Citation Nr: 1756953 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-30 702 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of death. 2. Entitlement to burial benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The decedent had service with the U.S. Navy Reserve with a verified period of active duty for training (ACDUTRA) from April 9,1990 to August 18, 1990. The decedent died in January 2009. The appellant is the decedent's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Regional Office (RO) at the Milwaukee, Wisconsin VA Pension Management Center that denied service connection for cause of death. An associated claim for a burial allowance was noted. In February 2011, the appellant filed a Notice of Disagreement (NOD) with the RO's decision to deny her claim for dependency and indemnity compensation (DIC) benefits and for a burial allowance. In August 2011, a Statement of the Case (SOC) was issued that addressed service connection for the cause of death and entitlement to burial benefits, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2011. In July 2016, the Board remanded this matter for further development. The requested development has been performed and the matter is now ready for appellate review. FINDINGS OF FACT 1. During the decedent's lifetime, service connection was not in effect for any disability. 2. The decedent's death certificate indicates that the immediate cause of death was cirrhosis of the liver, no other causes were listed. 3. The decedent only had ACDUTRA service in the Naval Reserves; he did not serve on active duty and did not incur any disease or injury during ACDUTRA. 4. Cirrhosis of the liver was not incurred in or aggravated by any period of ACDUTRA. 5. The decedent did not have active military, naval, or air service. 6. The deceased was not service-connected for any disability; nor did he have any claim for VA benefits pending at the time of death. CONCLUSIONS OF LAW 1. As a matter of law, service connection for cirrhosis of the liver does not apply as the decedent did not have active military, naval, or air service. 38 U.S.C. §§ 101(24), 1110 (West 2014); 38 C.F.R. § 3.3, 3.6 (2017); Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. The criteria are not met for entitlement to service connection for cause of death. 38 U.S.C. §§ 101(22), (24), 1110, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 3. The criteria for payment of VA burial benefits are not met. 38 U.S.C. §§ 101, 2302, 2303 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.1700-3.1706 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service in the line of duty. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). Service connection will also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d) (2017). "Active military, naval, or air service" includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2014); 38 C.F.R. § 3.6(a) (2017). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201 (2013). To establish entitlement to service connection for the cause of the veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310 (West 2014); 38 C.F.R. § 3.312 (2017). The service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1) (2017). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1) (2017). The appellant contends that the cause of death, listed on the death certificate as cirrhosis of the liver, is due to service. The appellant has submitted numerous lay statements from herself and other family members in support of her claim. The primary contention is that the decedent was in good health prior to joining the military and that he developed liver problems while serving in the Naval Reserves. In its July 2016 remand, the Board stated that the decedent had service with the U.S. Navy Reserve with a verified period of active duty from April 9, 1990, to August 18, 1990. It observed that the RO had reported that the decedent had an additional period of active duty from May 1, 1995, to February 20, 1998 and that several computer printouts indicated this to be the case, but a DD Form 214 for this period of service was not of record. The Board noted that a review of the record showed that on August 25, 2010, the RO initiated a request for records with the Defense Personnel Records Information Retrieval System (DPRIS). A printout of the DPRIIS response stated, in relevant part: "SSN for digital/electronic record not in the repository system. Verify SSN..... Submit new inquiry or contact action officer using the DPRIS follow-up message capability." The Board noted the social security number listed on the response printout did not match the decedent's social security number, which was listed on the request and it did not appear that any follow-up request was made. The Board further noted that in its November 2010 decision, the RO listed under evidence considered "Copies of service treatment records [(STRs)] from the claimant for April 1990 through August 1990 and May 1995 through February 1998." The Board observed that the paper claims file and the decedent's Virtual VA file contained copies of the Veteran's service treatment records. The Board noted that these records were dated only from 1990 to 1993, save for one record dated February 20, 1998, indicating that the decedent's health records were terminated by reason of expiration of enlistment. It further observed that also of record was a January 2012 deferred rating decision wherein a decision review officer requested that the decedent's complete STRs be obtained, to include any medical records from the Naval Reserves. The Board observed that despite the fact that the RO then issued a formal finding of unavailability for the decedent's complete STRs, it did not appear that any additional attempt was made to obtain the STRs in response to the deferred rating decision. It noted that under efforts made in order to obtain the record in questions, the formal finding of unavailability referenced the DPRIS request and response dated August. 25, 2010. However, as stated above, the decedent's social security number was listed incorrectly on the DPRIS response and it did not appear that any records were supplied in response to the request or that further inquiry was made. The Board noted that under applicable law, VA had to make as many requests as were necessary to obtain records from a Federal department or agency and might end its efforts to obtain such records only if VA could conclude that the records sought did not exist or that further efforts to obtain the records would be futile. The Board stated that under the circumstances, it could not conclude that reasonable efforts to obtain the decedent's STRs had been exhausted; hence, further development was required. The Board indicated that the RO should undertake appropriate action to attempt to verify all periods of service, to include all periods of active duty for training (ACDUTRA) and/or inactive duty training (INACDUTRA), and to obtain his complete STRs from his Reserve service. It noted that if the decedent's periods of ACDUTRA and INACDUTRA were unverifiable, or any outstanding treatment records were unavailable, such should be documented, in writing, in the record. The Board further indicated that the RO should also seek to obtain a copy of the Veteran's DD Form 214 for the period from May 1, 1995, to February 20, 1998. The Board specifically requested that the RO undertake appropriate action (to include contact with the National Personnel Records Center and any other appropriate source(s)) to obtain all service treatment records and to verify the decedent's dates of service, to include all periods of active duty, ACDUTRA and INACDUTRA. If possible, the RO was also to obtain the Veteran's DD Form 214 for the period from May 1, 1995, to February 20, 1998. The RO was to follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. The RO was also to continue efforts to obtain records and verify service and obtain the decedent's complete service treatment records until either the evidence/information was received, or until specific information that the evidence/information sought did not exist or that further efforts to obtain them would be futile was obtained. All records and/or responses received were to be. associated with the claims file. In conjunction with the claim, the RO sent three developmental letters to the appellant requesting additional information in August 2016, January 2017, and March 2017. The March 2017 letter informed the appellant of the unavailability of additional records. To date, no further response has been received. In response to a November 2016 request for complete medical and dental records and entire personnel records, the NPRC, in December 2016, indicated that all available records had been shipped to the contracted scan vendor for upload into VBMS. In a March 2017 memorandum, a Formal Finding on the Unavailability of the complete Official Military Personnel File (OMPF) and Service Treatment Records (STRs) for the periods May 1, 1995 through February 20, 1998 was made. It was indicated that it had been determined that the STRs for the period May 1, 1995 through February 20, 1998 were unavailable for review. It was noted that all procedures to obtain the OMPF and STRs from periods from May 1, 1995 through February 20, 1998 had been correctly followed and that evidence of written and telephonic efforts to obtain the records were in the file and that all efforts to obtain the needed facts were made and that the records were not available. It was noted that OMPF and STR were requested through service department on August 25, 2010 and March 6, 2017 and that a responses were received on August 25, 2010 and March 6, 2017, however, records received did not contain documentation for the period May 1, 1995 through February 20, 1998. It was further noted that development letters were sent on May 27, 2010, August 24, 2016 and January 5, 2017 and that the requested records were not received and all efforts had been exhausted. The Board notes that the documents obtained do not indicate that the Veteran performed any active duty military service. The decedent served on ACDUTRA from April 9, 1990 to August 18, 1990, following his enlistment in the Naval Reserves. The Veteran also had multiple other brief periods of ACDUTRA and INACDUTRA through December 22, 1993. There is no evidence of any additional reserve or active duty service subsequent to December 22, 1993. In this case, there is no question as to whether cirrhosis of the liver substantially or materially aided or lent assistance to the production of death. The death certificate demonstrates that cirrhosis caused the decedent's death, and there is no lay or medical evidence to the contrary. The issue upon which this matter turns is whether the decedent had "active military, naval, or air service" under the law. 38 U.S.C. § 101(2) (West 2014); 38 C.F.R.§ 3.1(d) (2017). The record includes a DD Form 214 that indicates that the decedent entered service with the Naval Reserve. The DD Form 214 indicates that the decedent had been ordered to ACDUTRA and he had ACDUTRA from April 9, 1990 to August 18, 1990. Thus, the Board finds that decedent's military records reflect that he had ACDUTRA service in the Naval Reserves and he did not serve on "active duty." Without "active military, naval, or air service," the deceased is not a "veteran" for VA compensation purposes. Bowers v. Shinseki, 26 Vet. App. 201 (2013). The Board has considered the various arguments set forth by the appellant's representative that the decedent's ACDUTRA service is included within the definition of "active military, naval, or air service." Unfortunately, these arguments are not in accordance with the law, which requires active military, naval, or air service. Furthermore, the law is clear that ACDUTRA qualifies as "active military, naval, or air service" only when a claimant dies or becomes disabled from a disease or injury incurred or aggravated in the line of duty. There is no competent evidence that the decedent became disabled or died from any disease or injury incurred during ACDUTRA. Accordingly, the Board finds that this claim for service connection for the cause of death must be denied. The decedent did not have active military, naval, or air service. The evidence does not otherwise show that any disease or injury incurred in ACDUTRA or injury or specified disease occurred during INACDUTRA and caused or contributed to the decedent's death. Therefore, the preponderance of the evidence is against the claim and the service connection for the cause of death must be denied. 38 U.S.C.§ 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Burial Benefits In a claim for burial benefits, a burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302 (West 2014); 38 C.F.R. § 3.1700 (2016). As relevant, the deceased must have obtained Veteran status to be eligible for burial benefits. 38 U.S.C.§ 101(2); 38 C.F.R. §§ 3.1(d), 3.6, 3.1701. As noted above, the deceased did not attain Veteran status. He died at Hospice. He was not service-connected for any disability at the time of his death, and there is no evidence that his death was in any way related to his April 1990 to August 1990 military service. Further, at the time of his death, the deceased did not have any pending claims for VA benefits. In sum, there is no legal basis upon which to award VA burial benefits in this case. Sabonis, supra. The Board sympathizes with the appellant for her loss and acknowledges that she has incurred funeral expenses. However, the claim must be denied as a matter of law because the basic eligibility requirements are not met. 38 U.S.C.§§ 101(2), 2302; 38 C.F.R. §§ 3.1(d), 3.6, 3.1700-3.1706. ORDER Entitlement to service connection for the cause of death is denied. Entitlement to VA burial benefits is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs