Citation Nr: 1815676 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-15 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Whether the appellant is entitled to recognition as the surviving spouse of the Veteran for Dependency and Indemnity Compensation (DIC) and death pension benefits. 3. Entitlement to burial benefits. 4. Entitlement to accrued benefits. ATTORNEY FOR THE BOARD C. O'Donnell, Associate Counsel INTRODUCTION The Veteran had active military service from May 1944 to May 1946. The Veteran died in March 1986. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 decisions issued by the Department of Veterans Affairs (VA). The Board notes that jurisdiction of the case has been transferred to the VA Regional Office (RO) in Houston, Texas. On her April 2014 VA Form 9, the appellant requested a hearing before the Board. However, she cancelled her request by letter dated November 2016. The issue of entitlement to service connection for the cause of the Veteran's death was previously denied in 1986; however the claim is being reconsidered as the Veteran's service treatment records were apparently not associated with the virtual file/VA benefits file until 2015. 38 C.F.R. § 3.156(c). FINDINGS OF FACT 1. The veteran died in March 1986. 2. The death certificate lists the immediate cause of the Veteran's death as multiple cerebrovascular accidents (CVAs) due to or as a consequence of myocardial infarction. 3. At the time of the Veteran's death, service connection was not in effect for any disabilities. 4. The Veteran did not sustain a cardiovascular injury or disease in service; symptoms of a cardiovascular disorder were not chronic in service and were not continuous after separation from service; the CVAs and the myocardial infarction that immediately caused the Veteran's death are not related to service or manifested to a compensable degree within one year of separation from service. 5. In July 2013, more than one year after the veteran's death, the appellant filed a claim of entitlement to accrued benefits. 6. There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to recognition of the appellant as the surviving spouse of the Veteran; the appellant was recognized by VA as the surviving spouse of the Veteran by the RO on or about August 2014. 7. There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to burial benefits; the appellant was notified of her award of burial benefits in a June 12, 1986 letter. CONCLUSION OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1131, 1310, 1312, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e), 3.312 (2017). 2. As the benefit sought on appeal has been granted with respect to the issue of entitlement to recognition of the appellant as the surviving spouse of the Veteran, there remains no case or controversy as to that issue. 38 U.S.C. § 7105 (d)(5) (West 2014); 38 C.F.R. § 20.101 (2017). 3. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to burial benefits. 38 U.S.C. § 7105 (d)(5) (West 2014); 38 C.F.R. § 20.101 (2017). 4. The July 2013 claim of entitlement to accrued benefits was not timely filed. 38 U.S.C. § 5121; 38 C.F.R. §§ 3.1000(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for the Cause of the Veteran's Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131 (West 2002). When a chronic disease is shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b) (2011); see also Savage v. Gober, 10 Vet. App. 488, 498 (1997). A "chronic disease in service" requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'chronic.' Id. When the disease identity is established, there is no requirement of evidentiary showing continuity; however, continuity of symptomatology after discharge is required to support the claim only where the condition noted during service is not, in fact, shown to be chronic or the diagnosis of chronicity may be legitimately questioned. Id. Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. 38 U.S.C.A. § 1310 (West Supp. 2011); 38 C.F.R. § 3.312(a) (2017). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly 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). 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. 38 C.F.R. § 3.312(c)(1). 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The death certificate of record shows that the Veteran died in March 1986. The death certificate listed his immediate cause of death as multiple cerebrovascular accidents (CVAs) due to or as a consequence of myocardial infarction. At the time of the Veteran's death, service connection was not in effect for any disabilities. After a full review of the record, the Board concludes that service connection for the cause of the Veteran's death is not warranted. With regard to the first inquiry, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a cardiovascular injury or disease, including a CVA or myocardial infarction, in service; that symptoms of a cardiovascular disorder were not chronic in service; and that symptoms of a cardiovascular disorder were not continuous after separation from service. The evidence of record does not indicate, nor does the appellant assert, that the Veteran sustained a cardiovascular injury or disease in service. The service treatment records include a service separation examination that notes that cardiovascular examination, including the heart and blood vessels, was normal. A May 1978 record noted that the Veteran had experienced episodes of numbness and tingling on the right-sided extremities for the past two to three weeks; that he developed gradual weakness of the left-sided extremities several days prior and was hospitalized. It was noted that "[t]here is no past history of any similar type episodes." He was assessed with a right hemisphere vascular accident. The Board finds the gap between discharge from honorable active service in 1946 and the Veteran's initial complaint of CVA episode in 1978 is highly significant. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). As such, the Board finds that the Veteran's symptoms of a cardiovascular disorder were not continuous after separation from service. Moreover, the evidence of record does indicate the CVAs or myocardial infarction is related to service. The Board has considered whether service connection for the cause of the Veteran's death can be granted on a presumptive basis as both CVA and myocardial infarction are contemplated under the term cardiovascular-renal disease for which service connection is available if manifests to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a) (2017). As noted above, the Veteran's symptoms developed many years after service, not during the first year after separation from service. The evidence of record indicates that CVA or myocardial infarction was not manifested within one year after discharge form active service. Therefore, service connection for the immediate cause of death on a presumptive basis is not warranted. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. The Board notes that the question of causation in this case involves a complex medical issue that is beyond the appellant's personal knowledge, thus she is not competent to address the medical etiology of the cause of the Veteran's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With respect to her specific contentions, the August 2014 report of general information notes, "[s]he is not sure but she thinks his death may be related to his WWII experiences." For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; therefore, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Recognition as Surviving Spouse and Burial Benefits There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to recognition of the appellant as the surviving spouse of the Veteran. The appellant was recognized by VA as the surviving spouse of the Veteran by the RO on or about August 2014. See August 21, 2014 report of general information noting "[h]er status as a dependent is approved." There is currently no justiciable case or controversy for active consideration by the Board on the issue of entitlement to burial benefits. The appellant was notified of her award of burial benefits in a June 12, 1986 letter. See August 21, 2014 report of general information noting "[s]he is not appealing the decision on burial benefits this benefit was paid in 1986." Accrued Benefits Applications for accrued benefits must be filed within one year after the date of a death. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). The appellant's July 2013 claim was not filed within the one year period mandated by law. Because the current claim is untimely, there is no legal basis for payment of accrued benefits. ORDER The appeal as to the issue of service connection for the cause of the Veteran's death is denied. The appeal as to the issue of entitlement to recognition as the surviving spouse of the Veteran is dismissed. The appeal as to the issue of burial benefits is dismissed. The appeal as to the issue of accrued benefits is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs