Citation Nr: 18145039 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-28 642 DATE: October 26, 2018 ORDER Entitlement to an effective date prior to April 24, 2012 for the grant of service connection for cause of the Veteran's death is denied. FINDINGS OF FACT 1. In a final January 2008 rating decision, the RO denied entitlement to service connection for cause of the Veteran’s death on the basis that the objective evidence of record did not show the cause of his death was related to his service-connected disabilities. 2. The appellant did not appeal the January 2008 rating decision and no exception to finality applies in this case. 3. On April 24, 2012, the appellant submitted a request to reopen the previously denied claim for service connection for cause of the Veteran’s death and, in support of her claim, submitted medical evidence establishing that the Veteran’s service-connected bilateral lower extremity arteriosclerosis obliterans contributed to cause his death. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2012 for the grant of service connection for cause of the Veteran’s death have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1978 and from April 1986 to October 1998. He died in May 2007. The appellant is his surviving spouse. This matter is on appeal from an October 2014 rating decision. 1. Entitlement to service connection for cause of the Veteran's death In the October 2014 rating decision on appeal, the RO granted service connection for cause of the Veteran’s death, effective April 24, 2012, the date of receipt of the appellant’s request to reopen the previously denied claim. The RO granted the appellant’s claim on the basis of an independent medical opinion from Dr. Gerchick in which he opined that the Veteran’s service-connected bilateral lower extremity arteriosclerosis obliterans directly contributed to the aspiration pneumonia that led to his death and was received by VA in December 2013. See October 2014 Rating Decision; December 2013 statement from Dr. Gerchick. The appellant contends that the effective date for service connection for cause of the Veteran’s death should be May 30, 2007, the date she filed her initial claim for that benefit. Generally, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b)(2)(ii). The record reflects that the appellant filed a claim seeking service connection for cause of the Veteran’s death in May 2007. In support of her claim, the appellant argued that the Veteran’s service-connected bilateral lower extremity arteriosclerosis obliterans and hypertension disabilities aggravated the disabilities that are listed as the causes of death on his death certificate, which in this case are cardiopulmonary arrest due to or as a consequence of sepsis and pneumonia. See Official Certificate of Death. The appellant also submitted private medical records from Sierra Vista Regional Health Center and Tucson Medical Center which document the treatment the Veteran received in the weeks and days prior to his death in May 2007. She also submitted a September 2007 statement from C.S., the home health care professional who cared for the Veteran from March 2007 until his death, in which she opined that the Veteran’s deteriorating health was the direct result of his hypertension and advanced arteriosclerosis. In January 2008, the RO denied entitlement to service connection for cause of the Veteran’s death on the basis that the objective evidence did not show that the cause of death was related to his service-connected disabilities. The appellant did not appeal the RO’s determination; nor did she submit any relevant evidence within one year of receiving notice of the January 2009 rating decision. However, the appellant’s attorney has argued that the provisions of 38 C.F.R. § 3.156 (b) and (c) are applicable in this case. In this context, the appellant’s attorney has argued that the January 2008 rating decision did not become final because service treatment records (STRs) were added to the record following the January 2008 rating decision and were used to support Dr. Gerchick’s December 2013 statement on which the appellant’s benefits were granted. See January 2015 Notice of Disagreement. In February 2015, Dr. Gerchick submitted an additional statement indicating that his initial statement was based in part on medical records from the Veteran’s second period of active service. See February 2015 statement from Dr. Gerchick. At the outset, the Board notes that the January 2008 rating decision reflects that the entire claims file was reviewed but specifically lists STRs from the Veteran’s first period of service as evidence that was considered at that time. In this regard, previous rating decisions reflect that STRs from the Veteran’s first and second periods of service were considered, and, thus, associated with the claims file. See e.g., June 2002 rating decision; February 2005 rating decision. Even if the Board assumed that STRs from the Veteran’s second period of service were not of record at the time of the January 2008 rating decision, the Board finds that those STRs do not contain any information or evidence relevant to whether the Veteran’s service-connected bilateral lower extremity arteriosclerosis obliterans (or any other service-connected disability) caused or contributed substantially or materially to his death. The Board has considered Dr. Gerchick’s February 2015 statement and, while he has identified several notations in the STRs that were used to form his initial opinion, the information and evidence identified by Dr. Gerchick relates to the nature, treatment, and deterioration of the Veteran’s disability during service. However, because service connection had been established for bilateral lower extremity arteriosclerosis obliterans prior to the Veteran’s death, the nature and treatment of his disability in service is not relevant to whether his service-connected disability caused or contributed to his death that occurred more than nine years after separation from service. In this regard, the Board notes that Dr. Gerchick’s initial conclusion was that the pain from service-connected bilateral lower extremity arteriosclerosis obliterans was not properly treated and led to overuse of alcohol as a means of self-medication, which resulted in an altered sensorium that directly contributed to the aspiration pneumonia that killed him. See December 2013 statement from Dr. Gerchick. While Dr. Gerchick has identified evidence in the STRs that show the Veteran’s bilateral lower extremity arteriosclerosis obliterans resulted in pain that was not properly addressed during his second period of service, he has not identified any evidence in the STRs that shows the Veteran abused alcohol or exhibited the altered sensorium that directly contributed to the aspiration pneumonia that caused his death in May 2007. Instead, Dr. Gerchick identified only one previous, similar instance when the Veteran required aspiration following alcohol abuse and a state of stupor, which occurred one year prior to his death, as opposed to during his second period of service. See December 2013 statement from Dr. Gerchick; February 2015 statement from Dr. Gerchick. Therefore, the STRs do not contain any relevant evidence regarding the cause of the Veteran’s death. As no relevant evidence was received following the January 2008 rating decision and no other pertinent exception to finality applies in this case, the Board finds the January 2008 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Thereafter, in April 2012, the appellant submitted a statement requesting that the previously denied claim for cause of death be reopened. The evidentiary record does not contain any communication or action by the appellant or her representative prior to April 24, 2012 that indicates an intent to reopen the previously denied claim. Additionally, neither the appellant nor her attorney have argued or provided evidence establishing clear and unmistakable error (CUE) was made in the final January 2008 rating decision. Given the foregoing, the general rules with respect to the effective date for an award of service connection based on a claim reopened after a final disallowance are applicable in this case and require that the effective date for such claim be the latter of the date entitlement arose or the date VA received the claim. See 38 C.F.R. § 3.400 (r). As discussed above, the appellant submitted her request to reopen the previously denied claim for that benefit on April 24, 2012 and the evidence that establishes the Veteran’s service-connected bilateral lower extremity arteriosclerosis obliterans contributed to his death was received in December 2013. Therefore, the effective date for the grant of service connection for cause of the Veteran’s death can be no earlier than April 24, 2012, which is the currently assigned effective date. Accordingly, the appellant’s claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel