 30, 2003. In a February 2004 rating decision, VA granted TDIU, effective September 30, 2003, and found that the Veteran stopped working as a result of his service-connected disabilities in 1988. In light of the totality of the circumstances, it is concluded that the Veteran's service-connected disabilities, had they been rated properly, rendered him unemployable at least as of the date of the September 12, 2001 rating decision, with a total rating assigned from the March 2001 effective date of the service connection for a left knee disorder. As a result the Board finds that the Veteran was entitled to a total disability rating for at least 10 years immediately preceding his death and that entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is therefore warranted. ORDER Service connection for the cause of the Veteran's death is denied. The September 12, 2001 rating decision which granted entitlement to service connection for post traumatic arthritis of the left knee, effective March 23, 2001, without acknowledging the evidence of a total left knee replacement, was clearly and unmistakably erroneous. Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs