Citation Nr: 18146962 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-33 105 DATE: November 5, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. 1318 is dismissed. REMANDED Entitlement to accrued benefits is remanded. FINDING OF FACT 1. The Veteran died in July 2013; the certificate of death provides that the cause of death was progressive supranuclear palsy. 2. At the time of the Veteran’s death, service connection had been established for difficulty swallowing due to Parkinson’s disease at 30 percent disabling; type II diabetes mellitus with erectile dysfunction at 20 percent disabling; left-hand tremor associated with Parkinson’s disease at 10 percent disabling; right-hand tremor associated with Parkinson’s disease at 10 percent disabling; peripheral neuropathy, left lower extremity associated with Parkinson’s disease at 10 percent disabling; peripheral neuropathy, right lower extremity associated with Parkinson’s disease at 10 percent disabling; tinnitus at 10 percent disabling; post-traumatic stress disorder (PTSD) at 10 percent disabling; hypertension associated with type II diabetes mellitus with erectile dysfunction, noncompensable; migraine headaches associated with Parkinson’s disease, noncompensable; and bilateral sensorineural hearing loss, noncompensable. 3. The competent and credible evidence of record is at least in equipoise, indicating that the Veteran’s death was caused by his service-connected disabilities. 4. By virtue of the grant of service connection for the cause of the Veteran’s death herein, the claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is rendered moot. CONCLUSION OF LAW 1. Affording the Appellant the benefit of the doubt, the criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The Appellant’s claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to August 1969. 1. Entitlement to service connection for the Veteran’s cause of death is granted. The Appellant, the Veteran’s widow, contends that the Veteran’s death was caused by service-connected disabilities associated with Parkinson’s disease, to include difficulty swallowing, right and left-hand tremors, peripheral neuropathy of the right and left lower extremities, and migraine headaches. When a Veteran dies of a service-connected disability, the Veteran’s surviving spouse is eligible for DIC. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5 (a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. The Veteran died in July 2013. The certificate of death provides that the cause of death was progressive supranuclear palsy. At the time of the Veteran’s death, service connection had been established for the following disabilities at the following rates: difficulty swallowing due to Parkinson’s disease at 30 percent disabling; type II diabetes mellitus with erectile dysfunction at 20 percent disabling; left-hand tremor associated with Parkinson’s disease at 10 percent disabling; right-hand tremor associated with Parkinson’s disease at 10 percent disabling; peripheral neuropathy, left lower extremity associated with Parkinson’s disease at 10 percent disabling; peripheral neuropathy, right lower extremity associated with Parkinson’s disease at 10 percent disabling; tinnitus at 10 percent disabling; PTSD at 10 percent disabling; hypertension associated with type II diabetes mellitus with erectile dysfunction, noncompensable; migraine headaches associated with Parkinson’s disease, noncompensable; and bilateral sensorineural hearing loss, noncompensable. Upon careful review of the record, the Board finds that service connection for cause of death is warranted. In particular, the Board finds persuasive, a January 2016 medical opinion from two of the Veteran’s treating physicians at the G.R.H.V., the facility where the Veteran resided for seven months and then passed away on July 5, 2013. The opinion states that at the time of the Veteran’s admission to the facility, he was severely debilitated, suffered frequent falls, and had a restricted diet because of oropharyngeal dysphagia as related to his progressive neurological illness. His condition progressed, and eventually he was placed under hospice care. The physicians state that the Veteran expired as a consequence of his progressive neurological disorder, with impaired swallowing and aspiration pneumonitis, and that, in their opinion, the Veteran’s progressive debility, which predated his admission to the facility for several years, was related to Parkinson’s symptoms. In essence, the physicians stated that the Parkinsonian symptoms contributed to the Veteran’s ultimate passing. It is noteworthy that at the time that service connection was granted for the Parkinsonian symptoms, the standing diagnosis was one of Parkinson. This was alter amended to be supranuclear palsy. However, nowhere in the record is there anything that disassociates the service connected Parkinsonian symptoms to the diagnosis of supranuclear palsy. Thus, the amendment to the diagnosis from Parkinson to supranuclear palsy prior has no bearing on the resolution of the issue as the Veteran continued to be service connected for Parkinsonian symptoms at the time of his death and these have been found to have contributed to his demise. The Board acknowledges the September 2013 VA opinion, which avers that the Veteran’s death was not caused by or a result of his service or service-connected disabilities, including Parkinson’s disease. However, the Board finds this opinion actually supports a finding of service connection. While the examiner based the ultimate conclusion that the Veteran’s service connected disabilities did not contribute to the Veteran’s death on the fact that he was not service connected for pseudoneuclear palsy at the time of his death, as noted above, the Board has found that the diagnosis, whether Parkinson or supranuclear palsy, is not determinative of the issue. Moreover, the examiner stated that the symptoms the Veteran experienced, for which service connection was in effect at the time of his death, were related to the diagnosed palsy. Therefore, the opinion, overall, supports the conclusion that the service connected symptoms contributed to the Veteran’s death. The Board is also aware of the April 2016 VA opinion, which declines to find a nexus between the Veteran’s service-connected disabilities and his death. Here, the examiner states that the Veteran died from natural progression of a progressive neurological disorder, progressive supranuclear palsy. The examiner acknowledges that some of the initial symptoms of this disease may be confused with Parkinson’s disease symptoms, which led to a misdiagnosis of Parkinson’s disease. As with the September 2013 opinion, while negative in conclusion, the Board finds that the rationale for the April 2016 opinion, in conjunction with the January 2016 opinion, supports a finding of service connection for cause of death. The April 2016 examiner states that the disease which led to the Veteran’s passing had symptoms previously identified as being due to Parkinson’s disease. The January 2016 opinion states that the progression of his Parkinsonian symptoms contributed to his demise. These symptoms included impaired swallowing and aspiration pneumonitis. The Board notes that the Veteran is service-connected for difficulty swallowing due to Parkinson’s disease. Accordingly, the Board finds this sufficient medical evidence to conclude that the deterioration of the Veteran’s symptoms of his service-connected disabilities caused his death. In summary, the competent and credible evidence shows that the Veteran’s cause of death was caused by service-connected disabilities, associated with Parkinson’s disease. In the alternative, at the very least, the probative and competent evidence of record is in equipoise as to whether the Veteran’s death is causally related to his service-connected disabilities, in which case the benefit of the doubt must be resolved in the appellant’s favor. Accordingly, service connection for cause of death is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to DIC under 38 U.S.C. 1318 is dismissed. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran’s surviving spouse in the same manner as if the Veteran’s death is service-connected, even though the veteran died of nonservice-connected causes. In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA dependency and indemnity compensation. See generally, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). Because in this decision the Board has granted service connection for the cause of the Veteran’s death under the provisions of 38 U.S.C. § 1310, the matter of the appellant’s alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. See generally, Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). REASONS FOR REMAND Entitlement to accrued benefits is remanded. The Board notes that the September 2013 rating decision denied accrued benefits, as well as entitlement to DIC under 38 U.S.C. 1318, and service connection for the Veteran’s cause of death. The Appellant submitted a timely notice of disagreement (NOD) with the September 2013 rating decision. Specifically, she stated that she was submitting “an official the NOD with the VA’s decision to deny benefits.” The Board interprets this statement to include the decision to deny accrued benefits, for which a statement of the case (SOC) has not yet been issued. Accordingly, a remand is required for the AOJ to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the Appellant and her representative an SOC that addresses the issue of entitlement to accrued benefits. If the Appellant perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel