Citation Nr: 1804145 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-33 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes. 3. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318, to include as being rated totally disabled for a continuous period of at least 10 years immediately preceding death because the Veteran would have received such compensation but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the Veteran's lifetime. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active military service from April 1944 to May 1945. The Veteran was a recipient of the Purple Heart Medal. The Veteran died in September 2007 and the appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the appellant requested a hearing before a Veterans Law Judge of the Board; however, in September 2011, the appellant's representative advised the Board that she wished to withdraw her request for a hearing. Consequently, the Board hearing scheduled for October 11, 2011, was cancelled. The Board remanded the case to the RO, via the Appeals Management Center (AMC), in December 2012 and December 2013 for further development and adjudicative action. The case has been returned to the Board for further appellate review. The Board notes that the appellant filed a formal claim for DIC, death pension, and accrued benefits (Form 21-534) in March 2008. The claim for DIC benefits pursuant to 38 U.S.C. § 1318 was adjudicated in the February 2009 rating decision under the issue identified as service connection for the Veteran's cause of death, although not listed as a separate issue. The appellant filed a notice of disagreement (NOD) in April 2009, which is not of record, and indicated in June 2010 correspondence that her appeal included DIC. In addition, in a December 2017 informal hearing presentation, the appellant and her representative raised the claim that there was CUE in an unappealed June 1945 rating decision that granted service connection for PTSD and assigned a 50 percent rating, and contends that a total disability rating should have been awarded at that time. Therefore, as the appellant contends that the Veteran would have been rated totally disabled if not for CUE in a prior rating decision under 38 C.F.R. §3.22(b)(1) and the RO has not addressed this specific argument, to include in the August 2010 statement of the case, this issue has been added and is addressed in the remand section below. See 38 C.F.R. § 19.9(c), codifying Manlincon v. West, 12 Vet. App. 238 (1999) (in cases before the Board in which a claimant has timely filed a NOD with a determination of the AOJ on a claim, but the record reflects that the AOJ has not subsequently granted the claim in full and has not furnished the claimant with a SOC, the Board shall remand the claim to the AOJ with instructions to prepare and issue a SOC). In a December 2017 informal hearing presentation, the appellant and her representative raised the claim that there was CUE in an unappealed March 1947 rating decision that reduced the Veteran's rating for PTSD from 50 percent to 30 percent, which was previously raised in 2008 and addressed in the August 2010 statement of the case. However, here, the Veteran did not have a CUE claim pending prior to his death, therefore, the appellant cannot bring a freestanding CUE claim after the Veteran's death. See Haines v. West, 154 F.3d 1298 (Fed. Cir. 1998), cert. denied, 526 U.S. 1016, 11 (1999); Rusick v. Gibson, 760 F. 3d 1342 (Fed. Cir. 2014) (holding that Haines still stands for the proposition that a survivor cannot initiate a freestanding CUE claim under section 5109A if the Veteran had not already filed such a claim). Therefore, the freestanding CUE claim as to the March 1947 rating decision is not legally permissible, as the only exception is in the context of DIC benefits under 38 C.F.R. § 3.22(b)(1), as noted above. As noted in the December 2012 and 2013 Board remands, the RO deferred a decision on a claim of entitlement to death pension in February 2009 because it needed a complete marital history of the Veteran. The RO requested that the appellant complete and submit a VA Form 21-676c, Declaration of Status of Dependent; however, the information the RO sought was already of record. Upon remand, the RO, again, requested this information in March 2016 despite that this information is already of record. As the RO has not adjudicated this issue, the Board does not have jurisdiction over it, and it is again referred to the RO for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2016) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2016) (continuing to provide for Board referral of unadjudicated claims). The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND With regard to the appellant's claim for service connection for the Veteran's cause of death, the appellant asserts that a contributory cause of the Veteran's death was his service-connected PTSD. See 38 C.F.R. § 3.312 (entitlement to service connection for cause of death warranted when a disability related to service caused or contributed substantially or materially to the Veteran's death). The Veteran's death certificate indicates that the Veteran died of pulmonary cardiac arrest due to acute renal failure. Another significant condition that contributed to his death included anemia. She also submitted an article in November 2011, which indicates a possible association between PTSD and heart disease. VA opinions were obtained in February 2013 and February 2016. The clinicians opined that it is less likely than not the Veteran's PTSD contributed to or caused the Veteran's death. The February 2013 clinician explained that the Veteran's cause of death was septic shock and that multiple factors including hypothyroidism, dementia, degenerative joint disease, back pain, and deconditioning contributed to the Veteran's death. The clinician explained that the Veteran had not been compliant with his medical care and that the Veteran's spouse made all of his decisions and that the treatment records reflect the Veteran had pressure sores with maggots and continual loss in weight, indicative of neglect. The February 2016 psychiatrist agreed that the Veteran's PTSD did not contribute to or cause the Veteran's death and provided the same rationale as the February 2013 clinician. The Board finds the opinions are inadequate. Here, given the appellant's contention and submission of evidence that PTSD can cause heart disease, and VA's own regulatory documents have indicated a possible association between psychiatric disorders and hypertensive vascular disease for prisoners of war (POWs), the Board finds an additional VA opinion is warranted on this question. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). See also VA National Center for PTSD, Kay Jankowski, PTSD and Physical Health ("A number of studies have found an association between PTSD and poor cardiovascular health"). As detailed above, the Veteran filed a NOD with the February 2009 rating decision that also addressed the DIC benefits under 38 U.S.C. § 1318 and indicated in June 2010 that her appeal included the DIC issue. As the RO has not addressed the appellant's argument that there is CUE in the unappealed June 1945 rating decision that granted service connection for PTSD and assigned a 50 percent rating, and that a total disability rating should have been awarded at that time resulting in the Veteran being rated totally disabled for at least 10 years prior to death thus warranting compensation under 38 U.S.C. § 1318, a SOC must be provided on remand addressing this issue. See 38 C.F.R. § 19.9(c), codifying Manlincon, 12 Vet. App. 238. As the above issue is being remanded and can impact the adjudication of a the matter of entitlement to a TDIU, for accrued benefits purposes, the Board finds deferral of the claim is necessary, and thus a remand is appropriate. Accordingly, the appeal is REMANDED for the following action: 1. Issue an SOC addressing the issue entitlement to DIC benefits pursuant to 38 U.S.C. § 1318, to include as being rated totally disabled for a continuous period of at least 10 years immediately preceding death because the Veteran would have received such compensation but for CUE committed by VA in a decision on a claim filed during the Veteran's lifetime. 2. Request an opinion from an appropriate specialist VA physician as to the etiology of the Veteran's death. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's PTSD contributed substantially or materially to the Veteran's death. In addressing this question, the VA physician should specifically address the appellant's contention that the Veteran's PTSD contributed to or caused his cardiopulmonary arrest, the article submitted by the Veteran in November 2011, which indicates a possible association between PTSD and heart disease, as well as the VA's own regulatory documents that have indicated a possible association between psychiatric disorders and heart disease. A complete rationale should accompany any opinion provided. The physician is advised that the Veteran was and the appellant and any other lay witnesses are competent to report symptoms and treatment, and that these reports must be taken into account in formulating the requested opinion. 3. After the above development has been completed, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the appellant and her representative a SSOC and return the case to the Board. 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). These claims 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. §§ 5109B, 7112 (West 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).