Citation Nr: 1808404 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-33 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Pension Management Center in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Whether VA correctly calculated the Appellant's death pension payments. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant, K.S. and F.S. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1952 to July 1953. The Veteran died in July 2011. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision (cause of death) and October 2012 (death pension payment) administrative decision by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In May 2015, the Appellant, K.S. and F.S. provided testimony at a video conference hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file and reflects the record was held open for 60 days from the date of the hearing to allow the Veteran to submit additional evidence. In this regard, in September 2015 and December 2015, the Appellant submitted additional relevant evidence in the form of articles, including an article titled "Living with Bronchiectasis." The Appellant did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. See 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, the Appellant's substantive appeal was filed after February 2, 2013, and the record reflects that the additional evidence was submitted by the Appellant. Thus, a remand for the AOJ to consider such evidence is not warranted. The Board notes that in a September 2015 statement, the Appellant expressed dissatisfaction with her representative's conduct during the May 2015 Board hearing. Thereafter, in August 2016, more than one year after she was notified that her appeal had been certified to the Board in April 2015, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, which did not list a specific Veterans Service Organization (VSO) but was signed and dated by the Appellant and also contained an illegible signature within the designated box for a VSO representative's signature. The Board is unclear as to the Appellant's intent by submitting the August 2016 VA Form 21-22 as a VSO was not identified. Nonetheless, under 38 C.F.R. § 20.1304 (b)(1)(i) (2017), a request for a change of representative in an appealed case made more than 90 days after notification of certification to the Board must be made by motion to the Board on the basis of good cause. Because the Appellant has not made a motion showing good cause, the Board finds that the American Legion remains the Appellant's representative. In any event, as the decision below grants the Appellant's claim in full, any due process failure is moot. The Veteran died in July 2011, and at the time of his death, the Veteran had a pending appeal for entitlement to an evaluation in excess of 30 percent for bronchiectasis. 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 (West 2012). In September 2011, within one year of the Veteran's death, the Appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits by a Surviving Spouse or Child, which is considered both as claim for accrued benefits and a substitution request. 38 C.F.R. § 3.1010 (c) (2017); Reliford v. McDonald, 27 Vet. App. 297, 302 (2015). Thus, the AOJ should ask the Appellant to indicate whether she is pursuing a claim for entitlement to an evaluation in excess of 30 percent for bronchiectasis, as a substitute for the Veteran or on an accrued benefits basis, and adjudicate any claim accordingly based on her response. See 38 U.S.C. § 5121A (West 2012); 38 C.F.R. § 3.1010 (2017). If the Appellant responds that she would like to take the opportunity to substitute, the AOJ must decide in the first instance whether substitution is proper. 38 C.F.R. § 3.1010 (e) (2017). The issue of whether VA correctly calculated the Appellant's death pension payments is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran died in July 2011; the death certificate lists the immediate cause of death as complications of dementia, Alzheimer's type, and other significant conditions contributing to death but not resulting in the underlying cause (complications of dementia), as coronary artery disease (CAD), bronchiectasis, hypertension, and chronic obstructive pulmonary disease (COPD). 2. At the time of the Veteran's death, he was service-connected for bronchiectasis. 3. The evidence is at least in equipoise as to whether the Veteran's service-connected for bronchiectasis contributed substantially or materially to cause death, to include by hastening death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Appellant's claim granted herein, given the grant of the claim for service connection for the cause of the Veteran's death, discussion of the impact of VA's statutory and regulatory notice and duty to assist provisions on these issues, including pursuant including pursuant to 38 C.F.R. § 3.103 (c)(2) (2017) and Bryant v. Shinseki, 23 Vet App 488 (2010), is not necessary, and any deficiencies, if any exist, are harmless. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310 (West 2012); 38 C.F.R. § 3.312 (2017). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312 (c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). According to the Veteran's death certificate, he died in July 2011; the death certificate lists the immediate cause of death as complications of dementia, Alzheimer's type, and other significant conditions contributing to death but not resulting in the underlying cause (complications of dementia), as CAD, bronchiectasis, hypertension, and COPD. At the time of the Veteran's death, he was service-connected for bronchiectasis. In support of her claim, the Appellant submitted an April 2012 medical letter from the Veteran's treating physician, Thomas K. Petryk, M.D. In the April 2012 letter, Dr. Petryk stated, in part, the Veteran had been under his care for approximately one decade. In April 2012, Dr. Petryk stated, in part, although the Veteran's most immediate cause of death was generalized debilitation from dementia, likely of the Alzheimer's type, bronchiectasis was significant feature of chronic illness and certainly played some role in hastening his death. Conversely, an October 2012 VA medical opinion, in part, noted there was no mention of any bronchiectatic spells around the time of the Veteran's death, which would have been more suggestive that it had a more significant role, that in 2009 testing revealed mild obstructive disease, and there was a suggestion of pneumonia which could very well been the tipping point which caused death. The October 2012 examiner stated, in part, that people learn to adjust to their chronic disease and it was doubtful that the Veteran's bronchiectasis caused him much trouble since he was on no inhalers for it and as people lose their organic function medication does not work in the same way that it does when the person is not ill. Thus, the October 2012 found that all of these things were reasons that may have contributed to the Veteran's death from Alzheimer's disease. The October 2012 examiner opined it was less likely than not the Veteran's death was related to, or aggravated by, his service-connected bronchiectasis. After review of the record, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's bronchiectasis contributed substantially or materially to the cause of his death, to include by hastening death. The April 2012 private opinion of Dr. Petryk and October 2012 VA opinion are each considered highly probative, each are accompanied by sufficient rationale. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, the October 2012 VA opinion did not specifically address whether the Veteran's bronchiectasis contributed substantially or materially to the cause of his death, to include by hastening death, but instead addressed whether Veteran's death was related to or aggravated by his service-connected bronchiectasis. Furthermore, contrary to the October 2012 opinion, the Veteran's July 2011 private medical records did indeed reflect acute respiratory distress, although such was not specifically linked to his service-connected bronchiectasis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board affords additional weight to the April 2012 private opinion of Dr. Petryk as he was the Veteran's treating physician for the last decade. Dr. Petryk's opinion is also consistent with the death certificate itself, which as described above, listed in part, bronchiectasis as a significant condition contributing to death, and with the Appellant's testimony in which she reported the Veteran had significant pulmonary impairment at the time of his death. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, having carefully considered the claim in light of the record and the applicable law, the Board finds that the evidence is in equipoise as to whether the Veteran's bronchiectasis contributed substantially or materially to the cause of his death. In applying the benefit of the doubt to the claim, as required by law, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. REMAND An October 2012 administrative decision granted the Appellant death pension benefits. In a July 2013 notice of disagreement (NOD), the Appellant disputed the amount of the death pension benefits, specifically the medical expenses used for the pension calculation. Thereafter, an April 2014 administrative decision adjusted the Appellant's death pension benefits and noted that such was a partial grant of the claim. But see AB v. Brown, 6 Vet. App. 35, 38 (1993). The record does not reflect the Appellant withdrew her appeal as to whether VA correctly calculated her death pension payments. In this regard, the Board is the final arbiter of its jurisdiction and the record does not reflect a statement of the case (SOC) has been issued with respect to this claim. In circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in the circumstances presented in this case, the AOJ must issue an SOC on the issue of whether VA correctly calculated the Appellant's death pension payments. Accordingly, the case is REMANDED for the following action: Issue a SOC pursuant to the NOD received in July 2013, as to the October 2012 administrative decision, as to the issue of whether VA correctly calculated the Appellant's death pension payments. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations, and afford the appropriate period for response. Only if a timely substantive appeal is received for the issue, should the issue be forwarded to the Board for appellate consideration. The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs