Citation Nr: 18159830 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-13 891 DATE: December 20, 2018 ORDER Entitlement to service connection for the cause of Veteran’s death is denied. REMANDED Entitlement to an effective date earlier than June 14, 2005 for the award of service connection for posttraumatic stress disorder (PTSD), based upon substitution of the appellant as the claimant, is remanded. Whether a June 18, 1993 rating decision that denied service connection for PTSD contained clear and unmistakable error (CUE), based upon substitution of the appellant as the claimant, is remanded. Entitlement to an effective date earlier than June 14, 2005 for the award of service connection for PTSD, for accrued benefits purposes, is remanded. FINDINGS OF FACT 1. The Veteran’s immediate cause of death was cardiopulmonary arrest due to atrial fibrillation, cardiomyopathy, congestive heart failure, and coronary artery disease, with diabetes as a significant condition contributing to death. 2. During the Veteran’s lifetime, service connection was established for PTSD, cold injury of the right and left feet, peripheral neuropathy of the right and left lower extremities, tinnitus and malaria. 3. The evidence does not show that the Veteran’s service-connected disorders caused or contributed to his cause of death, or that any of the disabilities listed on his death certificate had its onset during service or was related to any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are not satisfied. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1949 to October 1952. He passed away in July 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The appellant requested a hearing before the Board in her March 2016 substantive appeal. A hearing was scheduled for March 2017, for which the appellant failed to appear. Accordingly, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board has considered the appellant’s claim and decided entitlement based on the evidence. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for the cause of the Veteran’s death is denied. Service connection for the cause of the Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principle, or a contributory, cause of the Veteran’s death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Here, the Veteran’s death certificate shows he died in July 2012 due to cardiopulmonary arrest due to atrial fibrillation, cardiomyopathy, congestive heart failure, and coronary artery disease. See July 2012 Death Certificate. Diabetes is also listed as other significant condition which contributed to the Veteran’s death. Id. The Veteran was not service connected for any of the disabilities cited on his death certificate. Rather, at the time of his death, he was service connected for PTSD, cold injury of the right and left feet, peripheral neuropathy of the right and left lower extremities, tinnitus and malaria. See April 2013 Rating Code Sheet. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a disease enumerated by the regulations, including cardiovascular disease and diabetes mellitus, type II, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. The appellant does not assert, nor does the evidence show, that the Veteran’s service-connected PTSD, cold injury of the right and left feet, peripheral neuropathy of the right and left lower extremities, tinnitus and/or malaria caused or contributed to cause the Veteran’s death. The Board finds there is no evidence to suggest the Veteran experienced any symptoms of a general heart disability during his active duty service. Furthermore, a review of the Veteran’s post-service medical records does not show any treatment for or diagnosis of any heart condition within one year of his separation from military service. Similarly, there is no evidence establishing any in-service occurrence of diabetes during his military service or within one year thereafter. There is no competent and credible lay or medical evidence of record suggesting a relationship between any of the disabilities listed on the Veteran’s death certificate and his military service. In short, there is no competent evidence that links the Veteran’s cause(s) of death to a service-connected disability or a disability, injury or event that is otherwise shown to have begun in service. As such service connection is not warranted for the disabilities listed on the Veteran’s death certificate. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As such, the preponderance of the evidence is against the claim, the benefit of-the-doubt doctrine does not apply, and the claim for service connection for the cause of the Veteran’s death must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to an effective date earlier than June 14, 2005 for the award of service connection for PTSD, based upon substitution of the appellant as the claimant, is remanded. 2. Whether a June 18, 1993 rating decision that denied service connection for PTSD contained CUE, based upon substitution of the appellant as the claimant, is remanded. In a June 1993 rating decision, the RO denied the Veteran’s claim for service connection for PTSD. The Veteran did not appeal. On June 14, 2005, the Veteran sought to reopen his claim for service connection for PTSD. In a November 2005 rating decision, the RO granted service connection for PTSD, effective June 14, 2005. In December 2005, the Veteran submitted a timely notice of disagreement (NOD) with the June 24, 2005 effective date assigned for the award of service connection for PTSD. He also asserted that there was clear and unmistakable error (CUE) in the June 1993 rating decision that had previously denied his claim for service connection for PTSD. The RO denied the CUE claim in an August 2006 rating decision. Later that same month, the Veteran submitted a timely NOD with the August 2006 rating decision. On July 10, 2007, the RO issued a Statement of the Case on the Veteran’s claim for an earlier effective date for the award of service connection for PTSD, to include whether there was CUE in the June 1993 rating decision. On July 30, 2007, the Veteran submitted a written statement (with attachments) which constitutes a timely substantive appeal with the November 2005 and August 2006 rating decisions. See 38 C.F.R. §§ 20.200, 20.202 (2005). The law permits substitution of claimants when the original claimant dies during the pendency of the claim or appeal, on or after October 10, 2008. 38 U.S.C. § 5121A. As noted above, the Veteran died in July 2012. At the time of his death, the claims discussed above were pending. The appellant filed an Application for Dependency, Indemnity, and Compensation (DIC), Death Pension and Accrued Benefits by Surviving Spouse or Child in August 2012, which is considered a request for substitution as well as a request for accrued benefits. 38 C.F.R. § 3.1010(c)(2). It does not appear from a review of the current record that a substitution eligibility determination has been made by the RO. This must be accomplished on remand. 1. Entitlement to an effective date earlier than June 14, 2005 for the award of service connection for PTSD, for accrued benefits purposes, is remanded. While substitution under 38 U.S.C. § 5121A is a form of accrued benefits claim, it is potentially more favorable to the appellant because it allows her to continue to submit evidence in support of the appealed issues, whereas the evidence in an accrued benefits claim under 38 U.S.C. § 5121 is limited to evidence in the claims file as of the date of a Veteran's death. Thus, the appellant's claim for an effective date earlier than June 14, 2005 for the award of service connection for PTSD, for accrued benefits purposes (under 38 U.S.C. § 5121), is deferred pending a substitution eligibility determination by the RO. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a notice letter that explains substitution pursuant to 38 C.F.R. § 3.1010. Afford her the opportunity to submit additional evidence or argument in furtherance of the claim. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Adjudicate whether the appellant is eligible to substitute for the deceased Veteran for the purpose of continuing the claims of entitlement to an effective date earlier than June 14, 2005 for the award of service connection for PTSD and whether a June 18, 1993 rating decision that denied service connection for PTSD contained CUE. Send the appellant appropriate notice with respect to her status as a substituted party, or lack thereof. 3. If the appellant is deemed to be a proper substitute for continuing the claims of entitlement to an effective date earlier than June 14, 2005 for the award of service connection for PTSD and whether a June 18, 1993 rating decision that denied service connection for PTSD contained CUE, then readjudicate the claims after allowing her the appropriate time to submit evidence supportive of her assertions. If the benefit(s) sought remains denied, issue a supplemental statement of the case and return the case to the Board. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel