Citation Nr: 1802198 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to VA death pension benefits from January 1, 2011 to February 1, 2013. ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty with honorable discharge from May 1984 to September 1994. Service from September 1994 to December 1999 was other than honorable. A document dated October 5, 2015, stated that the Veteran was to be discharged on October 3, 1996 and that AWOL did not begin until therafter. The document noted that such service was valid. The Veteran died in December 2010 and the appellant claims as his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) from a March 2016 supplemental statement of the case (SSOC) of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. By way of history, the appellant filed a claim for death pension benefits in January 2011 and a February 2012 Administrative Decision determined that the Veteran's discharge under other than honorable conditions was a bar to VA benefits. The appellant filed a timely notice of disagreement (NOD) and a January 2014 statement of the case (SOC) affirmed the decision. In February 2012, an Administrative Decision corrected the February 2012 decision and concluded that the Veteran did have periods of service with honorable discharge that entitled him to VA benefits. Another March 2014 Administrative Decision determined that although the Veteran and the appellant had periods of separation, continuous cohabitation had been established. In March 2016, an Administrative Decision that superseded previous decisions was issued, finding that the Veteran had three periods of service with honorable discharge that entitled him to VA benefits and one period of service, from September 1994 to December 1999, that was considered dishonorable for purposes of VA benefits. In March 2016, the appellant was granted death pension benefits effective February 1, 2013 and a subsequent March 2016 SSOC was issued, denying entitlement to service connection for cause of the Veteran's death, entitlement to accrued benefits, and entitlement to death pension benefits for the period from January 1, 2011 to February 1, 2013. FINDINGS OF FACT 1. The Veteran died in December 2010; the cause of death was recorded as respiratory arrest with seizure event, chronic obstructive pulmonary disease (COPD), and chronic alcohol abuse listed as underlying causes. 2. At the time of death, the Veteran was not service-connected for any disability. 3. The Veteran did not have any claims for VA benefits pending at the time of his death. 4. A disability of service origin did not cause or contribute substantially or materially to the Veteran's death. 5. The Veteran and the appellant were married in December 1986, and were still married at the time of his death. 6. The Veteran had qualifying wartime service in the Gulf War. 7. From January 1, 2011 to February 1, 2013, the Veteran's annual income exceeded the maximum annual pension rates for those years. CONCLUSIONS OF LAW 1. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121 (2014); 38 C.F.R. § 3.1000 (2017). 2. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 1310, 5107 (2014); 38 C.F.R. § 3.312 (2017). 3. The criteria for death pension benefits from January 1, 2011 to February 1, 2013 have not been met. 38 U.S.C. §§ 103, 1521, 5107 (2014); 38 C.F.R. § 3.3, 3.23, 3.50, 3.102, 3.271, 3.272, 3.274 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant been provided notice letters throughout the appeal that address all notice elements required. VA's duty to notify was satisfied in December 2011, December 2013, July 2014, September 2014, and October 2015. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. A February 2015 Formal Finding on the Unavailability of Service Treatment Records was issued for the Veteran's service period from September 15, 1994 to December 8, 1999. In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records are not available. See Russo v. Brown, 9 Vet. App. 46 (1996). Service treatment records, post-service private and VA treatment records, and lay statements have been associated with the record, to the extent they are available. The Board notes that an early July 2016 Report of Information shows that the appellant stated that she had more evidence to provide. However, as of this date, six months have passed and no new evidence has been submitted in support of the appellant's claims. The duty to assist in the development and adjudication of a claim is not a one-way street. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a claimant wishes help, he or she cannot passively wait for it in circumstances where he or she may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). In addition, the appellant has not identified any additional, outstanding evidence that has not been requested or obtained. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Board acknowledges that no VA medical opinion was obtained regarding whether the Veteran's cause of death is related directly to his service. The Board further concludes that no such opinion is necessary as there is no evidence suggesting a relationship between the Veteran's service and his death. See 38 U.S.C. § 5103(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). A VA medical examination is not required as a matter of course in every case involving a nexus issue. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the appellant, in which case an examination may not be required). As discussed below, the record contains no competent evidence that there is a nexus between the cause of the Veteran's death and his service. Thus, the Board does not find it necessary to obtain a medical opinion. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Accrued Benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121 (2014); 38 C.F.R. § 3.1000(a) (2017). Persons eligible for accrued benefits are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000(a) (2017). In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). The Board acknowledges the appellant's assertions that the Veteran suffered from a psychiatric disorder due to service. She reported that the Veteran was young and healthy when he entered service, but physically, mentally, and emotionally abusive after his separation from service. She also reported symptoms she believed to be consistent with PTSD, such as nightmares, flashbacks, and mood swings. While the Board is sympathetic to the appellant's contentions, the claims file does not reveal that there was a pending claim at the time of his death or that there were benefits that had been awarded and unpaid. Therefore, there is no basis under which accrued benefits may be granted. The facts of this case are not in dispute and the law is dispositive. As such, the claim of entitlement to accrued benefits must be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). III. Service Connection for the Cause of the Veteran's Death According to the death certificate, the Veteran died in December 2010 at the age of 45. At the time of the Veteran's death, service connection was not in effect for any disabilities. The record does not show that he ever applied for service connection for disabilities during his lifetime. The Veteran's death certificate listed his immediate cause of death as due to respiratory arrest with seizure event, COPD, and chronic alcohol abuse listed as underlying causes. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310 (2014); 38 C.F.R. § 3.312(a) (2017). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2017). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; 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(c)(1) (2017). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C. § 1310 (2014). Issues involved in a claim of entitlement to service connection for cause of death are decided without regard to any prior disposition of those issues during the veteran's lifetime. 38 C.F.R. § 20.1106 (2017). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). As noted above, the Veteran's service treatment records from September 1994 to December 1999 are not of record. See February 2015 Formal Finding on Unavailability of Service Treatment Records. With respect to the service treatment records that are available, there are no complaints, findings, or diagnoses related to respiratory arrest, seizure event, COPD, or chronic alcohol abuse. Post-service treatment records also fail to reveal complaints, findings, or diagnoses related to respiratory arrest, seizure event, COPD, or chronic alcohol abuse. On December 26, 2010, the Veteran's family was awakened by the Veteran coughing in his sleep. The Veteran was rushed to the emergency department in cardiac arrest and was admitted with the diagnosis of choking in his sleep. He was unable to be resuscitated and the final impression was cardiopulmonary arrest. Based on a review of the evidence, the Board concludes that service connection for the cause of the Veteran's death is not warranted. In this case, the evidence fails to show that the causes of death listed on the Veteran's death certificate were related to his service. The Board notes that service connection is precluded under 38 U.S.C. § 1110 for primary alcohol abuse and for secondary disabilities resulting from primary alcohol abuse; however, service connection may be granted for an alcohol abuse disability if such disability is secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). While the appellant asserts that the Veteran suffered from PTSD and other psychiatric disorders, there are no diagnoses noted in any of the Veteran's treatment records. The appellant is competent to provide testimony or statements related to symptoms or facts of events that are observed and within the realm of personal knowledge, but she is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The matter of a diagnosis of an acquired psychiatric disorder, to include PTSD, is within the province of trained professionals and not that of lay person. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to have the appropriate training and expertise, she is not competent to diagnosis the Veteran with a psychiatric disorder, including PTSD, nor is she competent to link the Veteran's chronic alcohol abuse to a psychiatric disorder. The Board finds that the competent evidence of record does not show that the Veteran was ever diagnosed with a psychiatric disorder, or that a psychiatric disorder was related to the Veteran's valid service. Therefore, the Board in unable to conclude that the Veteran's chronic alcohol abuse was secondary to a service-connected disability. In summary, the competent and probative evidence of record does not show that the Veteran's death was in any way related to his active duty service. There is also no competent and probative evidence of record that suggests a disability that warranted service connection was a contributory cause of his death. In the absence of any probative evidence that a disability incurred in or aggravated by service was either the principal or primary cause of death, or that it was a contributory cause of death, service connection for the cause of the Veteran's death is not warranted. The Board is very sympathetic to the appellant's loss of her husband, the Veteran, but for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). IV. Entitlement to Death Pension Benefits Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a) (2014); 38 C.F.R. § 3.3 (2017). Even though the Board has determined, above, that the Veteran's cause of death should not be service connected, VA pension benefits may still be granted if it can be shown that the Veteran served on active duty for at least 90 days during a period of war. See 38 U.S.C. § 1521 (2014); 38 C.F.R. §§ 3.2, 3.3 (2017). The term "period of war" is defined by statute to include the Gulf War from August 2, 1990 through a future date to be set by law or Presidential Proclamation. See 38 U.S.C. § 101; 38 C.F.R. § 3.2. The Veteran's DD 214 shows that he served in an active duty capacity (with an honorable discharge) from May 1984 to September 1994, and thus, the first element of the criteria is met. Therefore, the Board must consider whether the appellant's income is in excess of the maximum annual pension rate. Basic entitlement to death pension benefits exists if, among other things, the surviving spouse's income is not in excess of the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23 as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. §§ 3.21, 3.23. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. See 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12 month annualization period in which received, except for listed exclusions. See 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Unreimbursed medical expenses in excess of 5 percent of the maximum annual pension rate (MAPR), which have been paid, may be excluded from an individual's countable income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the appellant received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. As noted, the appellant has been awarded entitlement to death pension benefits from February 1, 2013. Accordingly, the issue in this case is her entitlement to death pension benefits from January 1, 2011 to February 1, 2013. The AOJ denied entitlement to death pension benefits for this period on the basis that her income exceeded the maximum annual pension rate. On a November 2015 Eligibility Verification Report, the appellant reported wages of $1,000 a month from December 2010 to December 2011 and $1,000 a month from January 2012 to December 2012. She denied income from other sources and denied having any assets. The appellant indicated that she stopped working in December 2012 due to illness. From December 2010 to December 2011, the appellant reported $150 in medical expenses and from January 2012 to January 2013, she reported $563 in medical expenses. The appellant also reported that at the time of her husband's death, none of her children were attending high school or college at that time. In 2011, the MAPR was $7,933 and the appellant's medical expenses of $150 did not total more than 5 percent of the MAPR, thus barring exclusion from the appellant's countable income. The appellant's annual income for this year exceeded the maximum annual death pension limit set by law for a surviving spouse with no dependents. In 2012, the MAPR was $8,219 and the appellant's medical expenses of $563 did total more than 5 percent of the MAPR, entitling a deduction of this amount from her countable income and resulting in an annual income of $11,437. Even with the exclusion of medical expenses, the appellant's annual income for this year exceeded the maximum annual death pension limit set by law for a surviving spouse with no dependents. Based on the forgoing calculations, the appellant's claim of entitlement to death benefits from January 1, 2011 to February 1, 2013 must be denied due to the appellant's excessive income for both years. ORDER Entitlement to accrued benefits is denied. Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to death pension benefits from January 1, 2011 to February 1, 2013 is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs