Citation Nr: 20003141 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-13 910 DATE: January 14, 2020 ORDER 1. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 (2012) is denied. REMANDED 2. Entitlement to DIC on the basis of service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death, his death occurred approximately 72 years after his separation from active duty service, and he was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for entitlement to DIC under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1942 to December 1945. The Veteran died in September 2017. The appellant is his surviving spouse. 1. Entitlement to DIC under the provisions of 38 U.S.C. § 1318. A surviving spouse may establish entitlement to DIC in the same manner as if a veteran’s death were service connected where it is shown that a veteran’s death was not the result of willful misconduct, and a veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) a veteran was a former POW who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be schedular or may be a total disability evaluation for compensation based on individual unemployability (TDIU). 38 C.F.R. § 3.22(c). At the time of the Veteran’s death, he was service connected for bilateral hearing loss, which was rated as 60 percent disabling, effective April 1, 2013; posttraumatic stress disorder (PTSD) with adjustment disorder and depressed mood, which was rated as 50 percent disabling, effective May 13, 2014; and tinnitus, which was rated as 10 percent, effective April 1, 2013. The Veteran’s combined disability rating was 80 percent, effective April 1, 2013 and he was entitled to a TDIU from that date. The Veteran died in September 2017. In light of the foregoing, the record shows the Veteran was not in receipt of a total service-connected disability rating for 10 years at the time of his death. His death in September 2017 occurred approximately four and one-half years after his total service-connected disability rating based on TDIU and 72 years after his separation from active duty service in December 1945. Lastly, the Veteran’s service treatment and personnel records do not suggest that he was a former POW. Therefore, there is no legal basis for entitlement to DIC under the provisions of 38 U.S.C. § 1318. Thus, the appellant’s claim must be denied as a matter of law. The Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to this country, however, it is bound by the law and regulations governing the payment of VA benefits, which requires the total rating for a 10-year period for entitlement to DIC under the provisions of 38 U.S.C. § 1318 prior to death. REASONS FOR REMAND 2. Entitlement to DIC on the basis of service connection for the cause of the Veteran’s death is remanded. The appellant asserts that service connection for cause of the Veteran’s death is warranted as secondary to the Veteran’s service-connected PTSD. The appellant’s representative has submitted a medical opinion from Dr. M.B. dated August 19, 2019. She opined that it is as likely as not that the Veteran’s PTSD contributed materially and substantially to the development of and permanent aggravation of his hypertension and various heart conditions, which were the cause of the Veteran’s death. Dr. M.B. has proffered three articles, 1) Are Symptoms of Anxiety and Depression Risk Factors for Hypertension; 2) Anxiety and Heart Disease; and 3) Depression and Cardiovascular Disease: A Call for Recognition along with her opinion. Dr. M.B. opined that the Veteran’s hypertension and heart conditions were aggravated by his PTSD; however, she did not provide a medically established baseline. The Board notes that secondary service connection on the basis of aggravation may only be granted when there is an increase in severity of the nonservice-connected beyond a medically established baseline due to the service-connected disability. The regulation explains that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In light of the evidence submitted by the appellant and her representative, the Board finds that the current medical evidence of record does not provide the information necessary for the Board to make a decision on the claim. As such, a remand for a VA medical opinion is necessary. The matters are REMANDED for the following action: Provide the Veteran’s claims file to a qualified medical professional with the appropriate expertise to address the appellant’s claim for Dependency and Indemnity Compensation (DIC) on the basis of entitlement to service connection for the cause of the Veteran’s death. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from October 1942 to December 1945. • The Veteran died in September 2017, when he was 93 years old. The Veteran’s death certificate shows the immediate cause of death as “coronary artery disease” with other significant conditions contributing to death but not resulting in underlying cause of “pulmonary carcinoma” with the manner of death being, “Natural.” See VBMS entry with document type entitled “Death Certificate,” receipt date 10/30/2017. • At the time of the Veteran’s death, he was in receipt of service connection for (1) posttraumatic stress disorder (PTSD) with adjustment disorder and depressed mood; (2) bilateral hearing loss; and (3) tinnitus. • The Veteran was not service connected for hypertension, coronary artery disease, or pulmonary carcinoma. • The Veteran’s wife is seeking benefits, wherein she alleges that the Veteran’s death was caused by or contributed by the symptoms caused by the Veteran’s service-connected PTSD. • There are medical records from Partners Healthcare “Cardiology” dated between 1997 and 2011. There is a December 2003 record that shows a finding of “CAD – recent stress test equivocal for inferior ischemia.” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/19/2011, at p. 44. • A February 2009 cardiac ultrasound was done because of atrial fibrillation and coronary artery disease. The results are reported in detail. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/19/2011, at p. 13 (bottom of page) – 14. • The records from cardiology show that the Veteran’s hypertension was described as well controlled in February 2007, July 2007, October 2007, July 2008, November 2008, May 2009, May 2010, and May 2011. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/19/2011, at pp. 18, 23, 26, 28, 30, 32, 34, 36, • Dr. Alfred Baum treated the Veteran from January 2010 to July 2011 for multiple medical complaints. In his treatment records, there is a list of “Problems,” that includes 25 diagnoses, which are as follows: thrush, hyponatremia, abdominal pain, urinary frequency, cellulitis, laceration, altered mental status, psoriasis, coumadin therapy, back pain, generalized degenerative joint disease, leg abrasion, tick bite, vertigo, memory loss, upper respiratory infection, GERD, arteriosclerotic heart disease, recurrent deep vein thrombophlebitis, benign prostatic hypertrophy, spinal stenosis, sick sinus syndrome, hypertension, hyperlipidemia, and diabetes mellitus. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/20/2011, at p. 3. • Dr. Baum discussed the Veteran’s mental state on approximately four occasions with no mention of PTSD. In July 2010 (on two, different occasions) and September 2010, he described the Veteran as alert and cooperative; normal mood and affect, normal attention span and concentration. In March 2011, his affect was described as “ok” following a hospitalization for “a delirium that proved to be related to influenza.” In April 2011, the Veteran was described as having “some anxiety.” At the time of this anxiety, the Veteran expressed that he was “petrified of having a hypoglycemic episode at night” and would avoid going to bed if his blood glucose level was less than 150 without taking snacks and then rechecking it until it was greater than 150. This was described as causing a disruption to the Veteran’s sleep and life and his wife’s life. Dr. Baum described the Veteran as being more frustrated than depressed. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/20/2011, at pp. 24, 27, 40, 44, 52. • In March 2011, Dr. Baum had the Veteran undergo a “Mini-Mental State Examination,” which showed he received a total score of 28 out of 30, which is indicative of mild cognitive impairment. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/20/2011, at p. 62. • Dr. Baum described the Veteran’s hypertension as well controlled in January 2010, July 2010, September 2010, January 2011, and July 2011. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/20/2011, at pp. 7, 35, 40, 45, 53. • There are multiple medical records that show blood pressure readings (at least 46 readings) that cover the period from 1997 to 2016. The Board is not listing the individual blood pressure readings; however, the Board notes that the diastolic readings range from the 50s to the 80s, not going above 86 (on one occasion), with the majority of the readings being in the 60s and 70s. The systolic readings range from the 90s to 150 with the highest reading being 150 with the majority of the readings falling between 120 and 130. • The Veteran was legally blind and saw an eye doctor. The records from Eye Health Services show that the Veteran’s psychiatric state was described as having “no emotional disturbances” in July 2012 (two times) and August 2012. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” with “#2” in the Subject line, receipt date 01/18/2013, at pp. 4, 8, 14. • VA treatment records show that in June 2013, July 2013, and January 2014, VA medical professionals found that the Veteran had good blood pressure control. See VBMS entry with document type, “CAPRI,” receipt date 04/10/2019, with “#1” in the Subject line, at pp. 62, 156, 200. • VA treatment records show that in November 2014 and May 2015, VA medical professionals found that the Veteran had good blood pressure control. See VBMS entry with document type, “CAPRI,” receipt date 04/10/2019, with “#2” in the Subject line, at pp. 153, 188. • In June 2013, July 2013, and January 2014, the psychiatric part of the physical examination revealed normal judgment and insight, oriented to person, place, and time, and normal mood and affect. See VBMS entry with document type, “CAPRI,” receipt date 04/10/2019, with “#1” in the Subject line, at pp. 62, 155, 199. • In November 2014, the psychiatric part of the physical examination revealed normal judgment and insight, oriented to person, place, and time, and normal mood and affect. See VBMS entry with document type, “CAPRI,” receipt date 04/10/2019, with “#2” in the Subject line, at pp. 188. • There are two VA examinations for PTSD that were conducted in April 2014 and December 2014 that describe the Veteran’s symptoms. See VBMS entries with document type, “VA Examination,” receipt dates 04/14/2014 & 12/04/2014. • A May 2015 private hospitalization report shows that the Veteran was hospitalized primarily for atrial fibrillation. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 09/04/2019, at. pp. 5-9. • An October 2016 private medical record shows that the Veteran was seen by a cardiologist, who described the Veteran’s past medical history as including coronary artery disease, “PFO,” atrial fibrillation, peripheral vascular disease, recurrent deep vein thrombosis, diabetes since 1978, transient ischemic attack and described the Veteran as “very pleasant.” See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 09/04/2019, at pp. 10-15. • Of record is a September 2019 medical opinion by Dr. M.B., where she concludes that it is as likely as not that the Veteran’s PTSD contributed materially and substantially to the development of and permanent aggravation of his hypertension and various heart conditions, which were the cause of the Veteran’s death. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 09/04/2019, at pp. 1-2. • In this letter, Dr. M.B. wrote that the records indicated that the Veteran smoked for several years but stopped smoking in the late 1970s or early 1980s. She added that the appellant clarified that the Veteran was a “social smoker” only and had an occasional cigarette out with friends and that the appellant estimated that the Veteran stopped smoking in 1976. The Board finds that these are inaccurate statements. For example, in a March 2010 private medical record, the examiner wrote, “Patient is a former smoker stopped 19 yrs ago.” This would show that the Veteran stopped smoking in 1991, and the Board finds as fact that this is the correct date of when the Veteran stopped smoking and not 1976. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/20/2011, at p. 47. • This March 2010 medical record described above is consistent with a July 2006 medical record, which shows the Veteran reported he quit smoking 15 years ago, which would also place the stoppage in 1991. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/19/2011, at p. 39. It is also consistent with the October 2016 medical record from the cardiologist, who documented that the Veteran was a former smoker. • Additionally, for accuracy purposes, Dr. M.B. wrote that the Veteran had been diagnosed with type 2 diabetes mellitus. However, the medical records show that he had type 1 diabetes mellitus. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 07/19/2011, at pp. 18, 20, 23, 26, 28, 30, 32, 34, 36. • Dr. M.B. has proffered three articles to support her opinion that PTSD contributed materially and substantially to the development of and permanent aggravation of the Veteran’s hypertension and various heart conditions, which caused his death: 1) Are Symptoms of Anxiety and Depression Risk Factors for Hypertension; 2) Anxiety and Heart Disease; and 3) Depression and Cardiovascular Disease: A Call for Recognition. See VBMS entry with document type entitled “Correspondence,” receipt date 09/04/2019. While the Board has provided some of the relevant facts above, the examiner is asked to review the entire record and then answer the following questions: a) Was the Veteran’s cause of death (coronary artery disease) at least as likely as not (50 percent or greater likelihood) caused by the Veteran’s PTSD? Upon what facts and medical principles do you base this opinion? Please specifically address the medical opinion from Dr. M.B. and the articles, 1) Are Symptoms of Anxiety and Depression Risk Factors for Hypertension; 2) Anxiety and Heart Disease; and 3) Depression and Cardiovascular Disease: A Call for Recognition referenced by Dr. M.B. See VBMS entry with document type entitled “Correspondence,” receipt date 09/04/2019. b) If the answer to a) is negative, was the Veteran’s coronary artery disease that caused his death at least as likely as not (50 percent or greater likelihood) aggravated by the Veteran’s PTSD? Upon what facts and medical principles do you base this opinion? Please specifically address the medical opinion from Dr. M.B. and the articles, 1) Are Symptoms of Anxiety and Depression Risk Factors for Hypertension; 2) Anxiety and Heart Disease; and 3) Depression and Cardiovascular Disease: A Call for Recognition referenced by Dr. M.B. (Locations above). c) If the examiner finds that the Veteran’s PTSD aggravated the Veteran’s coronary artery disease, please state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the level of disability at the time of death that shows a baseline for coronary artery disease prior to aggravation. If the examiner is unable to establish a baseline for coronary artery disease prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. Please explain each of your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.