Citation Nr: 1301865 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-38 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to a Department of Veterans Affairs service connected burial allowance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran had active military service from April 1944 to December 1945. He died in August 1984. The appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This case was remanded for further development in July 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 1984. The death certificate lists the immediate cause of death as cardiac arrest due to end stage renal disease due to diabetic nephropathy. 2. At the time of death, the Veteran was not service connected for any disability. 3. Cardiac arrest, renal disease and diabetic nephropathy were not manifest during active service, and neither diabetes mellitus, renal disease nor cardiovascular disease were manifest to a compensable degree within one year of separation from active duty and are not otherwise attributable to active service. 4. Cardiac arrest, renal disease and/or diabetic nephropathy were not caused or worsened by a service-connected disability. CONCLUSIONS OF LAW 1. The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). 2. The criteria for service connected burial benefits are not met. 38 U.S.C.A. §§ 2302, 2307, 5107; 38 C.F.R. §§ 3.159, 3.1600. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that because the RO's adjudication of a claim for dependency and indemnity compensation benefits hinges first on whether a veteran was service-connected for any condition during his lifetime, the notice in such a claim must include, inter alia, a statement of the conditions (if any) for which a veteran was service-connected at the time of his death. Id. at 352-53. The Board notes that the Veteran was not service connected for any disability during his lifetime. VA notified the appellant in correspondence dated in September 2007 and September 2008 of the information and evidence needed to substantiate and complete her claim. This case was most recently readjudicated in a March 2012 supplemental statement of the case. This matter was previously remanded by the Board in July 2010 to locate, if available, any outstanding private treatment records regarding the Veteran's diabetes mellitus and VA treatment records from June 1982 to August 1984. The RO/AMC obtained VA treatment records from 1982. The RO also attempted to obtain records from the San Bernardino Community Hospital as identified by the appellant; however, in November 2011 the hospital reported that those records are not available. The Board finds that the instructions set forth in its July 2010 remand were complied with and that VA fulfilled its duty to assist. Hence, the case is ready for adjudication. Service Connection for Cause of Death The appellant appeals the denial of service connection for the cause of the Veteran's death. The Veteran's death certificate indicates that he died in August 1984 as a result of cardiac arrest due to end stage renal disease due to diabetic nephropathy. Diabetes mellitus was listed as another condition but not related to the immediate cause of death. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as diabetes mellitus and cardiovascular renal disease, including hypertension, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The debilitating effects of a service- connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Initially, the Board finds that the evidence preponderates against entitlement to service connection for the cause of the Veteran's death on a direct basis. Service treatment records reveal no complaints, findings or diagnoses of diabetes mellitus and/or heart disease to include cardiovascular renal disease. At separation, the Veteran's heart was normal. Neither cardiovascular renal disease nor diabetes mellitus were compensably disabling within a year of separation from active duty. To the extent that the appellant argues the Veteran was healthy upon entry into service but came out sick, the evidence shows that diabetes mellitus was not diagnosed until 1958 over a decade following the Veteran's discharge from service and heart problems are not shown until many decades after service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no competent evidence or opinion that the Veteran's cause of death was related to his military service and neither the appellant nor her representative has presented such an opinion. In sum, the evidence preponderates against finding that the Veteran's cause of death is directly related to service. There is no evidence that a service-connected disability was the principal or contributory cause of the Veteran's death. To that end, at the time of his death, the Veteran was not service connected for any disability. The Board has considered the appellant's sincerely held belief that the Veteran's death was related to a disability of service origin. As a lay person, the appellant is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the question of etiology of the Veteran's death, i.e., the cause of his cardiac arrest due to end stage renal disease, due to diabetic nephropathy, goes beyond a simple and immediately observable cause-and-effect relationship. As such, she is not competent to render an opinion of etiology as to the medical cause of her husband's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the record is devoid of a showing that the Veteran's death was caused by service or a service-connected disability. No competent evidence has been presented showing that the fatal disease processes were related to service. Here, the appellant has not presented competent evidence of a link between the fatal disease processes and service. Although the Board has considered her opinion and testimony, such evidence involves medically complex elements and she is not competent. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that 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). Service Connected Burial Benefits The term "burial benefits" means payment of money toward funeral and burial expenses. See 38 C.F.R. §§ 3.1600. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C.A. § 2302; 38 C.F.R. § 3.1600. If a veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 C.F.R. § 3.1600(a). The appellant submitted a claim for entitlement to burial benefits in June 2007. The record shows, however, that the appellant was already granted an allowance for funeral and burial expenses for the deceased Veteran including an allowance for plot or interment expenses in November 1984. Under 38 U.S.C.A. § 2307; 38 C.F.R. § 3.1600(a), however, a greater amount of burial allowance is warranted if the Veteran died of a service-connected disability. As noted above, service connection for the cause of the Veteran's death has been denied. As such, service-connected burial benefits cannot be awarded as a matter of law. Id. ORDER Entitlement to service connection for the cause of the Veterans death is denied. Entitlement to service connected burial benefits are denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs