Citation Nr: 1637094 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 09-22 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation under the provisions of 38 C.F.R. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1956 to July 1956. The Appellant is the Veteran's surviving spouse. The Veteran died in August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. By a filing of January 2007, the Appellant, as a surviving spouse, applied for dependency and indemnity compensation, death pension, and accrued benefits. In an April 2009 Statement of the Case, the Appellant was notified of the RO's denial of the claims for dependency and indemnity compensation (DIC), death pension, and accrued benefits. The VA Form 9 filed by the Appellant in June 2009 limited the appeal to "contributory cause of death" and "already receiving 100% serviced connected disability - 10yrs." Thus, the Appellant has appealed only the issues of service connection for cause of death and entitlement to compensation under 38 U.S.C.A. § 1318. Accordingly, the issues of entitlement to death pension and accrued benefits are not on appeal before the Board. The issue of entitlement to burial benefits has been raised by the record in a September 2006 application, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran died in August 2006 and his death certificate indicates that the immediate cause of death was cardiopulmonary arrest, due to or as a consequence of hypertension and dysphagia. 2. The Appellant was married to the Veteran at the time of his death. 3. At the time of the Veteran's death, he was service-connected for bipolar disorder with a 100 percent evaluation, effective March 1997. 4. A service-connected disability was not the immediate or underlying cause of the Veteran's death, nor was a service-connected disability etiologically related to the cause of the Veteran's death. 5. The Veteran was not in receipt of a total disability rating for 10 continuous years prior to his death. 6. The Veteran was not continuously rated as totally disabled for the five-year period after his discharge from service. 7. The Veteran was not a prisoner of war. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.SC.A. §§ 101, 1112, 1113, 1310 (West 2014); 38 C.F.R. § 3.312 (2015). 2. The basic criteria for entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist VA's duty to notify was satisfied by a January 2007 letter and additional letters throughout the claims period. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has associated VA treatment records and private treatment records with the claims file. There is no indication that additional relevant information exists. VA obtained an independent medical opinion in April 2016, the results of which will be discussed below. The April 2016 opinion demonstrates that the medical expert reviewed the evidence of record and rendered an appropriate opinion based on the questions presented by VA. This opinion was rendered after a thorough review of the claims file and is supported by the evidence of record. Therefore, the Board finds that the evidence of record is adequate for adjudication. See Barr v. Nicholson, 21 Vet. App. 303, 311. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions regarding the issues on appeal have been met. 38 C.F.R. § 3.159 (c)(4). In short, the Board has carefully considered VA's duties to notify and assist, and it finds that they have been met. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and did not prejudice the Appellant. The Appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103. II. Entitlement to Service Connection for Cause of Death To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). In cases of service connection for the cause of the death of the veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). A marriage certificate shows that the Appellant and the Veteran were married in December 2001. The Appellant contends that the Veteran's VA treatment for bipolar disorder caused or at least aggravated seizures, which ultimately led to his death. Alternatively, the Appellant contends that the Veteran contracted an infection while in a VA facility, which led to his death. Specifically, the Appellant notes that the Veteran was receiving electroconvulsive therapy (ECT) in 2002 and 2003, and then continued ECT therapy on an outpatient basis until February 2005. The Appellant explains that the Veteran suffered from as many as 8 seizures between March 2005 and January 2006. Additionally, the Appellant contends that the Veteran contracted an infection in a VA facility which led to his death. Specifically, she contends that after he fell and hit his head in January 2006, he underwent brain surgery in a private facility (Stony Brook University Medical Center). After recovery, he was admitted to the VA psychiatric ward in June 2006. The Appellant asserts that while a patient in the psychiatric ward, the Veteran contracted an infection, possibly a pneumonia, that required IV antibiotics from June 2006 to July 2006, and that he was quarantined at one point, and never fully recovered from the infection. The Veteran died in August 2006. At the time of his death, the Veteran was service-connected for bipolar disorder. His death certificate indicates that the immediate cause of death was cardiopulmonary arrest, due to or a consequence of hypertension and dysphagia. The record does not show that the Veteran had a diagnosis of any cardiovascular disease or hypertension during service or within one year following his separation from active duty. 38 C.F.R. §§ 3.307 (a), 3.309(a). The claims file contains VA treatment records from March 1997 to August 2006, which note seizures both before and after ECT therapy. An April 2002 record states that ECT therapy was put on hold due to seizure episodes, and that ECT therapy began in May 2002 and continued throughout 2003 and 2004 until February 2005. March 2003 VA treatment records indicate continuing signs or symptoms of seizure disorder or Parkinson's disease, and VA treatment records from March 2005 to August 2006 note the Veteran's seizures and history of seizure disorder. Private medical treatment records from St. Johnland Nursing Center dated from March 2006 to May 2006 concern the Veteran's recovery from brain surgery. Specifically, neuropsychological screening evaluations from March 2006 and April 2006, as well as a discharge summary from May 2006, detail the Veteran's medical history and indicate a seizure post-operatively and an unwitnessed seizure in March 2006. The medical records also indicate his daily progress and behaviors, including his mood agitations and confusions post-surgery. Post-surgery, VA medical treatment records from June 2006 and July 2006 note confusion, a risk for infection, pneumonia, and infection control, and records from August 2006 indicate an aspiration pneumonia. VA treatment records also note other medical problems at that time, to include: dysphagia, depressive disorder, insomnia, seizure disorder, anemia, hypertension, bipolar disorder, and dementia. VA sought an opinion from a Board-certified psychiatrist, who reviewed the pertinent records in this case. Based on that review, he provided an April 2016 opinion regarding the etiology of the Veteran's death. The examiner stated: There is very limited research data on this issue, but the data that does exist strongly suggests that ECT does not cause or exacerbate the later development of a seizure disorder. Although there may be a common sense concern about the causal connection between ECT and later seizures, this does not seem to be supported by either research or current clinical thinking. As a result, I think it unlikely, certainly less than probable, that the Veteran's ECT treatment either caused or exacerbated his later seizure disorder. The psychiatrist then cited to two pertinent studies in support of the conclusion. With respect to the Veteran's infection contracted during 2006 rehabilitation, the examiner stated that "[i]t was unfortunate but not surprising that he should subsequently suffer an aspiration pneumonia in the course of this hospitalization. This is often the terminal event in people with severe dementia and is connected to the observed dysphagia that was documented in the Veteran's record." The examiner further elaborated that the "development of an aspiration pneumonia in this kind of circumstance is not indicative of negligence of either medical or nursing care." He stated that the only medical treatment would be insertion of a feeding tube to eliminate further aspirations, but noted that the Veteran's family declined to do so after considering the Veteran's quality of life. The examiner concluded that it is likely that "this aspiration did directly contribute to the timing of this Veteran's demise and it appears that he may have continued to aspirate and continued to have symptoms of an ongoing pneumonia even after his transfer to the palliative care unit, as might be expected if the aspiration pneumonia was directly connected to his underlying dementia." Ultimately, the independent medical examiner concluded that it is "unlikely that the Veteran's previous ECT either caused or aggravated the Veteran's development of a seizure disorder or his pneumonia. I think it unlikely that his previous ECT materially contributed to his death." In addition, the examiner saw "no evidence in the records that the Veteran's aspiration pneumonia was caused by any carelessness, negligence, lack of skill, error or judgment on the part of VA clinical staff while treating this Veteran. It is most likely that it was a natural consequence of the Veteran's underlying dementia." The Appellant has not submitted a private medical opinion contradicting the conclusions of the independent medical examiner, although she has been afforded the opportunity to do so. The Board is sympathetic to the Appellant's claim and recognizes the assertions of the Appellant with respect to the etiology of the Veteran's death. The Board has no reason to doubt the sincerity of the Appellant, nor the credibility of her statements. However, the Appellant lacks the medical training and expertise in this instance to provide a competent medical opinion as to the etiology of the Veteran's death. Consequently, the Board finds the opinion of the independent medical examiner to be of much greater probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). As a result, the preponderance of the evidence supports a finding that the Veteran's death was not the result a service-connected disability, secondary to a service-connected disability, or of the Veteran's active duty military service. The preponderance of the evidence suggests that the Veteran's death is a natural result of his non-service connected dementia. Thus, the Board finds that service connection for the Veteran's cause of death is not warranted on a presumptive or direct basis and the claim must be denied. III. Dependency and Indemnity Compensation under 38 C.F.R. § 1318 VA will pay Dependency and Indemnity Compensation pursuant to 38 U.S.C.A. § 1318 if the Veteran's death was not the result of willful misconduct and, at the time of death, any one of the three following circumstances existed: 1) the Veteran was receiving or entitled to receive compensation for service-connected disability that was rated by VA as 100 percent disabling for at least 10 years immediately preceding death; 2) the Veteran had been rated 100 percent disabled since release from active duty and for at least five years immediately preceding death; or 3) the Veteran was rated as 100 percent disabled for a continuous period of not less than one year immediately preceding death and was a former prisoner of war who died after September 30, 1999. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. The evidence of record does not demonstrate that the Veteran was a prisoner of war. Service connection was not in effect for any of the Veteran's disorders for the period immediately after release from active duty in July 1956. The Veteran was service-connected for bipolar disorder with a 100 percent evaluation, effective March 27, 1997. However, the Veteran died in August 2006, and as a result the Veteran was not 100 percent disabled for at least 10 years immediately preceding his death. These facts are not in dispute, and based on the foregoing, the Board finds that the Veteran was not in receipt of, or entitled to receive, compensation at the total disability level continuously for 10 years immediately preceding his death or for a period of not less than five years from the date of his discharge or release from active duty. Finally, the Appellant did not assert and the evidence did not support a finding that the Veteran was a former prisoner of war. The law is dispositive, and this claim must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board sympathizes with the Appellant's circumstances, but is obligated to decide cases based on the law and the evidence before it. Harvey v. Brown, 6 Vet. App. 416, 425 (1994)(holding that the Board is bound by the law and is without authority to grant benefits on an equitable basis). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation based on the provisions of 38 U.S.C.A. § 1318 is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs