Citation Nr: 21076115 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-33 753 DATE: December 22, 2021 ORDER The appeal as to the timeliness of the substantive appeal received following the July 2017 statement of the case (SOC) is granted. Dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. REMANDED The issue of entitlement to service connection for the cause of the Veteran's death is remanded. The issue of entitlement to DIC benefits under 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. An SOC denying entitlement to DIC benefits was issued on July 29, 2017. 2. On September 8, 2017, the appellant requested a 60-day extension to file her substantive appeal. 3. On September 22, 2017, the appellant's representative attempted to send the appellant's substantive appeal to VA via facsimile (fax); however, the fax was not received by VA. 4. On October 6, 2017, after the expiration of the time period within which to file a timely substantive appeal, VA advised the appellant that her request for an extension was denied. 5. At the time of the Veteran's death, he was not in receipt of or entitled to receive compensation for service-connected disability rated totally disabling for a period of 10 or more years immediately preceding death, or for a period of five or more years from the date of his discharge from active duty, nor was he a former prisoner of war. CONCLUSIONS OF LAW 1. The criteria for accepting the appellant's substantive appeal to the July 2017 SOC as having been timely filed have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200. 20.201, 20.302, 20.303 (2018). 2. The criteria for establishing entitlement to DIC benefits 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 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to July 1993 and from June 2001 to September 2003. The Veteran passed away in May 2015, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision and a November 2017 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Timeliness of the substantive appeal received following a July 2017 SOC In June 2015, the appellant filed claims for DIC benefits, were denied in a March 2016 rating decision. At the time of the March 2016 rating decision, an appeal consisted of a timely filed NOD on the form prescribed by the Secretary, and after the SOC has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 20.200. 20.201. To be considered timely, a substantive appeal must be submitted within 60 days from the date VA mails the SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.302(b). The time period may be extended for a reasonable period on request for good cause shown. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.303. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. The 60-day period for filing a substantive appeal is not a jurisdictional bar to the Board's adjudication of a matter and may be waived by VA. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). For instance, the Court has held that when VA treated a matter as if it were part of a timely filed substantive appeal for more than five years, VA waived any objections it might have had to the timeliness of filing. See Id. at 46. Similarly, the Court has held that when the Board proceeded to review claims, despite no substantive appeal having been filed, VA waived the requirement of filing a substantive appeal for those claims. See Beryle v. Brown, 9 Vet. App. 24, 28 (1996). Upon review of the record, the Board finds that the appellant's substantive appeal to the July 2017 SOC is accepted as having been timely filed. 2. In April 2016, the appellant filed a notice of disagreement (NOD) to the March 2016 rating decision, and an SOC was mailed to the appellant and her representative on July 29, 2017. Thus, the appellant had until September 27, 2017, to file a timely substantive appeal. On September 8, 2017, the appellant requested a 60-day extension to file her substantive appeal. On September 22, 2017, the appellant signed a substantive appeal (VA Form 9), and her representative attempted to faxed it to VA on that day. In support of this, the appellant submitted a fax transmission verification report, which shows that the form was fax on September 22, 2017. However, that report indicates that the result was "NG: poor line condition." On October 6, 2017, after the expiration of the time period within which to file a timely substantive appeal, VA advised the Veteran that her request for an extension was denied. On November 3, 2017, VA received a copy of the Veteran's substantive appeal in the mail, which was dated September 22, 2017. The Veteran also enclosed a written statement in which she indicated that her substantive appeal was previously sent by her representative on September 22, 2017. In a July 2018 written statement, the appellant's representative indicated that he did not realize that the Veteran's substantive appeal was not successfully sent when he attempted to faxed it on September 22, 2017. He urged VA to accept the appellant's substantive appeal as timely, as the incomplete fax transmission was through no fault of the appellant. The Board notes that while the September 2017 fax transmission verification report indicated that the result was "NG: poor line condition," it did not clearly indicate that the transmission failed. Based on the foregoing, the Board finds that the appellant's substantive appeal is accepted as having been timely filed. Accordingly, the appeal as to the timeliness of the substantive appeal received following the July 2017 SOC denying entitlement to DIC benefits is granted. The merits of the appellant's claims are addressed below. 3. Entitlement to DIC benefits under 38 U.S.C. § 1318 DIC benefits are payable under 38 U.S.C. § 1318 to the surviving spouse of a veteran if the veteran's death was not the result of his own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated total disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war 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; 38 C.F.R. § 3.22. For purposes of 38 U.S.C. § 1318, "entitled to receive" means that a veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) for the relevant period specified; or (3) at the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified, but was not receiving compensation because: (a) VA was paying the compensation to the veteran's dependents; (b) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (c) the veteran had not waived retired or retirement pay in order to receive compensation; (d) VA was withholding payments under the provisions of 10 U.S.C. § 1174 (h)(2); (e) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (f) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b). Additionally, "rated by VA as totally disabling" includes disability ratings based on unemployability pursuant to 38 C.F.R. § 4.16. 38 C.F.R. § 3.22(c). At the time of the Veteran's death, his compensable service-connected disabilities included posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling from May 7, 2010; obstructive sleep apnea with asthma, rated as 50 percent disabling from September 26, 2004; residuals of a left shoulder injury, rated as 20 percent disabling from November 26, 2008; right shoulder distal clavicle defect, rated as 20 percent disabling from September 25, 2009; residual fracture of left malleolus with tibial tendonitis, rated as 10 percent disabling from September 26, 2004; bilateral plantar fasciitis with pes planus and degenerative arthritis and bunions, rated as 10 percent disabling from September 26, 2004; asthma, rated as 10 percent disabling from September 26, 2004, to November 26, 2008; gastroesophageal reflux disease (GERD), rated as 10 percent disabling from September 26, 2004; hypertension, rated as 10 percent disabling from November 26, 2008; and cholecystectomy with scar, rated as 10 percent disabling from November 26, 2008. He was in receipt of a combined 100 percent rating from May 7, 2010. Thus, the Veteran did not meet the statutory ten-year duration requirement for a 100 percent rating at the time of his death in May 2015. Additionally, he was not in receipt of a total disability rating continuously since his discharge from active duty, nor was he a former prisoner of war. Furthermore, the record does not show, and the appellant has not asserted, that the Veteran was "entitled to receive" a total disability rating for ten years prior to his death, or continuously since his discharge from active duty and for at least five years immediately preceding death, within the meaning of 38 U.S.C. § 1318. Thus, the criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met, and that claim is denied. REASONS FOR REMAND 2. Entitlement to service connection for the cause of the Veteran's death is remanded. DIC benefits are payable under 38 U.S.C. § 1310 to the surviving spouse of a veteran who dies from a service-connected or compensable disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. A May 2015 police report shows that on the morning of the Veteran's death, he was found unresponsive on the floor of his home. The officer who responded to the scene observed a continuous positive airway pressure (CPAP) machine inside the Veteran's room, and the appellant told the officer that the Veteran had been under the care of a VA physician for diabetes, heart trouble, and a shoulder injury. The Veteran's death certificate lists the immediate cause of death as complications of diabetes mellitus. However, no autopsy or toxicology screen was performed. The appellant has indicated that during the years preceding the Veteran's death, he received treatment at the VA medical centers (VAMC) in Atlanta, Southern Arizona, and Salt Lake City, and she has requested that VA obtain those treatment records, as they may provide more information regarding the precise cause of the Veteran's death. While some treatment records have been obtained from those facilities, they do not appear to be complete. As those records may be relevant to the appellant's claim for service connection for the cause of the Veteran's death, the claim is remanded in order to obtain the Veteran's complete VA treatment records. The appellant asserts, among other things, that the Veteran's death may have been caused by his service-connected sleep apnea. In support of this, she submitted articles regarding the risk of sudden cardiac death among patients with sleep apnea. The articles indicate that sudden cardiac death occurs when the heart unexpectedly stops functioning completely. The appellant also highlighted the fact that the Veteran was hospitalized for chest pain a month before his death, at which time his EKG results were abnormal. Treatment records from that April 2015 hospitalization show that an EKG revealed sinus tachycardia and right bundle branch block. In July 2017, a VA examiner reviewed the evidence of record and opined that it was less likely than not that a disability incurred in or aggravated by active service was the principal or contributory cause of the Veteran's death. With respect to the Veteran's sleep apnea, the examiner explained, in relevant part, that "there was no indication on cardiac catherization the month prior to [the] Veteran's death of cardiac disease stemming from his service-connected sleep apnea." As it is not clear whether the examiner's opinion considered the April 2015 EKG results or the possibility of sudden cardiac death related to sleep apnea, the Board finds that a supplemental opinion should be obtained which addresses the appellant's specific contentions. 3. Entitlement to DIC benefits under 38 U.S.C. § 1151 is remanded. Compensation is payable for additional disability as if it were service-connected if the additional disability is not the result of a veteran's own willful misconduct and was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. During the week preceding the Veteran's death, he was treated at the Milwaukee VAMC on May 2, 2015; May 4, 2015; and May 6, 2015, for complaints of severe left shoulder/arm pain, numbness, and tingling. The assessments included left rotator cuff strain versus tear, chronic left shoulder pain, and hypertension. The Veteran was prescribed pain medication and advised to follow up with orthopedics. The appellant asserts that, given the Veteran's medical history, including a reported history of heart problems, high triglycerides, hypertension, diabetes, and a recent hospitalization for chest pain with an abnormal EKG, the VA treatment providers who evaluated the Veteran in May 2015 should have ordered additional testing to determine whether the Veteran's symptoms were caused by something more serious, such as a heart condition. In March 2016, a VA examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's death was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during the treatment he received at the Milwaukee VAMC in May 2015. The examiner noted that cardiac catheterization performed in April 2015 revealed no evidence of coronary artery disease or the presence of a stent placement that the Veteran had reported being placed in 2011. However, the clinician did not actually address the appellant's contention that, given the Veteran's medical history, additional testing should have been ordered to determine whether there was a non-orthopedic cause for the Veteran's symptoms. Accordingly, the claim is remanded in order to obtain a supplemental opinion which addresses the appellant's specific contentions. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all records of treatment records from the VA Medical Centers in Atlanta, Southern Arizona, and Salt Lake City. If any requested records are unavailable, the appellant should be notified of such. 2. After records development has been completed and available records have been associated with the claims file, provide the claims file to an appropriate VA examiner to obtain a supplemental opinion with respect to the appellant's claim for service connection for the cause of the Veteran's death and DIC benefits under 38 U.S.C. § 1151. After review of the claims file, the examiner should answer the following: 3. Is it at least as likely as not (50 percent probability or greater) that the Veteran's obstructive sleep apnea was a principal or contributory cause of death? Please explain why or why not. The clinician's opinion should reflect consideration of the following evidence: Articles submitted by the appellant regarding the risk of sudden cardiac death in patients with sleep apnea (VBMS - Correspondence, received 4/10/17), and April 2015 EKG results showing sinus tachycardia and right bundle branch block the month before the Veteran's death (VBMS - Medical Treatment Record Non-Government Facility, received 12/22/15). 4. Is it at least as likely as not (50 percent probability or greater) that, given the Veteran's medical history, the failure to order additional testing to determine whether there was a non-orthopedic cause for the Veteran's symptoms on May 2, 2015; May 4, 2015, and/or May 6, 2015, constituted carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA treatment providers? Please explain why or why not. 5. If the clinician finds that the failure to order additional testing on May 2, 2015; May 4, 2015, and/or May 6, 2015, constituted carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, is it at least as likely as not (50 percent probability or greater) that such failure resulted in additional disability that was a principal or contributory cause of the Veteran's death? Please explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.