judge_norm: DEREK R BROWN

benefit: dic

text: Entitlement to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1318 is denied.

text:
Citation Nr: 0913000
Decision Date: 04/08/09    Archive Date: 04/15/09

DOCKET NO.  05-09 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUES

1.  Entitlement to service connection for the cause of the
Veteran's death.

2.  Entitlement to dependency and indemnity compensation
(DIC) benefits under 38 U.S.C.A. � 1318.

REPRESENTATION

Appellant represented by:	The American Legion

INTRODUCTION

The Veteran served on active duty from February 1943 to
November 1945, to include combat service with the 508th
Parachute Infantry, 82nd Airborne Division in a parachute
landing behind enemy lines in Normandy, France, on June 6,
1944 ("D-Day").  He died in September 2003.  The appellant
is the Veteran's widow.

This case comes from an April 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.

FINDINGS OF FACT

1.  The Veteran died in September 2003 due to a stroke due to
or as a consequence of arteriosclerotic cardiovascular
disease.  Alzheimer's disease was listed as a disorder
contributing to death but not related to the cause of death.
An autopsy was not conducted.

2.  During the Veteran's lifetime he was service connected
for post operative residuals of a gastrectomy with an anxiety
reaction, evaluated as 60 percent disabling; and for
residuals of a moderate, left Muscle Group XVII wound,
evaluated as 40 percent disabling.  The combined evaluation
was 80 percent.

3.  Arteriosclerotic cardiovascular disease was not
demonstrated in-service, it was not demonstrated until
decades postservice, and there is no competent evidence
linking this disorder to service.

4.  A service connected disability did not contribute
substantially or materially to the Veteran's death or aid or
lend assistance to the production of death.

CONCLUSIONS OF LAW

1.  A disability incurred in or aggravated by service did not
cause or contribute to the Veteran's death. 38 U.S.C.A. ��
1101, 1110, 1112, 1116, 1310, 5103, 5103A, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307, 3.309,
3.312 (2008).

2.  The criteria for dependency and indemnity compensation
under 38 U.S.C.A. � 1318 are not met.  38 U.S.C.A. �� 1318,
5103, 5103A, 5107(b) (West 2002 & Supp. 2008); 38 C.F.R. ��
3.22, 3.102, 3.159 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. � 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete.  Second, under 38 U.S.C.A. � 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., evidence
of veteran status; evidence of a nexus between service and
death; and the effective date of any death benefits.  The
appellant must also be notified what specific evidence she is
to provide, and what evidence VA will attempt to obtain.

VA thirdly has a duty to assist claimants in obtaining
evidence needed to substantiate a claim. This includes
obtaining all relevant evidence adequately identified in the
record, and if necessary, securing a VA medical opinion. 38
U.S.C.A. � 5103A.  In this regard, the Board acknowledges
that this case has not been forwarded to secure a medical
opinion addressing whether there is a relationship between
the cause of the Veteran's death and his military service.
Significantly, however, in the absence of any medical
evidence suggestive of a stroke in-service, or
arteriosclerotic cardiovascular disease until more than 40
years postservice, and in the absence of any medical evidence
linking either arteriosclerotic cardiovascular disease or a
stroke to either service or a service connected disorder,
referral of this case for a VA opinion as to whether
arteriosclerotic cardiovascular disease originated in-
service, whether the disorder was caused or aggravated by a
service connected disorder, or whether the disorder was
compensably disabling within one year thereof would in
essence place the reviewing physician in the role of a fact
finder.  Fact finding is the Board's responsibility.

In light of the foregoing, any medical opinion which links
the Veteran's arteriosclerotic cardiovascular disease or
stroke residuals to his period of service would necessarily
be based solely on any uncorroborated assertions by the
appellant regarding the Veteran's medical history.  The Court
has held on a number of occasions that a medical opinion
premised upon an unsubstantiated account has no probative
value.  See Reonal v. Brown, 5 Vet. App. 458, 460 (1993);
Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v.
Brown, 5 Vet. App. 229, 233 (1993).  In short, there is no
suggestion, except by unsubstantiated allegation, that the
Veteran's arteriosclerotic cardiovascular disease and/or
stroke residuals were associated with an established event,
injury or disease in service.  38 C.F.R. � 3.159(c)(4).  See
Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).

There is no issue as to providing an appropriate application
form or completeness of the application.  Written notice
provided in November 2003 correspondence fulfills the
provisions of 38 U.S.C.A. � 5103(a).  VA has secured all
available pertinent evidence and conducted all appropriate
development.  The service treatment records are available as
well as postservice 6
treatment records and there is no pertinent evidence which is
not currently part of the claims file.  Hence, VA has
fulfilled its duty to assist the appellant in the prosecution
of her claim.

Finally, the appellant was provided appropriate notice under
38 U.S.C.A. � 5103(a), to include an explanation of the
evidence necessary to substantiate a claim based on a
disorder that has yet to be service connected.  Hupp v.
Nicholson, 21 Vet. App. 342 (2007).

Background

The Veteran died in September 2003 due to a stroke due to or
as a consequence of arteriosclerotic cardiovascular disease.
Alzheimer's disease was listed as a disorder contributing to
death but not related to the cause of death.  An autopsy was
not conducted.

During the Veteran's lifetime he was service connected for
post operative residuals of a gastrectomy with an anxiety
reaction, evaluated as 60 percent disabling; and for
residuals of a moderate, left Muscle Group XVII wound,
evaluated as 40 percent disabling.  The combined evaluation
was 80 percent.

The appellant contends that stress associated with the
Veteran's service connected anxiety contributed to the
development of arteriosclerotic cardiovascular disease, and
ultimately a stroke and then death.

Service medical records show no treatment for either a stroke
or arteriosclerotic cardiovascular disease.

At his first postservice VA examination in April 1947,
neither arteriosclerotic cardiovascular disease, nor evidence
of a stroke were shown.

In August 1986, more than 40 years following his discharge
from active duty, the Veteran was diagnosed with
hypertension.

In August 2003, the Veteran was admitted to Baptist Medical
Center for treatment of a stroke, secondary to a cerebral
infarction or hemorrhage.  His medical history was
significant for Alzheimer's since 1973, a pacemaker implant,
and multiple prior cerebrovascular accidents with seizure
disorders.  In September 2003, the Veteran passed away.

There are no medical opinions or records which link either
stroke residuals, or arteriosclerotic cardiovascular disease
to service, or to a service connected disorder to include
anxiety.

Criteria

In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disease or
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
38 U.S.C.A. � 1310; 38 C.F.R. � 3.312(a).

In determining whether a 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.
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(c)(1).

Service connection may also be granted for certain chronic
diseases, such as hypertension and cardiovascular disease,
when such disease is manifested to a compensable degree
within one year of separation from active duty.  38 C.F.R.
�� 3.307, 3.309.

It is the responsibility of the Board to weigh the evidence,
including the medical evidence, and determine where to give
credit and where to withhold the same. Evans v. West, 12 Vet.
App. 22, 30 (1998).  In so doing, the Board may accept one
medical opinion and reject others.  Id.  At the same time,
the Board cannot make its own independent medical
determinations, and it must have plausible reasons, based
upon medical evidence in the record, for favoring one medical
opinion over another.  Rucker v. Brown, 10 Vet. App. 67, 74
(1997).  Thus, the Board must determine the weight to be
accorded the various items of evidence in this case based on
the quality of the evidence and not necessarily on its
quantity or source.

Analysis

At the time of his death the Veteran was service connected
for post operative residuals of a gastrectomy with an anxiety
reaction, evaluated as 60 percent disabling; and for
residuals of a moderate, left Muscle Group XVII wound,
evaluated as 40 percent disabling.  His service treatment
records reveal no evidence of either arteriosclerotic
cardiovascular disease, hypertension, or residuals of a
stroke.  The postservice records reveal no complaints or
pertinent findings pertaining to a pertinent illness,
hypertension, until 1986, i.e., more than 40 years following
the Veteran's separation from active duty.  There is no
competent evidence linking either stroke residuals, or
arteriosclerotic cardiovascular disease to service or to a
service connected disorder, to include anxiety.  Without
competent evidence linking the cause of death to service, or
to a service connected disorder, there is no basis to grant
service connection for the cause of death.  Hence, the
benefit sought on appeal is denied.

In reaching this decision, the Board considered the
appellant's sincerely held belief that the Veteran's anxiety
caused or aggravated hypertension, and in turn
arteriosclerotic cardiovascular disease, and in turn his
fatal stroke.  The appellant, however, is not shown to have
either the medical or scientific training which would render
her competent to offer such an opinion.  Hence, her opinion
as to the etiology of the cause of the Veteran's death has no
probative value.  Espiritu v. Derwinski, 2 Vet. App. 492
(1992).

Finally, the Board considered the doctrine of reasonable
doubt, however, as the preponderance of the evidence is
against the appellant's claim, the doctrine is not for
application.  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

Dependency and indemnity compensation benefits under Section
1318

Under 38 U.S.C.A. � 1318, a surviving spouse may be entitled
to dependency and indemnity compensation in the same manner
as if the veteran's death were service- connected, under
certain specific conditions.  VA shall pay dependency and
indemnity compensation under 38 U.S.C.A. � 1318 to the
surviving spouse of a veteran who dies not as the result of
his own willful misconduct, and who at the time of death was
in receipt of or "entitled to receive" compensation for a
service-connected disability rated totally disabling
provided, in pertinent part, that the disability was
continuously rated totally disabling for a period of at least
10 consecutive years immediately preceding death.  The total
rating may be either schedular or based upon unemployability.
38 U.S.C.A. � 1318(b); 38 C.F.R. � 3.22.

In this instance, the Veteran was in receipt of service-
connected disability compensation for post operative
residuals of a gastrectomy with an anxiety reaction,
evaluated as 60 percent disabling; and for residuals of a
moderate, left Muscle Group XVII wound, evaluated as 40
percent disabling.  The combined evaluation was 80 percent.
A total disability rating was never assigned during the
Veteran's lifetime on either a combined schedular basis or on
the basis of entitlement to a total disability evaluation
based on individual unemployability due to service connected
disorders.  Hence, the criteria that a total disability
rating have been in existence for at least 10 consecutive
years preceding death were not met.

The appellant has not alleged any other applicable theory of
entitlement to benefits under U.S.C.A. � 1318 to include a
theory of clear and unmistakable error in a prior final
rating decision, reopening of a claim based on newly received
service records, or absence of receipt of total disability
benefits due to non-waiver of concurrent retirement payments.
See 38 C.F.R. � 3.22.

Accordingly, entitlement to dependency and indemnity
compensation  under 38 U.S.C.A. � 1318 is denied as a matter
of law.

ORDER

Entitlement to service connection for the cause of the
Veteran's death is denied.

Entitlement to dependency and indemnity compensation benefits
under 38 U.S.C.A. � 1318 is denied.

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: GEORGE E GUIDO, JR

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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.A. §§ 5109B, 7112 (West Supp. 2008).

text:
Citation Nr: 0914000
Decision Date: 04/15/09    Archive Date: 04/24/09

DOCKET NO.  06-36 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho

THE ISSUES

1. Entitlement to a rating higher than 40 percent for
residuals of vagotomy and pylorplasty for duodenal ulcer
disease.

2. Entitlement to a rating higher than 50 percent for post-
traumatic stress disorder.

3. Entitlement to a total disability rating based upon
individual unemployability.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

H. E. Costas, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from
February 1963 to November 1972.

This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision in October 2005 of a
Department of Veterans Affairs (VA) Regional Office (RO).

The appeal is REMANDED to the RO via the Appeals Management
Center in Washington, DC.

REMAND

Since the Veteran was last examined by VA in September 2005,
service-connection for tinnitus and hearing loss has been
granted.  Also it is argued that the Veteran's service-
connected disabilities of duodenal ulcer disease and
post-traumatic stress disorder have worsened.

After a review of the record, the Board determines that there
is a need to verify the current severity of the service-
connected duodenal ulcer disease and post-traumatic stress
disorder, and reexaminations under 38 C.F.R. � 3.327(a) are
necessary.

Accordingly, the case is REMANDED for the following action:

1. Obtain records from the Boise, Idaho
VAMC since May 2007.

2. Afford the Veteran a VA examination
to determine the current level of
impairment due to the service-connected
duodenal ulcer disease.

The examiner is asked to comment on
whether there is evidence of hypoglemic
symptoms and weight loss with
malnutrition and anemia.  The claims
folder should be made available to the
examiner for review.

3. Afford the Veteran a VA psychiatric
examination to determine the current
level of occupational and social
impairment due to the service-connected
post-traumatic stress disorder.  The
examiner is asked to express an opinion
on whether the Veteran is unemployable
due to service-connected post-traumatic
stress disorder.   The claims folder
should be made available to the
examiner for review.

4. After the above development is
completed, adjudicate the claims.  If
any benefit sought remains denied,
furnish the Veteran and his
representative a supplemental statement
of the case and return the case to the
Board.

The Veteran 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 of
Veterans' Appeals 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.A. �� 5109B, 7112 (West Supp. 2008).

_________________________________________________
George E. Guido, Jr.
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2008).


judge_norm: MARK F HALSEY

disposition: denied

condition: ptsd

condition: diabetes

condition: radiculopathy

text:
Citation Nr: 0915000
Decision Date: 04/22/09    Archive Date: 04/29/09

DOCKET NO.  06-34 210A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to service connection for posttraumatic
stress disorder (PTSD).

2.  Entitlement to service connection for eye disability
causing vision loss as secondary to service-connected
diabetes mellitus.

3.  Entitlement to service connection for peripheral
neuropathy as secondary to service-connected diabetes
mellitus.

4.  Entitlement to service connection for erectile
dysfunction as secondary to service-connected diabetes
mellitus.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of
the United States

ATTORNEY FOR THE BOARD

C. Fleming, Associate Counsel

INTRODUCTION

The Veteran had active military service from June 1966 to
March 1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.  In that decision, the RO denied the
Veteran's claim for service connection for posttraumatic
stress disorder.  The RO also denied the Veteran's claims of
service connection for vision loss, peripheral neuropathy,
and erectile dysfunction, each claimed as secondary to
service-connected diabetes mellitus.

FINDINGS OF FACT

1.  The Veteran does not have posttraumatic stress disorder
that is related to his military service.

2.  The Veteran does not have vision loss due to an eye
disability that has been caused or made worse by service-
connected diabetes mellitus.

3.  The Veteran does not have a current diagnosis of
peripheral neuropathy.

4.  The Veteran does not have erectile dysfunction that has
been caused or made worse by service-connected diabetes
mellitus.

CONCLUSIONS OF LAW

1.  The Veteran does not have posttraumatic stress disorder
that is the result of disease or injury incurred in or
aggravated during active military service.  38 U.S.C.A.
�� 1110, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.159, 3.303,
3.304(f) (2008).

2.  The Veteran does not have vision loss due to an eye
disability that is proximately due to or the result of
service-connected disability.  38 U.S.C.A. �� 1101, 1110,
1112, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.304, 3.307,
3.309 (2008); 38 C.F.R. � 3.310 (2006).

3.  The Veteran does not have peripheral neuropathy that is
proximately due to or the result of service-connected
disability.  38 U.S.C.A. �� 1101, 1110, 1112, 5107 (West
2002); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309 (2008);
38 C.F.R. � 3.310 (2006).

4.  The Veteran does not have erectile dysfunction that is
proximately due to or the result of service-connected
disability.  38 U.S.C.A. �� 1101, 1110, 1112, 5107 (West
2002); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309 (2008);
38 C.F.R. � 3.310 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. ��
5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2008).
To implement the provisions of the law, VA promulgated
regulations codified at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
3.326(a) (2008).  The VCAA and its implementing regulations
include, upon the submission of a substantially complete
application for benefits, an enhanced duty on the part of VA
to notify a claimant of the information and evidence needed
to substantiate a claim, as well as the duty to notify the
claimant of what evidence will be obtained by whom.  38
U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  In addition, they
define the obligation of VA with respect to its duty to
assist a claimant in obtaining evidence.  38 U.S.C.A. �
5103A; 38 C.F.R. � 3.159(c).

In this case, the Board finds that all notification and
development action needed to render a decision has been
accomplished.

In this respect, through a June 2005 notice letter, the
Veteran received notice of the information and evidence
needed to substantiate his claims.  Thereafter, the Veteran
was afforded the opportunity to respond.  Hence, the Board
finds that the Veteran has been afforded ample opportunity to
submit information and/or evidence needed to substantiate his
claims.

The Board also finds that the June 2005 notice letter
satisfies the statutory and regulatory requirement that VA
notify a claimant what evidence, if any, will be obtained by
the claimant and which evidence, if any, will be retrieved by
VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002)
(addressing the duties imposed by 38 U.S.C. � 5103(a) and 38
C.F.R. � 3.159(b)).  In the letter, the RO also notified the
Veteran that VA was required to make reasonable efforts to
obtain medical records, employment records, or records from
other Federal agencies.  The RO also requested that the
Veteran identify any medical providers from whom he wanted
the RO to obtain and consider evidence.

Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide.  See
Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  See
also Notice and Assistance Requirements and Technical
Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be
codified at 38 C.F.R. � 3.159) (removing the prior
requirement that VA specifically ask the claimant to provide
any pertinent evidence in his possession).  These
requirements were met by the aforementioned June 2005 letter.

The Board further notes that although notice regarding an
award of an effective date or rating criteria was not
provided to the Veteran, see Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d
1311 (Fed. Cir. 2007), the Board does not now have such
issues before it.  Consequently, a remand for additional
notification on these questions is not necessary.  "[T]he
appellant [was] provided the content-complying notice to
which he [was] entitled" on the questions now before the
Board.  Pelegrini, 18 Vet. App. at 122.  Nothing about the
evidence or any response to the RO's notification suggests
that the case must be re-adjudicated ab initio to satisfy the
requirements of the VCAA.

The Board also points out that there is no indication that
any additional action is needed to comply with the duty to
assist in connection with the claims on appeal.  Here, the
Veteran's service treatment records have been associated with
the claims file, as have records of his post-service
treatment at the Erie VA Medical Center (VAMC).  Reports of
private post-service medical treatment have also been
associated with the claims file.  The Veteran was provided VA
medical examinations in September 2005 and October 2005;
reports of these examinations have been associated with the
claims file.  Additionally, the Veteran and his
representative have both submitted written argument.  Neither
the Veteran nor his representative has alleged that there are
any outstanding records probative of the claims on appeal
that need to be obtained.

Under these circumstances, the Board finds that VA has
complied with all duties to notify and assist required under
38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159.

II.  Analysis

The Veteran is seeking service connection for posttraumatic
stress disorder (PTSD).  The Veteran is also seeking service
connection for eye disability that causes vision loss,
peripheral neuropathy, and erectile dysfunction as secondary
to service-connected diabetes mellitus.  The Board notes at
the outset that the Veteran's claims for service connection
for eye disability, peripheral neuropathy, and erectile
dysfunction have been appealed only with respect to whether
those disabilities are proximately due to, or the result of,
his service-connected diabetes mellitus.  As such, the Board
will consider only that theory of entitlement as to those
claims.

Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or for aggravation of a pre-existing
injury suffered or disease contracted in the line of duty.
See 38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Generally,
service connection requires:  (1) medical evidence of a
current disability; (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease; and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury.  See Caluza v. Brown, 7 Vet. App. 498
(1995).

Service connection for posttraumatic stress disorder (PTSD)
requires:  (1) a medical diagnosis of PTSD utilizing the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV) criteria, in accordance
with 38 C.F.R. � 4.125(a); (2) credible supporting evidence
that the claimed in-service stressor actually occurred; and
(3) medical evidence of a causal nexus between current
symptomatology and the specific claimed in-service stressor.
See 38 C.F.R. � 3.304(f); Cohen v. Brown, 10 Vet. App. 128,
138 (1997).

Where it is determined that a veteran was engaged in combat
with the enemy and the claimed stressor is related to such
combat, the veteran's lay testimony regarding the claimed
stressor is accepted as conclusive as to its actual
existence, absent clear and convincing evidence to the
contrary.  See 38 U.S.C.A. � 1154(b) (West 2002); 38 C.F.R. �
3.304(f).  Where, however, VA determines that the veteran did
not engage in combat with the enemy, or that the veteran did
engage in combat with the enemy but the claimed stressor is
not related to such combat, the veteran's lay testimony, by
itself, will not be enough to establish the occurrence of the
alleged stressor.  Instead, the record must contain evidence
that corroborates the veteran's account as to the occurrence
of the claimed stressor.  See 38 U.S.C.A. � 1154(b);
38 C.F.R. � 3.304(d), (f) (2008); Cohen v. Brown, 10 Vet.
App. 128 (1997).  Where posttraumatic stress disorder has
been diagnosed in service, and the claimed stressor is
related to that service, the veteran's testimony alone may
establish the occurrence of the stressor, absent clear and
convincing evidence to the contrary, so long as the stressor
is consistent with the circumstances of the veteran's
service.  73 Fed. Reg. 64208 (Oct. 29, 2008).

Service connection may also be granted for a disability that
is proximately due to or the result of an established
service-connected disorder.  38 C.F.R. � 3.310.  This
includes a disability made chronically worse by service-
connected disability.  Allen v. Brown, 7 Vet. App. 439
(1995).

The Board notes that there has been an amendment to the
provisions of 38 C.F.R. � 3.310.  See 71 Fed. Reg. 52,744-47
(Sept. 7, 2006).  The amendment sets a standard by which a
claim based on aggravation of a non-service-connected
disability by a service-connected one is judged.  Although VA
has indicated that the purpose of the regulation was merely
to apply the Court's ruling in Allen v. Brown, 7 Vet. App.
439 (1995), it was made clear in the comments to the
regulation that the changes were intended to place a burden
on the claimant to establish a pre-aggravation baseline level
of disability for the non-service-connected disability before
an award of service connection based on aggravation may be
made.  This had not previously been VA's practice, which
strongly suggests that the change amounts to a substantive
change in the regulation.  Given what appear to be
substantive changes, and because the Veteran's claim was
pending before the regulatory change was made, the Board will
consider the version of 38 C.F.R. � 3.310 in effect before
the change, which version favors the claimant.

Relevant evidence of record consists of the Veteran's service
treatment records and records of his post-service treatment
at the Erie VAMC and with private treatment providers.  The
Veteran was also provided VA examinations in September 2005
and October 2005.  Review of the Veteran's service treatment
records reflects that they are silent as to complaints or
findings of eye disability, peripheral neuropathy, or
erectile dysfunction, although the Veteran did note at his
separation report of medical history, conducted in March
1968, that he suffered from "nervous trouble."

Review of the Veteran's private post-service treatment
records reflects that he complained of blurred vision in
March 1999.  No diagnosis was made at that time.  Records
from the Veteran's March 1999 treatment visit also indicate
that he was treated for erectile dysfunction at that time and
complained that he had been experiencing erectile dysfunction
for three to four years prior to the visit.  His treating
physician offered no opinion as to the etiology of the
disorder.

Post-service treatment records from the Veteran's ongoing
treatment at the Erie VAMC indicate that he was first treated
at that facility in January 2005.  The Veteran was seen in
February 2005 for mental health complaints and was assigned a
"working diagnosis" of PTSD at that time.  The Veteran's
treating therapist noted at the time that the Veteran "may
not meet all formal criteria for PTSD."  He was given a
diagnosis of PTSD in July 2005 by a VA treatment provider,
who also noted that the Veteran described having experienced
"frequent shelling" during his tour of duty in Vietnam, as
well as seeing other soldiers injured or killed, including
soldiers who had camped in a tent next to the Veteran's.  At
an optometry appointment in February 2005, the Veteran was
found to have best corrected vision of 20/20 bilaterally.
The examining optometrist's impression was normal ocular
health.  The Veteran further complained at a March 2005 visit
of having erectile dysfunction, which was not alleviated with
a vacuum device.  He was also given a podiatry consultation
in March 2005 pursuant to an abnormal monofilament test.  The
Veteran's examining podiatrist found at that time that the
Veteran had no varicosities or edema in his lower extremities
bilaterally.  His protective sensation and monofilament
testing were both found to be normal.  The podiatrist
diagnosed him with diabetes mellitus without pedal
neuropathy.

The Veteran was provided VA examinations in September and
October 2005.  The September 2005 report of examination
concerning the Veteran's claim for peripheral neuropathy
reflects that the examiner reviewed the Veteran's claims file
and conducted physical examination.  The examiner noted that
the Veteran complained of paresthesia in his feet
bilaterally, which he claimed began around the same time he
was diagnosed with diabetes mellitus.  The Veteran complained
of flare-ups of paresthesia in his feet lasting 10 to 15
minutes and occurring after extended periods of sitting or
walking.  The Veteran also complained of anesthesia over the
plantar aspects of his feet bilaterally after long sitting.
The examiner noted that the Veteran had normal hair
distribution on the feet, and that his feet were warm and dry
to the touch bilaterally.  Monofilament and vibratory
sensation were intact bilaterally, and the examiner found
further that the Veteran's deep tendon reflexes were normal
and equal bilaterally.  The examiner stated that the
Veteran's neurological examination for peripheral neuropathy
was normal and opined that the Veteran did not have
peripheral neuropathy and likely had never had such a
disability.

Review of the VA examination report of September 2005
relative to the Veteran's claim of erectile dysfunction
secondary to service-connected diabetes mellitus reflects
that the VA examiner reviewed the Veteran's claims file and
reported medical history.  The Veteran complained of having
first developed erectile dysfunction in approximately 1999
and having used oral medications and vacuum devices to treat
the disability, with no success.  The examiner noted that the
Veteran had not been treated with medication for his diabetes
mellitus until 2005, some 6 years after the onset of his
erectile dysfunction.  She opined that the Veteran's erectile
dysfunction was therefore unlikely secondary to his service-
connected diabetes mellitus.

The Veteran also underwent optometric examination in October
2005, at which time he complained of decreased uncorrected
visual acuity.  Report of that examination reflects that the
Veteran's best corrected visual acuity was 20/25 bilaterally.
He was noted to have normal retinas and to use corrective
lenses.  Physical examination revealed no diplopia or visual
field deficits.  The examining VA optometrist diagnosed the
Veteran with diabetes mellitus without retinopathy.

Upon consideration of the above evidence, the Board finds
that the preponderance of the evidence is against the
Veteran's claims for service connection PTSD and for eye
disability, peripheral neuropathy, and erectile dysfunction
as secondary to service-connected diabetes mellitus.  Here,
notwithstanding the Veteran's current diagnosis of PTSD and
erectile dysfunction, a review of the evidence does not
reflect competent medical evidence linking any PTSD to an in-
service stressor or linking the currently diagnosed erectile
dysfunction to the Veteran's service-connected diabetes
mellitus.  Further, the Board finds that the competent
medical evidence of record reflects that the Veteran is not
currently diagnosed with an eye disability due to diabetes or
peripheral neuropathy.  Hence, an essential requirement for
service connection is not met.

Regarding the Veteran's claim for direct service connection
for PTSD, the Board acknowledges that the Veteran carries a
current diagnosis of PTSD pursuant to the DSM- IV, in
accordance with 38 C.F.R. � 4.125(a).  However, the Board
finds that the preponderance of the evidence is that Veteran
does not have PTSD related to any in-service stressor; to the
contrary, the Veteran has failed to provide any information
about a specific in-service stressor related to his PTSD and
in fact stated in his November 2006 substantive appeal that
there was no specific in-service event that he believes
caused his PTSD.  The Board notes in particular that although
a July 2005 clinic note indicates that the Veteran complained
of having "memories" of Vietnam, no specific diagnosis was
assigned at that time, and the Veteran's July 2005 diagnosis
of PTSD by a VA treatment provider does not indicate that the
diagnosis is in any way related to the Veteran's time in
service.  Consequently, as the preponderance of the evidence
is against a finding that the Veteran has PTSD as a result of
a stressor from service, his claim must be denied.  38 C.F.R.
� 3.304(f).

The Board has considered the evidence favorable to the claim
but finds this evidence less persuasive than the other
medical evidence of record, which indicates that the Veteran
has not provided information about any claimed in-service
stressor related to his current diagnosis of PTSD.  The Board
again notes that the Veteran's July 2005 diagnosis by a VA
therapist offers no indication as to whether the PTSD for
which the Veteran was being treated was in any way related to
his military service.  The notes from the Veteran's July 2005
visit with his treating VA therapist give some indication of
the Veteran's experiences in Vietnam; however, the Board
finds that this is outweighed by the Veteran's November 2006
statement that there were no "specific" events that led to
his PTSD.  In sum, the Board finds that the diagnosis of PTSD
assigned to the Veteran by his treating VA therapist is not
based on an in-service stressor and thus does not meet the
requirements for service connection for PTSD set forth in 38
C.F.R. � 4.125.

Regarding the Veteran's claims for service connection for eye
disability causing vision loss, peripheral neuropathy, and
erectile dysfunction as secondary to service-connected
diabetes mellitus, as discussed above, the Board notes that
the September 2005 VA medical examinations clearly indicated
that it is less likely than not that the Veteran's erectile
dysfunction is caused by or related to his service-connected
diabetes mellitus, and that the Veteran does not currently
have a diagnosis of peripheral neuropathy.  The Board also
finds compelling the Veteran's October 2005 VA eye
examination, which found the Veteran to have no diabetes-
related retinopathy in either eye.  The September 2005 VA
medical examiner pointed out that the Veteran's diabetes
mellitus was first treated with medication in 2005, long
after the onset of the Veteran's erectile dysfunction, and
concluded that it was less likely than not that the Veteran's
erectile dysfunction was related to his service-connected
diabetes.  VA examiners also concluded, at a September 2005
examination that, based on physical examination, the Veteran
did not suffer from peripheral neuropathy and likely had not
had such a disability at any point since his diagnosis with
diabetes mellitus.

Because the question of whether a disability such as eye
disability causing vision loss, peripheral neuropathy, or
erectile dysfunction is related to another disorder such as
diabetes mellitus is a medical question requiring expertise,
the Board relies upon the September 2005 and October 2005 VA
examiners' opinions in making its determination.  The
examination reports reflect that the examiners solicited a
subjective history from the Veteran in addition to examining
his claims file.  Additionally, the September 2005 and
October 2005 VA examiners offered rationale for their
opinions that the Veteran's erectile dysfunction was less
likely than not related to his service-connected diabetes
mellitus and that he does not have diabetic retinopathy or
peripheral neuropathy, relying on the examinations and their
medical expertise in concluding that any connection between
the Veteran's claimed disabilities and his service-connected
diabetes mellitus was doubtful.  Thus, in arriving at a
decision as to whether the Veteran's claimed eye disability,
peripheral neuropathy, and erectile dysfunction are linked to
his service-connected diabetes mellitus, the Board finds
compelling the negative medical opinions provided by VA
examiners in September 2005.  Similarly, the Board finds
compelling the October 2005 VA eye examiner's diagnosis of
diabetes without retinopathy.

The Board has also considered the Veteran's own contentions
with regard to his claims for secondary service connection.
Although the Board does not doubt the sincerity of the
Veteran's belief that his disabilities are related to his
service-connected diabetes mellitus, as a lay person without
the appropriate medical training or expertise, he simply is
not competent to provide a probative opinion on a medical
matter, such as whether a current disability exists and the
medical relationship between any current disability and
service-connected disability.  See Bostain v. West, 11 Vet.
124, App. 124, 127 (1998), citing Espiritu v. Derwinski,
2 Vet. App. 492 (1992).  See also Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge").  As
such, the Veteran's assertions alone cannot provide a basis
for a grant of service connection.

The Board notes that Congress has specifically limited
service connection to instances where there is current
disability that has resulted from disease or injury.  See 38
U.S.C.A. � 1110.  In the absence of proof of PTSD as a result
of a verified in-service stress, or a current diagnosis of
peripheral neuropathy, the claims for service connection for
PTSD and for peripheral neuropathy as secondary to service-
connected diabetes mellitus cannot be granted.  See Gilpin v.
West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3
Vet. App. 223, 225 (1992).

Under these circumstances, the Board finds that the claims
for service connection for PTSD and for eye disability
causing vision loss, peripheral neuropathy, and erectile
dysfunction secondary to diabetes mellitus must be denied.
In reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the Veteran's
claims, the benefit-of-the-doubt doctrine is not applicable.
See 38 U.S.C.A � 5107(b); 38 C.F.R. � 3.102; Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Entitlement to service connection for posttraumatic stress
disorder is denied.

Entitlement to service connection for vision loss due to eye
disability as secondary to service-connected diabetes
mellitus is denied.

Entitlement to service connection for peripheral neuropathy
as secondary to service-connected diabetes mellitus is
denied.

Entitlement to service connection for erectile dysfunction as
secondary to service-connected diabetes mellitus is denied.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: VITO A CLEMENTI

disposition: granted

text:
Citation Nr: 0917000
Decision Date: 05/06/09    Archive Date: 05/12/09

DOCKET NO.  04-35 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Whether new and material evidence has been received to reopen
the Veteran's claim of entitlement to service connection for
Posttraumatic Stress Disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel

INTRODUCTION

The Veteran had active duty service from August 1975 to March
1984.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). It was previously before the Board in a July 2008
remand for a Travel Board hearing. The Veteran was afforded a
January 2009 Travel Board hearing before the undersigned
Veterans Law Judge. The hearing transcript is part of the
record, and the case is ready for review.

Because there is an October 2000 RO decision which
constitutes a final denial of service connection for PTSD,
this matter is characterized as a petition to reopen a
service connection claim for PTSD for new and material
evidence. Because the Board presently finds that the Veteran
has submitted new and material evidence to reopen her claim
of service connection for PTSD, no prejudice inures to the
Veteran by the Board's consideration of this petition to
reopen a claim last denied by rating decision dated in
October 2000. See Meyer v. Brown�9 Vet. App. 425, 431 (1996);
Allday v. Brown, 7 Vet. App. 517, 533 (1995); Branham v.
Derwinski, 1 Vet. App. 93 (1990).

The issue of service connection for PTSD is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.

FINDINGS OF FACT

1. By an October 2000 rating decision, the RO denied the
Veteran's claim of entitlement to service connection for
PTSD; a timely notice of disagreement was not received to
initiate an appeal from that determination.

2. Certain evidence received since the October 2000 rating
decision is neither cumulative, nor redundant of the evidence
of record at the time of the last prior final denial of the
claim sought to be reopened, and raises a reasonable
possibility of substantiating the claim of service connection
for PTSD.

CONCLUSIONS OF LAW

1. The October 2000 rating decision is final. 38 U.S.C.A. �
7105(c) (West 2002).

2. New and material evidence has been received to reopen the
Veteran's claim of entitlement to service connection for
PTSD. 38 U.S.C.A. � 5108 (West 2002);
38 C.F.R. � 3.156 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002); 38 C.F.R. �� 3.102, 3.156(a),
3.159 and 3.326(a) (2005). The Board has considered this
legislation, but finds that, given the favorable action taken
below, no discussion of the VCAA at this point is required.

Analysis

In an October 2000 rating decision, the RO denied the
Veteran's claim of entitlement to service connection for
PTSD. The RO sent notice of the decision to the Veteran at
her last address of record. A notice of disagreement was not
received to initiate an appeal from that determination.
Therefore, the October 2000 rating decision became final. 38
U.S.C.A. � 7105(c).

In April 2003, the Veteran submitted a request to reopen her
claim of entitlement to service connection for PTSD. When a
claim to reopen is presented under section 5108, VA must
first determine whether the evidence presented or secured
since the last final disallowance of the claim is new and
material. 38 U.S.C.A. � 5108;
38 C.F.R. � 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).

For purposes of the present appeal, new evidence means
existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative, nor redundant of the evidence of record
at the time of the last prior final denial of the claim
sought to be reopened, and must raise a reasonable
possibility of substantiating the claim. 38 C.F.R. � 3.156.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).

In October 2000, the RO denied the Veteran's claim of
entitlement to service connection for PTSD because the
Veteran failed to submit evidence of an in-service stressor.

Since the October 2000 RO decision, the Veteran submitted
statements and provided oral testimony regarding the details
of her stressor. Also, there are VA treatment notes from 2003
reflecting a PTSD diagnosis based in part on reported sexual
assault during active service. The statements, testimony, and
VA treatment notes are new because they were not previously
of record. They are material since they relate to
establishing an in-service stressor necessary to substantiate
the claim.

As new and material evidence has been received, the claim of
entitlement to service connection for PTSD is reopened. 38
U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

ORDER

The petition to reopen the claim of entitlement to service
connection for PTSD is granted. To this extent and to this
extent only, the appeal is granted.

REMAND

In order for service connection for PTSD to be granted, there
must be medical evidence establishing a diagnosis of the
disorder, credible supporting evidence that the claimed in-
service stressors actually occurred, and a link, established
by medical evidence, between the current symptomatology and
the claimed in-service stressors. 38 C.F.R. � 3.304(f).

If a PTSD claim is based on in-service personal assault,
evidence from sources other than the veteran's service
records may corroborate the veteran's account of the stressor
incident. Examples of such evidence include, but are not
limited to: records from law enforcement authorities, rape
crisis centers, mental health counseling centers, hospitals,
or physicians; pregnancy tests or tests for sexually
transmitted diseases; and statements from family members,
roommates, fellow service members, or clergy. Evidence of
behavior changes following the claimed assault is one type of
relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible
evidence of the stressor include, but are not limited to: a
request for a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes
of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social
behavior changes. 38 C.F.R. � 3.304(f)(3).

However, VA will not deny such claims without: (1) first
advising veterans that evidence from sources other than a
veteran's service medical records, including evidence of
behavior changes, may constitute supporting evidence of the
stressor; and (2) allowing him the opportunity to furnish
this type of evidence or advise VA of potential sources of
such evidence. Id.

The regulation specifically provides that VA "may submit any
evidence that it receives to an appropriate medical or mental
health professional for an opinion as to whether it indicates
that a personal assault occurred." Id. (Italics added).

The Board finds that a VA examination is necessary before it
may adjudicate the claim for service connection for PTSD. 38
C.F.R. � 3.304(f).

VA treatment records, dated April 2003, reflect that the
Veteran was diagnosed with PTSD. She reported to the VA
physician that she was raped during service by a fellow
service member. As part of treatment, she joined a women
stress disorder group. In a May 2003 statement, the Veteran
provided additional details that the rape occurred on
assignment in Worms, Germany during 1979. She reported the
incident, and was transferred to Miesau, Germany.

During the January 2009 Travel Board hearing, the Veteran
testified that she was raped during active service. She
reported the incident occurred in December 1979 and January
1980 during service in Worms, Germany. She could not recall
the assailant's name. She informed her supervisors about the
rape and assaults because the assailant persisted in
harassing her. No disciplinary action was taken against the
assailant. The supervisors transferred her to Miesau,
Germany. After the incident, the Veteran recalled being
depressed.. She stated that she did not seek any psychiatric
treatment following the incident, but consumed herself with
work and started abusing drugs and alcohol. She stated that
she began seeking rehabilitative treatment for drugs and
alcohol abuse around 1990. She also testified that following
service, a third rape occurred. Additionally, she reported
incidences of sexual abuse prior to military service, but the
psychological manifestations, such as depression or other
PTSD symptoms, were not present until after she was assaulted
during military service.

The Veteran also stated that she reported the in-service rape
to two senior-level non-commissioned officers - her unit
first sergeant and a command sergeant major. She further
stated that to her knowledge, the perpetrator of the alleged
rape was not punished because he was near to retirement. She
stated that she did not testify at any administrative or
formal inquiry of the incident.

The Board finds that a VA examination is necessary to obtain
a mental healthcare provider's opinion on whether a rape
occurred during the Veteran's military service.
Although the following summary in no way relieves the
examiner of reviewing the record in accordance with the
remand directives below, the Board notes that the record
reveals the following:

Service treatment records:

1.	In June 1977, the Veteran complained of depression;

2.	In February 1980, the Veteran was treated for an
episode of lower abdominal and flank pain, and
complained of an "itchy yellowish" vaginal
discharge;

3.	During a March 1980 medical evaluation, the Veteran
reported that she was then having, or once had,
"frequent trouble sleeping;" "depression or
excessive worry;" and "nervous trouble of any
sort," which she recorded as occurring in Korea
from February 1977 to November 1977, and in Germany
from December 1979 to January 1980 - the military
medical examiner noted that the Veteran had
"situational depression;"

4.	In a March 1980 report of medical examination, the
Veteran was noted to be "normal" on clinical
psychiatric evaluation;

5.	In April 1980, the Veteran complained of an
inability to sleep at nights, and reported that she
had recently returned from an emergency leave - she
was diagnosed as having depression;

6.	In a June 1980 report of medical examination, the
Veteran was noted to be "normal" on clinical
psychiatric evaluation;

7.	In a January 1983 pre-separation physical
examination questionnaire, the Veteran denied then
having, or ever having had, "frequent trouble
sleeping;" "depression or excessive worry;" and
"nervous trouble of any sort.

While serving on active military duty, the Veteran was
promoted to Specialist Five E-5 and was discharged from
active duty in March 1984 in that rank and pay grade;
After she was discharged from active military duty in March
1984, the Veteran enlisted in the US Army Reserve in October
1984 and was discharged from the US Army Reserve in October
1988. Post-active service, the Veteran was promoted to Staff
Sergeant E-6 in June 1985 and to Sergeant First Class E-7 in
October 1986.

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC will advise the Veteran
that she may submit any further
information towards substantiation of the
claimed stressor, including but not
limited to evidence of any behavioral
changes after the alleged rape, such as a
request for a transfer to another
military duty assignment; deterioration
in work performance; substance abuse;
episodes of depression, panic attacks, or
anxiety without an identifiable cause; or
unexplained economic or social behavior
changes.

2.  The RO/AMC will ascertain if the
Veteran has received any VA, non-VA, or
other medical treatment for PTSD which is
not evidenced by the current record.  The
Veteran should be provided with the
necessary authorizations for the release
of any treatment records not currently on
file.  The RO/AMC should then obtain
these records and associate them with the
claims folder.

3.  After the passage of a reasonable
amount of time or upon the Veteran's
response, the RO/AMC will schedule the
Veteran for a VA examination by an
appropriate mental healthcare provider.
38 C.F.R. � 3.304(f). The following
considerations will govern the
examination:

(a) The entire claims file and a
copy of this remand will be made
available for review by the
examiner. The examiner should
acknowledge receipt and review of
the claims file and the remand
instructions in any report
generated.

(b) The examiner is asked to opine
based on all the evidence of record
and following an interview with the
Veteran whether he or she believes a
rape or sexual assault occurred
during the Veteran's active service,
and the examiner must state the
medical and factual basis for such
an opinion;.

(c) If the examiner believes a rape
or sexual assault occurred during
active service, then he or she
should comment on whether the
Veteran currently has a PTSD
diagnosis or other mental disorder
as a result of the sexual assault,
and the examiner must state the
medical basis for such an opinion in
accordance with current standards of
the diagnoses of mental disorders; .

(d) If the Veteran is found to have
a current PTSD diagnosis or other
mental disorder, the examiner should
comment on the following:

(i) Whether the PTSD diagnosis
or mental disorder is related
to the in-service rape and
sexual assault, as opposed to
reported incidences of sexual
assault occurring before and
after military service.

(ii) Whether the Veteran had a
mental disorder preexisting
military service as a result of
prior sexual abuse reported at
the January 2009 hearing and
reflected in an April 2003 VA
Psycho-social assessment. If
so, the examiner must state
whether the in-service sexual
assault constituted an
aggravation of the pre-existing
mental disorder.

(e) All opinions must be supported
by both the factual bases of record
and medical rationale. If the
examiner is unable to give an
opinion without resort to
speculation, he or she must so
state.

4.  Thereafter, the RO/AMC should review
the claims file to ensure that all of the
foregoing requested development has been
completed to the extent possible. In
particular, the RO/AMC should review the
requested examination report and required
medical opinions to ensure that they are
responsive to and in complete compliance
with the directives of this remand and if
they are not, the RO/AMC should implement
corrective procedures. Stegall v. West,
11 Vet. App. 268 (1998).

5.  After completion of the above, and
any additional development of the
evidence, the RO/AMC should review the
record, to include all additional
evidence, and readjudicate the claim. If
applicable, the RO/AMC's attention is
called to the law as to the presumption
of soundness and aggravation of pre-
existing disorders, as noted in 38 U.S.C.
� 1111, VA must show by clear and
unmistakable evidence (1) that the
disease or injury existed prior to
service and (2) that the disease or
injury was not aggravated by service.
VAOPGCPREC 3-2003 (July 16, 2003); Wagner
v. Principi, 370 F. 3d 1089 (Fed. Cir.
2004). By "clear and unmistakable
evidence" is meant that which cannot be
misunderstood or misinterpreted; it is
that which is undebatable. Vanerson v.
West, 12 Vet. App. 254 (1999).

If any benefits sought remain denied, the
Veteran and her representative should be
issued an appropriate supplemental
statement of the case, and afforded the
opportunity to respond. The case should
then be returned to the Board for further
appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

	(CONTINUED ON NEXT PAGE)

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals 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.A. �� 5109B, 7112 (West Supp. 2008).

______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: A BRYANT

condition: eye

text: Entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is denied.

text: Accordingly, the cause of death and § 1151 claims are REMANDED for the following action:

text:
Citation Nr: 0918000
Decision Date: 05/13/09    Archive Date: 05/21/09

DOCKET NO.  99-13 637A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio

THE ISSUES

1.  Entitlement to service connection for the cause of the
Veteran's death.

2.  Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. � 1151 for the
death of the Veteran as caused by VA hospitalization or
medical or surgical treatment in June 1998.

3.  Entitlement to DIC under the provisions of 38 U.S.C.A.
� 1318.

REPRESENTATION

Appellant represented by:	Sandra E. Booth, Attorney at
Law

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Paul S. Rubin, Associate Counsel

INTRODUCTION

The Veteran was injured while on active duty for training
(ACDUTRA) while in the Army National Guard from March 13,
1960 to August 29, 1960, and was service-connected for
residuals of that injury.  He died in November 1998.  The
appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from January 1999, January 2000, and
December 2000 adjudications of the Department of Veterans
Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The
January 1999 rating decision adjudicated the issue of service
connection for the cause of the Veteran's death.  The January
2000 rating decision adjudicated the issue of entitlement to
DIC benefits under the provisions of 38 U.S.C.A. � 1151.  A
December 2000 supplemental statement of the case (SSOC)
adjudicated the question of entitlement to DIC under
38 U.S.C.A. � 1318.

In October 1999, the appellant testified at a RO hearing.
Later, in September 2001, the appellant testified at a
hearing before the undersigned Veterans Law Judge at the RO
(Travel Board hearing).  Copies of the transcripts of these
hearings have been associated with the claims file.

In July 2002, the Board forwarded the case to an independent
medical expert (IME) for an advisory opinion, which was
rendered in July 2002.

This case has been before the Board on two other prior
occasions.  In an April 2003 decision, the Board denied
service connection for the cause of the Veteran's death,
denied DIC under the provisions of 38 U.S.C.A. � 1151, and
denied a construed accrued benefits claim for automobile
purchase assistance.  The appellant appealed this decision to
the U. S. Court of Appeals for Veterans Claims (Court).  In a
June 2006 Memorandum Decision the Court affirmed the
construed accrued benefits claim for automobile purchase
assistance, but indicated that the actual issue to be
addressed was whether, at the time of the Veteran's death,
the VA Secretary was obligated under 38 U.S.C.A. � 3902(a) to
make payment for a vehicle, and what effect the Veteran's
death had on that obligation.  As to the remaining issues,
the Court vacated and remanded the issues of service
connection for the cause of the Veteran's death and DIC under
the provisions of 38 U.S.C.A. � 1151.  Specifically, these
issues were remanded for the Board to consider the provisions
of the amended 38 C.F.R. � 3.361 (especially foreseeability)
and the provisions of 38 C.F.R. � 17.32 (informed consent).
The Court also directed the Board to address whether the
appellant was entitled to DIC under 38 U.S.C.A. � 1318, since
the Court identified it as an issue on appeal as well.

The case was returned to the Board in February 2007 to
implement the Court's directives.  The Board remanded the
appellant's claims for service connection for the cause of
the Veteran's death and DIC under the provisions of 38
U.S.C.A.
� 1151 per the Court's instructions.  Specifically, these
claims were remanded for notice pursuant to the Veterans
Claims Assistance Act of 2000 (VCAA).  In addition, the RO
was instructed to consider and provide notice of the laws and
regulations pertaining to service connection (38 U.S.C.A.
� 1131; 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309); service
connection for the cause of the Veteran's death (38 U.S.C.A.
� 1310; 38 C.F.R. � 3.312); DIC under 38 U.S.C.A. � 1151
(only the statute effective from October 1, 1997), including
the implementing regulation at 38 C.F.R. � 3.361 and the
regulation 38 C.F.R. � 17.32 (informed consent).  It is still
not clear whether this development was completed by the RO
because the claims file has remained at the Board and Court
for quite some time due to the protracted disposition of the
� 1318 claim.

As to the appellant's claim of DIC under 38 U.S.C.A. � 1318,
in the February 2007 decision, the Board denied this claim.
The appellant appealed this decision to the Court.  Pursuant
to a February 2009 Order and Joint Motion, the Court vacated
the Board's decision that had denied the appellant's claim of
DIC under 38 U.S.C.A. � 1318.  The Court then remanded the �
1318 claim for the Board to address whether an earlier
pending unadjudicated claim for an extraschedular TDIU rating
should be referred to the Director of Compensation and
Pension under 38 C.F.R. � 4.16(b).  In addition, the Court
advised it did not have jurisdiction of the issues of
entitlement to service connection for the cause of the
Veteran's death and DIC under the provisions of 38 U.S.C.A.
� 1151, since the Board had previously remanded these claims
in February 2007 for further development, such they were not
yet final.  See Breeden v. Principi, 17 Vet. App. 475, 478-79
(2004); Hampton v. Gober, 10 Vet. App. 481, 483 (1997).

After receiving this case back from the Court, the Board sent
the appellant a letter in March 2009 informing her that she
had 90 days to submit additional evidence.  The appellant's
attorney responded later that same month, submitting
additional argument with a waiver of her right to have the RO
initially consider it.  The case has now returned to the
Board for appellate review.

To comply with the Court's earlier June 2006 Memorandum
Decision, the Board is again remanding the claims for
entitlement to service connection for the cause of death and
DIC under the provisions of 38 U.S.C.A. � 1151 to the RO via
the Appeals Management Center (AMC) in Washington, DC.  But
the Board will go ahead and decide the claim of DIC under
38 U.S.C.A. � 1318.

FINDINGS OF FACT

1.  The Veteran was not evaluated totally disabled for 10
continuous years immediately preceding his death; was not
totally disabled from date of his discharge for a period of
not less than 5 years immediately preceding his death; and
was not a former prisoner of war (POW).

2.  The Veteran was not "entitled to receive"
total disability compensation by way of the eight possible
exceptions listed under 38 C.F.R � 3.22(b).

CONCLUSION OF LAW

The criteria are not met for DIC pursuant to 38 U.S.C.A. �
1318.  38 U.S.C.A. � 1318 (West 2002 & Supp. 2008); 38 C.F.R.
� 3.22 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

As provided for by the VCAA, VA has a duty to notify and
assist claimants in substantiating a claim for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2008); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and
3.326(a) (2008).

However, in the present decision, the Board has found that,
as a matter of law, the appellant is not entitled to DIC
under the provisions of 38 U.S.C.A. � 1318.  The notice and
duty to assist provisions have no effect on an appeal where
the law, and not the underlying facts or development of the
facts are dispositive in a matter.  Manning v. Principi, 16
Vet. App. 534, 542-43 (2002).  In such claims where the law
is dispositive, the claim must be denied due to a lack of
legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In cases such as this, VA is not required to address the duty
to notify or assist a claimant, where a claim cannot be
substantiated because there is no legal basis for the claim
or because undisputed facts render the claimant ineligible
for the claimed benefit.  See Dela Cruz v. Principi, 15 Vet.
App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129
(2002); see also VAOPGCPREC 5-2004.  The Board also
emphasizes that the Court failed to mention any VCAA
deficiency in its February 2009 Order and Joint Motion.

Governing Laws and Regulations for 38 U.S.C.A. � 1318 Claim

If the Veteran's death is determined not to be service
connected, pursuant to 38 U.S.C.A. � 1318, entitlement to DIC
may be established in the same manner as if the Veteran's
death were service connected where it is shown that the death
was not the result of willful misconduct, and the Veteran (1)
was continuously rated totally disabled for the 10 years
immediately preceding death, (2) was rated totally disabled
for a period of at least five years from the date of his
discharge or release from active duty or (3) 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.A. �
1318 (West 2002 & Supp. 2008); 38 C.F.R. � 3.22(a) (effective
Jan. 21, 2000).  The total rating may be schedular or may be
a total disability rating based on unemployability (TDIU).
38 C.F.R. � 3.22(c).

Even if the Veteran was not actually receiving total
disability compensation per the above circumstances, he still
may have been "entitled to receive" total disability
compensation by way of one of the eight possible exceptions
listed under 38 C.F.R. � 3.22(b).

As to the first two exceptions, the term "entitled to
receive" can mean that the Veteran filed a claim for
disability compensation during his lifetime and one of the
following two circumstances is met: (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 in paragraph (a)(2) of
this section but for clear and unmistakable error (CUE)
committed by VA in a decision on a claim filed during the
Veteran's lifetime concerning the issues of service
connection, disability evaluation, or effective date; 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 ��
3.156(c) and 3.400(q)(2) of this part for the relevant period
specified in paragraph (a)(2) of this section.  38 C.F.R. �
3.22(b)(1) and (2).

In addition, the term "entitled to receive" can also mean
that at the time of death, the Veteran had service-connected
disability rated totally disabling by VA, but was not
receiving compensation due to six more possible
circumstances:  (1) VA was paying the compensation to the
Veteran's dependents; (2) VA was withholding the compensation
under authority of 38 U.S.C. � 5314 to offset an indebtedness
of the Veteran; (3) the Veteran had not waived retired or
retirement pay in order to receive compensation; (4) VA was
withholding payments under the provisions of 10 U.S.C. �
1174(h)(2); (5) VA was withholding payments because the
Veteran's whereabouts was unknown, but the Veteran was
otherwise entitled to continued payments based on a total
service-connected disability rating; or (6) 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)(3).

In Cole v. West, 13 Vet. App. 268 (1999), the Court held that
in cases in which the survivor seeks to establish entitlement
to DIC under 38 U.S.C.A. � 1318 via CUE, she must provide the
date or the approximate date of the decision or otherwise
provide sufficient detail so as to identify the decision
sought to be attacked collaterally, and establish how based
on the evidence of record and the law at the time of the
decision, the Veteran would have been entitled to receive a
total rating.

Previously, under the "hypothetical entitlement" approach,
for claims for DIC benefits filed before January 21, 2000, if
the survivor of a deceased Veteran could prove that a Veteran
would have been entitled to receive compensation for a 100%
disabling service-connected disability for ten years prior to
death, then the survivor may claim DIC benefits under � 1318,
even though the deceased Veteran did not actually receive
such compensation.  VA Gen. Coun. Prec. 68-90 (July 18,
1990).  See also Green v. Brown, 10 Vet. App. 111, 118-19
(1997); Carpenter v. West, 11 Vet. App. 140 (1998); Wingo v.
West, 11 Vet. App. 307 (1998); Cole v. West, 13 Vet. App.
268, 278 (1999).  However, effective January 21, 2000, 38
C.F.R. � 3.22 precluded survivors of Veterans from bringing
claims for DIC benefits using a "hypothetical entitlement"
approach for claims pending as of that date.  Rodriguez v.
Nicholson, 19 Vet. App. 275 (2005).  See also 65 Fed. Reg.
3,388 (Jan. 21, 2000).

Subsequently, applying the three-part test outlined in
Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir.
2005), the U.S. Court of Appeals for the Federal Circuit held
that 38 C.F.R. � 3.22, barring the use of the "hypothetical
entitlement" theory, does not have an impermissible
retroactive effect and may be applied to claims for DIC
benefits filed by survivors prior to January 21, 2000.  The
Federal Circuit Court found that the application of the
amended section 3.22 did not create an unlawful retroactive
effect because it did not retrospectively diminish any rights
to benefits.  In essence, the amended regulation 38 C.F.R. �
3.22 does not have an impermissible retroactive effect, and
may be applied in order to bar DIC claims filed by survivors
under the "hypothetical entitlement" theory, no matter when
the claim was filed.  Rodriguez v. Peake, 511 F.3d 1147, 1156
(Fed. Cir. 2008).

Analysis - 38 U.S.C.A. � 1318 Claim

The Veteran died on November [redacted], 1998 of cardio-pulmonary
arrest.  Initially, after a review of the record, the Board
finds that the Veteran was not in actual receipt of  total
disability compensation due to service-connected disabilities
for a period of 10 or more years immediately preceding his
death.  38 U.S.C.A. � 1318(b) (West 2002  & Supp. 2008);
38 C.F.R. � 3.22(a) (2008).

At the time of his death, he was service-connected for five
separate disabilities.  The combined service-connected rating
was 100 percent by way of meeting the percentage requirements
for a TDIU, but effective only from March 28, 1995.
Therefore, the Veteran was only in receipt of a total 100
percent rating for a period of less than four years prior to
the Veteran's death in November 1998.  As such, he did not
have total disability for a period of ten or more years
immediately preceding his death when considering the TDIU
percentage requirements.  It follows that he also did not
have total disability (100 percent) for at least five years
from the date of his separation from service in August 1960.
Furthermore, there is no indication or allegation that he was
a former POW.  In short, he was not in actual receipt of
compensation for service-connected disability rated as
totally disabling by VA for any of the required periods of
time.  38 C.F.R. � 3.22(a).

But in a claim of hypothetical entitlement, the appellant,
through her attorney, contends that there was an
unadjudicated TDIU claim during the Veteran's lifetime which,
had it been decided favorably to the Veteran during his
lifetime, would have established entitlement to receive a
total disability rating (TDIU) for at least 10 years prior to
the Veteran's death.  The Veteran's attorney maintains that
the unadjudicated TDIU claim during the Veteran's lifetime
would have been under 38 C.F.R. � 4.16(b) (extraschedular
rating where the disabilities do not meet the minimum
schedular requirements for TDIU under 38 C.F.R. � 4.16(a)).
The contention is that the Veteran's service-connected left
knee disability rendered the Veteran unable to work from
1985, as evidenced by VA physician findings in 1985 that the
Veteran was unable to work because of residuals of service-
connected left knee disability, and the fact that the Veteran
did not in fact work from 1985 to the time of his death in
1998.

In the previous February 2007 Board decision, the Board
comprehensively addressed and rejected this claim based on
hypothetical entitlement.  In doing so, the Board discussed
in detail the Veteran's medical history, addressed whether
medical records raised a claim of entitlement to a TDIU that
was pending at the time of his death, and the amendment to 38
C.F.R. � 3.22.  Indeed, the Board stated,

Prior to January 21, 2000, 38 C.F.R. � 3.22
provided for DIC under 38 U.S.C.A. � 1318 if the
Veteran was in receipt of, or "for any reason"
was not in receipt of, but would have been
entitled to receive, compensation at the time of
death for a service-connected disability that was
continuously rated totally disabling by a
schedular or unemployability rating for a period
of 10 or more years immediately preceding death,
or from the date of the Veteran's discharge or
release from active duty for a period of not less
than 5 years immediately preceding death.  See 38
C.F.R. � 3.22(a)(2) (1999).  A number of Court
decisions interpreting 38 U.S.C.A. � 1318(b) have
found that a surviving spouse was entitled to
demonstrate that, for purposes of this section,
the Veteran hypothetically would have been
entitled to a different decision on a service-
connected-related issue, based on evidence in the
claims file or in VA custody at the time of the
Veteran's death and under the law then applicable
or subsequently made retroactively applicable.
See, e.g., Green v. Brown, 10 Vet. App. 111, 118-
19 (1997); Carpenter v. West, 11 Vet. App. 140
(1998); Wingo v. West, 11 Vet. App. 307 (1998);
Cole v. West, 13 Vet. App. 268, 278 (1999).

In Rodriguez v. Nicholson, 19, Vet. App. 275
(2005), the Court held that the January 21, 2000,
amendment to 38 C.F.R. � 3.22 to bar the
"hypothetical" entitlement theory with respect
to DIC claims made pursuant to 38 U.S.C. � 1318 is
not applicable to claims filed prior to January
21, 2000.  In this case, because the appellant's
claim for compensation under 38 U.S.C.A. � 1318
was received in April 1998, the Board will
consider the appellant's claim of hypothetical
entitlement to DIC pursuant to 38 U.S.C. � 1318.

In a claim of hypothetical entitlement, through
her attorney, the appellant contends that there
was an unadjudicated TDIU claim during the
Veteran's lifetime which, had it been decided
favorably to the Veteran during his lifetime,
would have established entitlement to receive a
total disability rating (TDIU) for at least 10
years prior to the Veteran's death.  The Veteran's
attorney contends that the unadjudicated TDIU
claim during the Veteran's lifetime would have
been under 38 C.F.R. � 4.16(b) (extraschedular
rating where the disabilities do not meet the
minimum schedular requirements for TDIU under
38 C.F.R. � 4.16(a)).  The contention is that the
Veteran's service-connected left knee disability
rendered the Veteran unable to work from 1985, as
evidenced by VA physician findings in 1985 that
the Veteran was unable to work because of
residuals of service-connected left knee
disability, and the fact that the Veteran did not
in fact work from 1985 to the time of his death in
1998.

The Board then explained in detail its reasons and bases for
rejecting the appellant's contention that there was an
unadjudicated TDIU claim pending at the time of the Veteran's
death.  The Board rejected the appellant's contention, which
was in reality a claim based on hypothetical entitlement, a
theory that was based on the Green, Carpenter, and Wingo line
of cases.

However, the appellant appealed this Board decision to the
Court.  Pursuant to a February 2009 Order and Joint Motion,
the Court vacated the Board's decision that had denied the
appellant's claim of DIC under 38 U.S.C.A. � 1318.  It then
remanded the � 1318 claim for the Board to address whether an
earlier pending unadjudicated claim for an extraschedular
TDIU rating should be referred to the Director of
Compensation and Pension under 38 C.F.R. � 4.16(b).  The
parties agreed, that the Board erred in finding that an
unadjudicated extraschedular TDIU claim was not raised at
least 10 years prior to the Veteran's death.  They further
added that the Board decision should be vacated because the
evidence submitted in connection with the Veteran's claims
for increased ratings for his service-connected knee
disability from 1985 to 1988 gave rise to an informal claim
for TDIU more than ten years prior to his death.  The parties
cited to evidence that was specifically discussed and
analyzed in the February 1, 2007, Board decision, which
rejected that conclusion.  In doing so, the parties cited the
Federal Circuit's decision in Comer v. Peake, 552 F.3d 1362
(Fed. Cir. 2009), for the proposition that regardless of
whether a claim is "specifically labeled" as a claim for a
TDIU, VA was obligated to determine all potential claims
raised by the record.

The Board will now address why it believes the Court's
instructions from the February 2009 Order and Joint Motion
were erroneous, such that the � 1318 can be denied as a
matter of law.

First, as a preliminary matter, Veterans' claims do not
survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236,
1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330,
333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
Therefore, any previously unadjudicated TDIU claim would not
last beyond the Veteran's death.

Second, as noted above, effective January 21, 2000, VA
amended 38 C.F.R. � 3.22 to restrict DIC benefits to cases
where the Veteran, during his or her lifetime, had
established a right to receive total service-connected
disability compensation for the period required by section
1318, or would have established such right but for CUE in the
adjudication of a claim or claims.  See 65 Fed. Reg. 3388
(Jan. 21, 2000).  Importantly, in Rodriguez v. Peake, 511
F.3d 1147 (Fed.Cir.2008), the Federal Circuit held that the
change in � 3.22 should be given retroactive effect, so that
a hypothetical entitlement theory of recovery was not
available to a claim filed before the regulatory change and
prior to Court's decision in Green v. Brown, 10 Vet. App. 111
(1997), which had interpreted the phrase "entitled to
receive" as allowing for a surviving spouse to use any
available evidence "to demonstrate that the Veteran
hypothetically would have been entitled to receive a
different decision" on a prior disability claim.  Id. at
118.  For reasons unknown to the Board, the Federal Circuit's
decision in Rodriguez was issued prior to the parties'
February 2009 Joint Motion but was neither cited nor
acknowledged by the parties.

Moreover, in Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir.
2009), which was decided shortly after the Court's February
12, 2009 Order granting the parties' Joint Motion, the
Federal Circuit held that the regulatory changes eliminating
the hypothetical entitlement theory of DIC, as discussed in
Rodriquez, are retroactive even where an appellant filed her
claim after the decision in Green (that it, after February
1997).  Notably, the Tarver case is factually similar to the
present case on appeal.

In Tarver, the Federal Circuit noted,

In Rodriguez v. Peake, we addressed the question
whether the 2000 amendment to rule 3.22 should be
given retroactive effect to a claim filed before
the amended rule became effective.  We analyzed
that question under the three-part test outlined
in Princess Cruises, Inc. v. United States, 397
F.3d 1358, 1362-63 (Fed.Cir.2005), and determined
that it was appropriate to give the amended rule
retroactive effect as applied to Mrs. Rodriguez's
claim.  511 F.3d 1147, 1156 (Fed.Cir.2008).

In the Rodriguez case, Mrs. Rodriguez had filed
her DIC claim not only before the amended rule was
issued, but also before the Veterans Court's
decision in Green was issued.  In that respect,
Rodriguez differs from this case, in that Mrs.
Tarver's claim was filed before the amended rule
was issued, but after the Veterans Court's
decision in Green.  With respect to Mrs.
Rodriguez's claim, we stated that although Green
"injected new hope into her case," Mrs.
Rodriguez neither relied on that decision nor had
a settled expectation of success at the time she
filed her claim.  Id.  For that reason, among
others, we held that it was not impermissible to
apply the new regulation to her claim, even though
she filed her claim before the regulation was
adopted.

The parties agree that this case [i.e. Tarver] is
distinguishable from Rodriguez only in that Mrs.
Tarver filed her DIC claim after Green had been
decided.  She contends that because she filed her
claim after the decision in Green, she had reason
to expect that she would be able to succeed on her
hypothetical entitlement theory.  We now consider
whether the distinction between the two cases
warrants an outcome different from that in
Rodriguez.

Id. at 1374.

The Tarver Court concluded that the amended rule, barring
hypothetical entitlement, also applied to claims filed after
the Court's decision in Green, explaining, "It would be
inconsistent with our precedents in Princess Cruises and
Rodriquez to hold the amended rule inapplicable to Mrs.
Tarver's claim on the ground that it was filed before the
amended rule took effect but after the Veterans Court's
decision in Green.  Id. at 1377.  The Tarver Court applied
the new regulation (38 C.F.R. � 3.22) to her claim,
effectively barring the theory of hypothetical entitlement
for her claim.

The Tarver case is factually similar to the present appeal
since the appellant here filed her DIC claim in November
1998, prior to the January 21, 2000 amended rule, but after
the Court's February 1997 Green decision.  Therefore, the
Board concludes that the theory of hypothetical entitlement
for the appellant's � 1318 claim is barred in the present
case pursuant to the holdings of the Federal Circuit in
Rodriguez and Tarver.

In the Court's February 2009 Order and Joint Motion, the
parties failed to acknowledge or discuss the impact of the
Federal Circuit's decision in Rodriguez, which was
dispositive of the claim.  Thus, the application of the law
precludes the very claim that the parties agree was raised by
the record, because any such claim, even if raised, would
have died with the Veteran.  Further, the pending
unadjudicated TDIU claim is nothing more than a claim of
entitlement to DIC benefits under 38 U.S.C.A. � 1318 under
the "hypothetical entitlement" theory that ceased to exist
prior to the date of the Joint Motion.  Moreover, the Board
specifically and comprehensively addressed the very claim
that the parties agree was raised by the record and rejected
it.  As such, the Court's February 2009 Order and Joint
Motion was erroneous.

Where a case is addressed by an appellate court, remanded,
then returned to the appellate court, the "'law of the case'
doctrine operates to preclude reconsideration of identical
issues."  Johnson (Anne) v. Brown, 7 Vet. App. 25, 26-27
(1994) (per curiam order); see also Allin v. Brown, 10 Vet.
App. 55, 57 (1997); Chisem v. Brown, 8 Vet. App. 374, 375
(1995).  That is, the Board is generally bound by the
findings contained in the Joint Motion, as adopted by the
Court.  See Chisem, 10 Vet. App. at 527-28 (1997) (under the
"law of the case" doctrine, appellate courts generally will
not review or reconsider issues that have already been
decided in a previous appeal of the same case, and,
therefore, the Board is not free to do anything contrary to
the Court's prior action with respect to the same claim).

However, the Federal Circuit has articulated, and the Court
has recognized, "three exceptions to the law of the case
doctrine: (1) When the evidence at trial was substantially
different from that in the former trial upon when the
appellate court based its decision; (2) when the controlling
authority has since made a contrary decision of law; and (3)
when the appellate decision was clearly erroneous."  See
Chisem, supra, 8 Vet. App. at 375 (1995) (citing Kori Corp.
v. Wilco Marsh Buggies and Draglines, Inc. 761 F.2nd 649, 657
(Fed. Cir. 1985)).  See also Teten v. West, 13 Vet. App. 560,
563 (2000).

In the present case, the Board is free to act contrary to the
Court's instructions in the February 2009 Order and Joint
Motion, since the second and third exceptions to the "law of
the case" doctrine applies.  That is, as to the second
exception, the directives of the Court's February 2009 Order
and Joint Motion are no longer appropriate since the Court
(the controlling authority) has made a subsequent contrary
decision as to applicable law by way of the Tarver case in
March 2009.  As to the third exception, since the Court's
Order and Joint Motion was clearly erroneous based on its
failure to address hypothetical entitlement or Rodriguez, the
Board can reconsider the appellant's � 1318 claim.  In sum,
based on the exceptional circumstances existing in the
present case, the Board concludes that the Court's prior
Order and Joint Motion does not preclude the Board from
denying the appellant's � 1318 claim.

It follows that it is not necessary for the Board to remand
the � 1318 claim to the RO so that it may refer an earlier
pending unadjudicated claim for an extraschedular TDIU rating
to the Director of Compensation and Pension under 38 C.F.R.
� 4.16(b).  Any earlier unadjudicated claim for an
extraschedular TDIU pursuant to 38 C.F.R. � 4.16(b) would
constitute a claim for hypothetical entitlement, which is
barred as a matter of law per Rodriguez and Tarver, supra.

Thus, since the appellant's theory of hypothetical
entitlement for � 1318 benefits is barred as a matter of law,
the appellant can only establish entitlement to � 1318
benefits if she shows the Veteran was "entitled to receive"
total disability compensation by way of one of the eight
possible exceptions listed under 38 C.F.R. � 3.22(b).

However, there is no allegation by the appellant or any
evidence of record showing that she has met the criteria for
any one of the eight exceptions listed under 38 C.F.R.
� 3.22(b).  In this regard, there has been no allegation or
evidence of CUE in any prior decision, nor has the appellant
or her attorney identified any other basis for granting this
claim aside from hypothetical entitlement.  38 C.F.R.
� 3.22(b)(1).  With regard to CUE, the appellant has not
provided the date or the approximate date of the decision or
otherwise provide sufficient detail so as to identify the
decision sought to be attacked collaterally, and establish
how based on the evidence of record and the law at the time
of the decision, the Veteran would have been entitled to
receive a total rating.  See Cole v. West, 13 Vet. App. 268
(1999).  In fact, in a May 2007 letter, the appellant's
attorney indicated she was not required to demonstrate CUE in
order to attain relief under 38 U.S.C.A. � 1318.  Therefore,
there is no legal basis for granting the appellant's claim
pursuant to 38 U.S.C.A. � 1318.

In essence, the facts of this case are not in dispute and the
law is dispositive.  Accordingly, the appellant's claim under
the provisions of 38 U.S.C.A. � 1318 must be denied for lack
of legal merit.  See Cacalda v. Brown, 9 Vet. App. 261 (1996)
(where law is dispositive, not evidence, the appeal should be
terminated for lack of legal merit or entitlement); accord
Luallen v. Brown, 8 Vet. App. 92 (1995); Sabonis v. Brown, 6
Vet. App. 426 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir.
1995).

ORDER

Entitlement to DIC under the provisions of 38 U.S.C.A. � 1318
is denied.

REMAND

First, as to the appellant's claims for service connection
for the cause of the Veteran's death and DIC under 38
U.S.C.A. � 1151, as noted above, it is still not clear
whether previous development requested by the Board in its
February 2007 remand was completed by the RO.  This is
because the claims file has remained at the Board and the
Court for quite some time - due to the protracted
disposition of the � 1318 claim.  A remand by the Board
confers on the claimant, as a matter of law, the right to
compliance with the remand orders.  Stegall v. West, 11 Vet.
App. 268, 271 (1998).  Failure of the Board to insure
compliance with remand instructions constitutes error and
warrants the vacating of a subsequent Board decision.  Id.
Therefore, in light of Stegall, supra, these issues are once
again remanded to the RO to ensure compliance with the
Board's previous February 2007 remand instructions.

Second, as to the � 1151 claim, the Court instructed that the
Board adequately address the issue of whether there was
informed consent under 38 C.F.R. � 17.32 for the June 1, 1998
heart surgery.  In this regard, although the claims folder
contains inpatient medical records from the time of the
Veteran's June 1, 1998 heart surgery, these records do not
include a copy of any signed informed consent from the
Veteran.  Signature consent is required for all VA diagnostic
and therapeutic treatments or procedures that require the use
of sedation, such as the coronary bypass procedure the
Veteran underwent on June 1, 1998.  See 38 C.F.R. � 17.32(d)
(2008).  Given the complexity of the surgery, it is highly
likely an informed consent was completed by the Veteran, but
the Board cannot exercise any independent judgment of the
fact of its completion, or its substantive validity, without
access to the actual document.  The Veteran's attorney in an
October 2008 letter has also noted the absence of the
informed consent in the claims folder.  Therefore, the file
will be returned to the RO via the AMC so that a complete
legible copy of the informed consent for this surgery can be
obtained and included in the claims folder for appellate
review.

Third, after completion of the above development, the RO
should obtain a medical opinion indicating whether the
proximate cause of the Veteran's death was due to an event
not reasonably foreseeable stemming from the VA surgery
performed on June 1, 1998.  The Board is requesting this
opinion since the Court concluded that the Board failed to
adequately consider foreseeability pursuant to 38 C.F.R.
� 3.361(d)(2) when it previously adjudicated the � 1151
claim.

Accordingly, the cause of death and � 1151 claims are
REMANDED for the following action:

1.	Follow the Board's previous
instructions in the February 2007
remand pertaining to the cause of death
and � 1151 claims.  That is, send the
appellant a VCAA notice letter
addressing the evidence necessary to
substantiate these particular claims.
This VCAA letter must also comply
with the Court case of Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006),
aff'd sub nom. Hartman v. Nicholson,
483 F.3d 1311 (2007).

2.	Contact the VAMC in Cleveland, Ohio and
obtain a legible copy of the Veteran's
informed consent for the June 1, 1998
heart bypass surgery.  All attempts to
secure this informed consent, and any
response received, must be documented in
the claims file.  If no informed consent
is available, a response to that effect
is required and should be documented in
the file.

3.	After obtaining a copy of the informed
consent, then secure a VA medical opinion
pertaining to the � 1151 claim from an
appropriate physician.  The claims file,
including a complete copy of this remand,
must be made available for review of the
Veteran's pertinent medical history.
Based on a comprehensive review of the
claims file, the physician is asked
whether it is at least as likely as not
(50 percent or more probable) the
proximate cause of the Veteran's death
was due to an event not reasonably
foreseeable stemming from the VA bypass
surgery performed on June 1, 1998.
In making this determination, the
physician should indicate whether the
Veteran's subsequent death several months
after his surgery was the type of risk
that a reasonable health care provider
would have disclosed in connection with
any consent forms signed by the Veteran.

     The term "at least as likely as not"
does not mean merely within the realm of
medical possibility, but rather that the
weight of medical evidence both for and
against a conclusion is so evenly
divided that it is as medically sound to
find in favor of that conclusion as it
is to find against it.  The designated
VA physician should discuss the medical
rationale of the opinion, whether
favorable or unfavorable, based on the
findings and information obtained from
review of the record.  If the examiner
is unable to provide the requested
opinion, please expressly indicate this
and discuss why this is not possible or
feasible.

4.	Then readjudicate the cause of death
and � 1151 claims in light of the
additional evidence secured.  If these
claims are not granted to the
appellant's satisfaction, send her and
her attorney a SSOC and give them an
opportunity to respond to it before
returning the file to the Board for
further appellate consideration.  This
SSOC should address and provide notice
of the laws and regulations pertaining
to service connection (38 U.S.C.A.
� 1131; 38 C.F.R. �� 3.303, 3.304,
3.307, 3.309); service connection for
the cause of the Veteran's death
(38 U.S.C.A. � 1310; 38 C.F.R.
� 3.312); DIC under 38 U.S.C.A. � 1151
(only the statute effective from
October 1, 1997), including the
implementing regulation at 38 C.F.R.
� 3.361 and the regulation 38 C.F.R.
� 17.32 (informed consent).  See
February 2007 Board remand.

The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims
must be afforded expeditious treatment.  The law requires
that all

claims that are remanded by the Board or by the Court for
additional development or other appropriate action must be
handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B,
7112 (West Supp. 2008).

______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs