Citation Nr: 1754911 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-34 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Robin E. Hood, Esquire WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1968 to May 1971. The character of the Veteran's discharge was honorable. He passed away in May 2012, and the appellant seeks benefits as his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant filed a Notice of Disagreement (NOD) in August 2013 and a Statement of the Case (SOC) was issued in December 2013. The appellant filed a Substantive Appeal via VA Form 9 in December 2013. Thus, the appellant perfected a timely appeal of the issues. In a July 2015 decision, the Board remanded the appeal for further development, specifically to afford the appellant a video conference hearing before the Board. In February 2017, the appellant testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT 1. The Veteran died in May 2012; his death certificate lists the immediate cause of death as astrocytoma. 2. At the time of his death, service connection was in effect for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm. 3. The record evidence is at least in relative equipoise as to whether a decubitus ulcer (bedsore), brought on by the Veteran's service-connected diabetes mellitus, contributed substantially or materially to his death. 4. The grant of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC under the provisions of 38 U.S.C. §§ 1310, renders moot the Appellant's claim for entitlement to DIC benefits under the provisions of 38 U.S.C. §§ 1151. 5. There is no longer a question or controversy regarding the benefit sought as to entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Appellant's favor, the criteria for the establishment of entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving DIC, have been met. 38 U.S.C. §§ 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.312 (2017). 2. There is no longer an issue of fact or law before the Board pertaining to the issue of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151. 38 U.S.C. §§ 511(a), 1151, 7104(a), 7105(d)(5) (West 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection for the Cause of the Veteran's Death Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017). 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). In the case at hand, at the time of his death, the Veteran was service connected for post-traumatic stress disorder, diabetes mellitus, type 2, sexual dysfunction associated with diabetes mellitus, and a scar on the left palm. The Veteran died on May [REDACTED], 2012. His death certificate lists the immediate cause of death as astrocytoma. After resolving any benefit of the doubt in favor of the Appellant, the Board finds that the evidence of record is at least in relative equipoise with respect to the question of whether the Veteran's service-connected diabetes mellitus caused or contributed to his death. Accordingly, and as will be discussed below, service connection is warranted for the cause of the Veteran's death. The record evidence shows that the Veteran was admitted to the Boston VA Medical Center in October 2011 with a diagnosis of a right temporal brain tumor. The Veteran underwent a resection on October 3, 2011. A February 2012 oncology note disclosed that the surgical report of the Boston VAMC indicated that the Veteran's tumor was not resectable due to its hypervascularity and that there was evidence of residual tumor on an MRI in November 2011. This information was relayed to the Veteran, who had been under the impression that the October 2011 surgery had gotten the entire tumor. A new plan was formulated to determine the nature of the right temporal mass and the possibility of a repeat resection. The Veteran underwent a repeat resection at VAMC Tampa on February 14, 2012, and was discharged on February 16, 2012. See Treatment Note, VAMC Tampa, page 655. Treatment notes indicate that the Veteran recovered well from surgery, was started on medication which he was tolerating fairly well, and planned to returned to his home in Maine. Id. at 657. The Veteran returned to the Tampa VAMC on March 14, 2012. A March 2012 treatment note listed the Veteran's primary diagnosis as infection status post craniotomy and notes diabetes as part of his contributory history. Id. at 551. An April 2012 treatment note indicates that the Veteran had a MRSA infection that was cultured from the craniotomy incision on the right side of his head on March 19, 2012. A separate April 2012 treatment note revealed that the Veteran had noncurable cancer that would recur despite treatment. He was noted as being six weeks status post his second resection that was complicated by a wound infection, a CSF leak, C-Difficile Colitis, and a stage IV sacral decubitus. The condition required a shunt; however the Veteran was not a candidate at the time secondary to his wounds. It was noted that it would be at least four more weeks until the Veteran would be able to be considered for a shunt. See April 25, 2012 Tampa VAMC Treatment Note, pages 68-69. In order to treat the decubitus, the Veteran would have required a colostomy and would require a gastrostomy feeding tube, given his poor nutritional status. However, the note indicated that the Veteran might not survive such treatments and that they might hasten his death. Without treatment, it was noted that the Veteran would ultimately succumb to these problems. The note concluded by indicating that the doctors could make the Veteran comfortable and try to make arrangements to have him transported back to his home in Maine. Id. The Appellant testified before the Board in February 2017. She indicated that her husband had been diagnosed with brain cancer in August 2011, and that the Veteran's oncologist had told them that the Veteran had approximately a year and a half to live. See February 2017 Hearing Transcript. The Appellant testified that the Veteran went to VAMC Tampa because he was weak from radiation and had been instructed to receive fluids. Prior to this hospitalization, the Appellant stated that the Veteran's blood sugar levels had been under control, but that they spiked while he was in the hospital. She testified that the Veteran was in the hospital for seven weeks, and that he was only moved out of the bed once during that time period. The Appellant reported that the hospital staff turned the Veteran every once in a while, and that towards the end of his stay there that he was finally given a bed that rotated. She indicated that she told the VAMC staff that her husband was going to get bedsores if they did not do something. She reported that they administered cream to the Veteran but that he never got out of bed and the bedsore kept getting worse until he had a large hole. The Appellant submitted a photo of the Veteran's ulcer which is of record. Id. The Appellant further stated that a Dr. Atkins in Maine told her that the Veteran's bedsore would kill him before the brain cancer. The Veteran did not have the bedsore when he went into the hospital. Further, the Appellant indicated that she was unaware that her husband had a MRSA infection until after he had been discharged from the hospital and arrived in Maine. The Board notes that the Appellant and her family members discharged the Veteran against medical advice for the purposes of transporting him back to Maine. Id. The Appellant submitted an independent medical opinion from Dr. H.M., a board certified internal medicine physician. Dr. H.M. noted that the Veteran suffered from a malignant brain tumor, specifically Glioblastoma Multiforme and that he entered VAMC Tampa with diabetes mellitus. He further noted that the Veteran developed severe decubitus ulcers while a patient at VAMC Tampa. The doctor opined that based on previously diagnosed diabetes mellitus, it was far more likely than not that the Veteran's decubitus ulcer formed and progressed rapidly as a result of the same. Furthermore, based on a thorough review of the Veteran's medical records, combined with a validated correlation between Diabetes Mellitus and decubitus ulcers, it was his medical opinion that it was far more likely than not that the massive decubitus ulcer which progressed rapidly as a result of his diabetes, along with the diabetes condition itself, were the causes of his death rather than his glioblastoma multiforme. See Independent Medical Review of Dr. H.M. The Board finds that the opinion authored by Dr. H.M. is highly probative in that it was authored by a medical professional who is qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the claims file and contains a rationale that explains the basis of this opinion with reference to pertinent medical findings. The Board notes that there has been no contrary opinion offered by a physician as to the connection between the Veteran's diabetes mellitus, his bedsore, and his death. The Board finds that the opinion of Dr. H.M., the testimony of the Appellant, and the relevant treatment notes from the Tampa VAMC all support the contention that the decubitus ulcer the Veteran incurred was caused by his service-connected diabetes. In turn, the Board further finds that the decubitus ulcer contributed substantially or materially to the Veteran's death, or at the very least, it combined with his existing brain tumor to cause death and aided or lent assistance to the production of death. In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for the cause of the Veteran's death, for purposes of receiving DIC, have been met. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017). II. DIC Benefits under 38 U.S.C.A. § 1151 The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a). All questions in a matter which under 38 U.S.C.A. § 511(a) are subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulations. 38 U.S.C.A. § 7104(a). 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. § 7015(d)(5). The Appellant has also submitted a claim based on 38 U.S.C. § 1151 as an alternative theory of entitlement to DIC for the cause of the Veteran's death. However, in light of the grant of service connection for the cause of the Veteran's death to include for purposes of receiving DIC under 38 U.S.C.A. § 1310, the Board finds on these facts that the Appellant's appeal under 38 U.S.C. § 1151 has been rendered moot. As a result, there remains no case or controversy to resolve, and the appeal concerning entitlement to DIC under the provisions of 38 U.S.C.A. § 1151 is dismissed. 38 U.S.C.A. § 7105(d)(5). ORDER Entitlement to service connection for the cause of the Veteran's death, to include for purposes of receiving Dependency and Indemnity Compensation, is granted. The appeal concerning the issue of entitlement to Dependency and Indemnity Compensation under the provisions of 38 U.S.C. § 1151 is dismissed. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs