Citation Nr: 1601295 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 14-01 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) due to the cause of the Veteran's death. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran, who died in 2012, served on active duty from March 1957 to March 1960. The appellant is his surviving spouse. This case was previously before the Board of Veterans' Appeals (Board) in September 2015, when it was remanded for further development. Following the requested development, the PMC confirmed and continued the denials of entitlement to DIC and entitlement to accrued benefits. Thereafter, the case was returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in late 2012 due to congestive heart failure as a result of ischemic cardiomyopathy. 2. Other conditions contributing to the Veteran's death but not related to the underlying cause were aspiration pneumonia, chronic obstructive pulmonary disease (COPD), and noninsulin-dependent diabetes mellitus. 3. The fatal congestive heart failure and ischemic cardiomyopathy and the contributing conditions of aspiration pneumonia, COPD, and non-insulin dependent diabetes mellitus were first manifested many years after the Veteran's separation from the service, and the preponderance of the evidence is against a finding that any of those disorders are in related thereto. 4. At the time of the Veteran's death, an 80 percent combined disability rating was in effect for the following disorders: a bilateral hearing loss disability, evaluated as 60 percent disabling; adjustment disorder with depressed mood, evaluated as 30 percent disabling; and tinnitus, evaluated as 10 percent disabling. 5. The preponderance of the evidence is against a finding that any of the Veteran's service-connected disorders contributed significantly or materially to cause the Veteran's death. 6. At the time of his death, the Veteran was not entitled to periodic monetary benefits under existing ratings or decisions which were due and unpaid, nor was he entitled to periodic monetary benefits based on evidence in the file at the date of his death, which were due and unpaid. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC have not been met. 38 U.S.C.A. §§ 1310, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.312 (2015). 2. The criteria for the payment of accrued benefits have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5121 (West 2014); 38 C.F.R. §§ 3.159, 3.1000 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA's Duties to Notify and Assist Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the appellant in the development of her claims of entitlement to DIC and accrued benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). After reviewing the record, the Board finds that the VA has met that duty. After the claims were received, the PMC advised the appellant by letter of the criteria for DIC and accrued benefits and informed her of her and VA's respective responsibilities for obtaining relevant records and other evidence in support of her claims. Specifically, the appellant was informed of (1) the conditions for which the Veteran was service-connected at the time of death; (2) the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet App 342 (2007). The appellant was further advised that accrued benefits were based on existing ratings, decisions, or evidence in the Veteran's possession, but that the benefits had not been paid to the Veteran prior to his death. It was noted that they would be paid to a surviving spouse, child, or dependent parent of the Veteran. The VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, as well as records reflecting his post-service treatment by the VA. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). In this case, the Board finds that the record is full and complete and sufficient to make a just and equitable determination. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of her appeal. She has not identified any outstanding evidence which could support either of her claims; and there is no evidence of any VA error in notifying or assisting her that could result in prejudice to her or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims as noted by citations to "Vet. App.") The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56, 57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the Board first determines whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) A layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) The layperson is reporting a contemporaneous medical diagnosis, or; (3) Lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The appellant is competent to report her observations of the Veteran during after military service. For example, she is competent to report when the Veteran first experienced breathing problems or chest pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no evidence to suggest that she is competent by training or experience to diagnose any pathology causing those problems. The question of an etiologic relationship between an injury or disease and the development of a chronic, residual disorder involves a medical issue. Thus, the question of etiology in this case may not be competently addressed by lay evidence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, the appellant has not reported that the Veteran had a diagnosis in service of any fatal or contributing diagnoses in service, nor is there evidence of that the Veteran's symptoms supported a later diagnosis of an inservice disorder. Not only is congestive heart failure, ischemic cardiomyopathy, aspiration pneumonia, COPD, or non-insulin dependent diabetes mellitus uncorroborated by the evidence during the Veteran's service; it is contradicted by more contemporaneous, probative, and accurate evidence of record. Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). DIC The appellant contends that Veteran's fatal congestive heart failure and ischemic cardiomyopathy, as well as his aspiration pneumonia, COPD and non-insulin dependent diabetes mellitus were due, at least in part, to his exposure to Agent Orange during the Vietnam War. Therefore, she maintains that she is entitled to DIC due to the cause of the Veteran's death. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. DIC may be awarded to a Veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Id. Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, there must be competent evidence of the fatal disability; competent evidence of a disease or injury in service; and competent evidence of a nexus between the in-service injury or disease and the fatal disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For certain disabilities, such as cardiovascular disorders or diabetes mellitus, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the Veteran's discharge from service. 38 U.S.C.A. § 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may also be presumed for disabilities, such as ischemic heart disease and diabetes mellitus, when the VA finds them to be the result of inservice exposure to herbicides, such as Agent Orange. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.309(e) (2015). Veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii) (2015). Veterans who were otherwise exposed to such herbicides may also take advantage of those presumptive health effects. However, unlike Vietnam veterans, they are required to prove that they were, in fact, exposed to herbicides during their military service; that is , they do not have the benefit of a presumption of exposure as do Vietnam veterans. In addition, the applicable law and regulations permit service connection for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's death certificate shows that he died in late 2012 as a result of congestive heart failure due to ischemic cardiomyopathy. Other conditions contributing to the Veteran's death but not related to the underlying cause were aspiration pneumonia, COPD, and noninsulin-dependent diabetes mellitus. Thus, in order for the appellant to prevail, the evidence must establish that at least one of the fatal disabilities or contributing disabilities was related to the Veteran's military service. The Veteran's service medical records are negative for any complaints or clinical findings of congestive heart failure, ischemic cardiomyopathy, aspiration pneumonia, COPD, and/or noninsulin-dependent diabetes mellitus. A history of coronary artery disease, status post myocardial infarction with 4 vessel coronary artery bypass graft back to May 2000 was first noted during the Veteran's VA outpatient treatment in July 2003. The presence of hypertension and diabetes mellitus were also noted during that treatment. COPD was first reported during VA outpatient treatment in February 2005. Congestive heart failure was first noted during VA outpatient treatment in February 2011. Ischemic cardiomyopathy and aspiration pneumonia were not identified until shortly before the Veteran's death. All of the fatal and contributing disorders were first manifested many years after the Veteran's separation from service; and there is no competent evidence of record linking those disabilities directly to any disease or injury incurred in or aggravated by service. At the time of the Veteran's death, an 80 percent combined disability rating was in effect for the following disorders: a bilateral hearing loss disability, evaluated as 60 percent disabling; adjustment disorder with depressed mood, evaluated as 30 percent disabling; and tinnitus, evaluated as 10 percent disabling. However, there is no competent evidence that any of those disorders contributed significantly or materially to cause the Veteran's death. The preponderance of the evidence is against a finding that the Veteran's death was due to a disability or disabilities related to service. Thus, service connection for the cause of the Veteran's death is not warranted on a direct basis. The appellant's primary contention is that the Veteran's fatal disorders and contributing disorders were the result of his alleged exposure to Agent Orange in the Republic of Vietnam and that service connection may, therefore, be established on a presumptive basis. However, the evidence is negative for any findings that the Veteran ever served in the Republic of Vietnam. The Veteran did not report Vietnam service in his original application for VA benefits received in June 2007. In that section of the original application for benefits which asked him for details regarding his military service, and as to "[w]hen were you in Vietnam," the Veteran indicated "N/A" (not applicable). The evidence is also negative for any findings that the Veteran ever received any awards or decorations associated with such service. The Veteran's service medical treatment records show no entries generated by any unit in Vietnam, but instead indicate that the Veteran was stationed at an installation in Hawaii and at Fort Chaffee, Arkansas. Moreover, the Veteran did not serve during the Vietnam era which extended from August 5, 1964 to May 7, 1975. Vietnam era service could also include the period from February 28, 1961 to August 4, 1964, if the Veteran was actually stationed in Vietnam. However, he separated from the service almost a year before the earliest date of the Vietnam era. The appellant does not contend, and the evidence does not show, that the Veteran was otherwise exposed to Agent Orange. Accordingly, service connection for any of the fatal or contributing disorders is not warranted on the basis of exposure to Agent Orange. Because the competent evidence of record fails to show a link between the Veteran's death and his military service or between his death and any of his service-connected disabilities, the criteria for establishing entitlement to DIC based on the cause of the Veteran's death are not met. Accordingly, DIC is not warranted, and the appeal is denied. Although service connection for the cause of the Veteran's death is not warranted, DIC may still be awarded if, at the time of the Veteran's death, he was receiving, or was entitled to receive, compensation for a service-connected disability that was rated totally disabling. 38 U.S.C.A. § 1318(b) (West 2014); 38 C.F.R. § 3.22 (2015). In this case, however, the Veteran did not have total disability rating at the time of his death. Accordingly, DIC is not warranted on that basis. Accrued Benefits The appellant also contends that she is entitled to accrued benefits. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. An accrued benefit is a periodic monetary benefit authorized under laws administered by the VA to which a veteran was entitled at the time of his death under existing ratings or decisions, or those based on evidence in the file at the date of death, and due to the veteran but unpaid prior to the last date of entitlement. Accrued benefits will, upon the death of the veteran, be paid to the veteran's spouse, children, or dependent parent. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. In order for a claimant to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). Although before the Court of Appeals for Veterans Claims, the Veteran filed an appeal of an October 2012 Board decision which denied both higher ratings and an earlier effective date as to the assignment of an increased rating, the appeal was dismissed upon the Veteran's death. The Veteran did not have a claim pending for benefits at the time of his death, nor were there any benefits due to the Veteran but unpaid prior to the last date of entitlement. Thus, there is no legal basis for the payment of accrued benefits. The law is dispositive of the issue; and, therefore, the claim of entitlement to accrued benefits must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Additional Considerations In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the appellant's claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to DIC due to the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs