Citation Nr: 1819455	
Decision Date: 04/03/18    Archive Date: 04/12/18

DOCKET NO.  14-23 067	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death.

2.  Entitlement to burial benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel
INTRODUCTION

The Veteran served on active duty from April 1969 to March 1971 in the United States Army.  He died in January 2012, and the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  


FINDINGS OF FACT

1.  The evidence is at least in equipoise as to whether the Veteran's service-connected PTSD materially contributed to his death.  

2.  The evidence indicates that the appellant paid $1445 in funeral expenses.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C. §§ 101, 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.25, 3.59, 3.102, 3.159, 3.312 (2017).

2.  The criteria for entitlement to service-connected burial benefits are met.  38 U.S.C. § 2307 (2012); 38 C.F.R. § 3.1704 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  DIC benefits

In this case, the Veteran's original death certificate indicates that the immediate cause of his death was colon cancer and the underlying cause was brain metastasis.  In August 2012, the death certificate was amended to include PTSD as a significant condition contributing to his death.  The appellant maintains that her husband failed to seek appropriate medical treatment for colon cancer because of his PTSD symptomatology, to include feelings of hopelessness and mistrust.  For the reasons explained below, and resolving reasonable doubt in her favor, the Board finds that service connection for the cause of the Veteran's death is warranted.

DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability.  38 U.S.C. § 1310.  The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death.  To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or 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.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).

Prior to his death, the Veteran's service-connected PTSD was rated as 70 percent disabling and he was receiving a total disability rating based on individual unemployability (TDIU).  He did not have any other service-connected disabilities.

A May 2009 VA treatment record indicates that the Veteran had a history of hemorrhoids and that he agreed to have a colonoscopy done at his next appointment.  In August 2009, it was noted that he had a history of rectal bleeding with bowel movements off and on and he agreed to have a colonoscopy at his next appointment.  In November 2009, a colonoscopy found a large ulcerated mass, which was identified as moderately differentiated adenocarcinoma.  In December 2009, it was noted that he had bleeding symptoms and some rectal discomfort for six to eight months.  In January 2010, his physician discussed his diagnosis and treatment with him and noted that the Veteran was a little distraught, but optimistic.

A March 2010 VA treatment record indicates that the Veteran underwent surgery, which involved a low anterior resection and loop ileostomy, and concurrent chemotherapy.  In May 2010, a physician indicated that he adamantly declined any further chemotherapy, although it would benefit him in the adjuvant setting.  It was noted that he understood that by foregoing chemotherapy, he might relapse and his disease might progress.  He stated that follow up visits would be too much of a burden.

Private treatment records dated in November 2011 indicate that the Veteran was hospitalized for progressive numbness and weakness in his right upper extremity and right lower extremity.  He was diagnosed with metastatic cancer to the brain, lungs, and abdomen.  He passed away in January 2012.

In an April 2012 letter, a licensed clinical social worker, L.B., stated that she had treated the Veteran from the end of June 2005 until his death in January 2012.  She indicated that the Veteran was an extremely angry man who, when asked what his therapeutic goals were, stated, "look man, I don't even want to be here, your office or life.  I don't know what to say to that question."  She indicated that he exhibited almost all of the symptoms of PTSD, including a significant distrust of authority figures, to include herself and any doctors with whom he had contact with up until his death.  She indicated that approximately two years prior to his death, he reported that his doctor told him that he had hemorrhoids and wanted to do a colonoscopy, but he stated, "nobody is going to stick anything up my ass."  The social worker opined that due to the Veteran's PTSD symptomatology, "it is more likely than not, that had he permitted his VA doctor, at that time, to do a colonoscopy, [the Veteran] would still be alive today.  Unfortunately, [the Veteran's] choice not to do so resulted in colon cancer and the removal of part of his colon in the later stages of his treatment."

In this case, there is evidence that the Veteran had severe symptoms of PTSD that included anger, mistrust, and social isolation.  There is also evidence that the Veteran delayed getting a colonoscopy approximately six to eight months after he began experiencing symptoms.  Furthermore, the evidence indicates that after surgery, he declined any further treatment even though it was recommended by his doctor and even though he was counseled that he could relapse and his disease could progress.  

In light of the medical and lay evidence, and resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran's service-connected PTSD materially contributed to his death.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

II. Burial Benefits

Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses.  Specifically, VA removed the current regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new §§ 3.1700 through 3.1713.  As this claim was pending at the time of the regulation change, the Board will analyze the claim under both the old and the new regulations.

When a Veteran dies as the result of a service-connected disability, VA shall pay the burial and funeral expenses incurred in connection with the death of the veteran in an amount not exceeding $2,000.  38 U.S.C. § 2307; 38 C.F.R. § 3.1704 (b)(previously at 38 C.F.R. § 3.1600 (a)).  

In September 2012, the RO denied burial benefits to the appellant because the evidence indicated that the expenses were paid by the Veteran's brother (P.S.).  The Board notes that the evidence showing this is not of record.  In May 2015, the appellant submitted an amended copy of the funeral bill in the amount of $1445, which indicates that it was paid in full by her.  The original payer was crossed out and her name substituted; the change was initialed.  Significantly, however, she also submitted a merchant copy of the receipt, which indicates that she paid the funeral home $1445 using her credit card.  

In this case, as determined above, the Veteran's death has been service connected and, resolving reasonable doubt in the appellant's favor, the evidence indicates that she paid $1445 in burial expenses.  Consequently, the appellant's claim for burial benefits is warranted.  


ORDER

Entitlement to DIC benefits on the basis of service connection for the cause of the Veteran's death is granted.

Entitlement to VA burial benefits at the service connected rate is granted.



____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs