Citation Nr: 1751931 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-31 755A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to death pension/survivor's benefits. 2. Entitlement to burial benefits for the Veteran. 3. Entitlement to pension for the Veteran. 4. Entitlement to service connection for a heart disability. 5. Entitlement to service connection for bilateral foot disability to include cold injury residuals. 6. Entitlement to service connection for a duodenal ulcer. 7. Entitlement to service connection for the cause of the Veteran's death. 8. Entitlement to special monthly compensation (SMC) based on Aid and Attendance for the Veteran. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and son-in-law ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from February 1946 to May 1947, and from November 1952 to February 1956. He died in May 2011. The appellant, his surviving spouse, has been substituted for him in the claims pending at the time of his death. (See July 2017 VA correspondence.) These matters come before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California, and a February 2013 decision of the St. Paul, Minnesota Restricted Access Claims Center. In July 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 60 days. The issues of entitlement to service connection for bilateral foot disability, a duodenal ulcer, the cause of the Veteran's death, and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At a July 2017 Board hearing, the appellant indicated that it was her intent to withdraw the appeal for the issues of entitlement to death pension, burial benefits, and pension during the Veteran's lifetime. 2. The most probative evidence is against a finding that the Veteran has a heart disability causally related to, or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to death/survivors pension have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to burial benefits have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to pension during the Veteran's lifetime have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for service connection for a heart disability have not been met. 38 U.S.C. § 1110, 1113, 1137 (2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims file includes some service treatment records (STRs) for the Veteran. In July 2012, the appellant was notified by VA that it had made a formal finding of unavailability of STRs and the Veteran's military service records. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, at the 2017 Board hearing, indicated that it was her intent to withdraw the appeal for the issues of appeal for the issues of entitlement to death pension, burial benefits, and pension during the Veteran's lifetime (See Board hearing transcript page 18). Thus, there remain no allegations of errors of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to review the issues. Adjudicated Issues Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board has reviewed all of the evidence in the appellant's claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to service connection for arteriosclerotic heart disease There is insufficient evidence to find that the Veteran had a heart disability causally related to, or aggravated by service, and the appellant has not asserted such with any degree of certainty. In his January 2011 application for benefits, the Veteran reported that his "heart problems" began in 2007, which is more than five decades after separation from service. He did not list any treatment providers. The appellant testified at the 2017 Board hearing that the Veteran was treated for heart disease in the last twenty years, or since approximately 1997 (approximately four decades after separation from service.) She further testified that to her knowledge it was not related to service. (See Board hearing transcript, pages 9 and 12.) The Veteran's January 1956 Report of Medical Examination for separation purposes reflects that his heart was normal upon examination. Furthermore, there is no clinical evidence of record of a heart disability in the year after separation from service. Post service clinical records reflect that the Veteran had a family history of premature coronary artery disease and that he had a diagnosis of heart disease. ((See August 2009 private Cardiovascular Consultants Medical Group record and 2010 records from Dr. H. Schultz.) The earliest evidence of a heart disability is several decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The evidence does not support a finding that the Veteran's heart disability was as likely as not due to, or aggravated by, active service. Moreover, neither the Veteran nor appellant has been shown to be competent to state such. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In addition, the Veteran did not serve in a geographic location, military specialty, and/or during a time period for which service connection is warranted based on a presumptive herbicide exposure under 38 C.F.R. §§ 3.307, 3.309. In sum, service connection for a heart disability is not warranted on a presumptive or direct service basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER The appeal on the issue of entitlement to death pension or survivor's benefits is dismissed. The appeal on the issue of entitlement to burial benefits for the Veteran is dismissed. The appeal on the issue of entitlement to pension for the Veteran for accrued purposes is dismissed. Entitlement to service connection for a heart disability is denied. REMAND Entitlement to service connection for bilateral feet disability In his 2011 VA Form 21-526, the Veteran asserted that he had "feet problems" which began in 1956 and for which he was treated at the VA Oakland Medical Center. The appellant testified at the 2017 Board hearing that the Veteran had frostbite in Korea and that he was treated at the Presidio in California for it. She could not recall the dates. In a February 2011, the appellant stated that the Veteran walked with assistance of a cane or walker. The Veteran's January 1956 Report of Medical Examination for separation purposes reflects that the Veteran's feet were normal upon examination. Post-service podiatry records reflect that the Veteran had calcific spurring along the posterior superior and inferior ends of both calcanei (See July 1980 x-ray report from The Permanente Medical Group - Oakland.) This is more than two decades after separation from service. Additional records reflect that the Veteran had elongated nails/dystrophic changes, calluses, and diabetic neuropathy. (See March, October, December 2000 Podiatry -OAK Kaiser Permanente records) There is no competent indication at this time that the Veteran, during the pendency of his claim, suffered from residuals of a cold weather injury, or that he suffered from feet disabilities since service. Nevertheless, as the Veteran asserted that his foot symptoms began in service and he was treated at the VA Oakland Medical Center, VA has a duty to attempt to obtain any such records. In his VA Form 21-526, the Veteran asserted that he had "feet problems" which began in 1956 and for which he was treated at the VA Oakland Medical Center; thus, any such records should be associated with the claims file. If any VA clinical records indicate that the Veteran had a foot disability which may be related to service, a VA clinical opinion should be obtained as to whether it is as likely as not that the Veteran, during the pendency of the claim, had a foot disability causally related to service. Entitlement to service connection for a duodenal ulcer The evidence reflects that the Veteran had ulcer problems for many decades; however, the evidence also reflects that he had problems prior to his service and then again more than a year after separation from service. At this time, there is no competent credible evidence that the Veteran had an ulcer in service, or within one year after separation from service. The Veteran's separated from his first period of active service in May 1947. In November 1950, the Veteran applied for clinical treatment (see VA Form 10-P-10) and reported that he had been sick for 24 hours and had been told that he had a "peptic ulcer" in 1942 (prior to his first period of active service). He was diagnosed with a possible peptic ulcer; hospitalization was not indicated. The Veteran was not on active duty at this time. In October 1952, the Veteran was seen at the VA medical facility in San Francisco California for pneumonia. It was noted that he had "a possible duodenal ulcer by history which was currently inactive, untreated." This was prior to his second period of service. The Veteran was discharged from the facility on November 10, 1952 and entered his second period of service on November 18, 1952. The Veteran separated from his second period of active service in February 1956. His Report of Medical Examination for separation purposes reflects that his G-U system was normal. Post service records note that the Veteran was hospitalized at a VA facility for a duodenal ulcer in December 1957, December 1958, December 1960, and November/December 1962. Although these hospitalizations were all more than a year after separation from service, they may provide probative evidence as to the exact onset of an ulcer, and whether it was incurred in or aggravated by service. The claims file includes August 2017 correspondence from Dr. V. Titov in which he states that the Veteran's "Peptic Ulcer Disease has a 50 [percent] probability of being a result of his past military service." Dr. Titov provided no rationale whatsoever and did not discuss the clinical records which note a prior history of ulcer disease. Nonetheless, it is enough to warrant VA to obtain a medical opinion which considers the evidence of record. VA should obtain outstanding VA records, if any, and thereafter, obtain a clinical opinion as to whether it is as likely as not that the Veteran had an ulcer disability which was caused by, or aggravated by, active service. Entitlement to service connection for the cause of the Veteran's death Entitlement to SMC based on Aid and Attendance for the Veteran The Veteran died in May 2011. His death certificate lists the cause of death as sepsis, and an underlying cause of pneumonia. Other conditions contributing but not resulting in the underlying cause were renal failure, intestinal obstruction, malnutrition, abdominal aortic aneurysm, and diabetes mellitus. Because the duodenum is part of the intestine, and because "intestinal obstruction and malnutrition" were listed on the death certificate, the Board finds that above remanded issue of entitlement to service connection for a duodenal ulcer is inextricably intertwined with the issue of entitlement to service connection for the cause of the Veteran's death. In addition, the issue of entitlement to SMC is inextricably intertwined as the criteria depends, in part, on the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to associate with the claims file all outstanding VA clinical records from February 1956 through 2011 to include (i) in-patient hospital records for treatment of duodenal ulcer from December 1957, December 1958, December 1960, and November/December 1962, and (2) 1956 and 1957 records for the Veteran's feet (California VA). 2. Thereafter, with regard to the Veteran's feet, IF AND ONLY IF, VA clinical records indicate that the Veteran may have a foot disability causally related to service, obtain a VA clinical opinion. The clinician should provide an opinion as to whether it is as likely as not (50 percent or greater) that the Veteran had a foot disability in 2011 or 2012 which was casually related to service. 3. With regard to the Veteran's ulcer, obtain a clinical opinion as to whether it is as likely as not that the Veteran's ulcer disability was causally related to, or aggravated by, active service. The clinician should consider the pertinent evidence of record, to include: a.) the November 1950 VA Form 10-P-10; b.) the October 1952 VA record which notes that the Veteran had a "possible duodenal ulcer by history which was currently inactive, untreated"; c.) the Veteran's January 1956 Report of Medical Examination for separation purposes which reflects that his G-U system was normal; d.) VA records noting hospitalization for a duodenal ulcer in December 1957, December 1958, December 1960, and November/December 1962; e.) the Veteran's dates of active service from February 1946 to May 1947, and from November 1952 to February 1956. A rationale must be provided for any opinion. 4. Following completion of the above, readjudicate the issues of entitlement to service connection for bilateral foot disability, duodenal ulcer, the cause of the Veteran's death, and SMC for aid and attendance. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and her representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs