Citation Nr: 1736331	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-20 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

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

2.  Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and her friends


ATTORNEY FOR THE BOARD

S. Kalolwala, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1943 to June 1945.  He died in November 2009.  The appellant in this matter is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Jurisdiction over the Appellant's claim was subsequently transferred to the RO in St. Petersburg, Florida.

In July 2017, the Appellant appeared with her representative for a travel board hearing before the undersigned.  A transcript of that proceeding has been associated with the record.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran died on November [redacted], 2009; the immediate cause of death was colon cancer, no underlying cause was noted.

2.  A service-connected disability was neither the principal nor contributory cause of death.

3.  The Veteran was not in receipt of total service-connected disability rating for 10 continuous years immediately preceding his death.

CONCLUSIONS OF LAW

1.  The criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.313 (2016).  

2.  The criteria for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 are not met.  38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has considered the Veteran's claims and decided entitlement based on the evidence or record.  Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  







II. Service Connection

	Legal Principles

A surviving spouse of a qualified Veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC).  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  

To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or contributory cause of death.  A service-connected disability is considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  A service-connected disability is considered the contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death.  Id. 

Alternatively, a surviving spouse of a qualified Veteran is entitled to receive DIC benefits in the same manner as if the veteran's death were service connected when the death is not the result of the veteran's own willful misconduct and the Veteran was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22 (2016).

	Factual Background

A certificate of death reflects that the Veteran died in November 2009.  It further reflects that the immediate cause of death was colon cancer.  The Appellant is his surviving spouse.

At the time of the Veteran's death, service connection was in effect for residuals of cold injuries to the bilateral lower extremities, rated as 30 percent disabling, respectively, and residuals of scrotal eczema with dermatophytosis of the feet with pruritus, rated as 10 percent disabling.  A total disability rating by reason of individual unemployability (TDIU) was also in effect, effective November 22, 1999.  The Veteran did not have any pending claims at the time of his death.  

The relevant evidence of record consists of the Veteran's service treatment records (STRs), military personnel records (MPRs), post-service VA and private treatment records, and lay statements in support of the Appellant's claim. 

STRs are silent for any complaints of, treatment for or diagnosis of colon cancer or associated symptomatology.

Post-service medical treatment records from August 1950, to November 1999, reflect the Veteran's ongoing treatment for various ailments, including scrotal eczema, hypertension, degenerative arthritis, and arteriosclerotic heart disease.  The records do not reflect any complaints of, treatment for or diagnosis of colon cancer or associated symptomatology.  However, medical records dated in November 1990 reflect a family history of colon cancer.  The physician also noted that the Veteran may have had a "partial colectomy from ruptured bowel if not diverticulitis."

As mentioned, in July 2017, the Appellant appeared with her representative for a travel board hearing.  At that time, the Appellant indicated, in pertinent part, that the Veteran never complained of or sought treatment for colon cancer while in the military.  Rather, she indicated he first sought treatment for colon cancer in approximately 2007, although he felt "something was wrong" the year prior.  Due to his age, the Veteran initially "refused to take any treatment," i.e., chemotherapy; however, as the illness progressed, the Veteran reluctantly agreed to treatment.  The Appellant reported that the Veteran "took the chemo and [approximately] three months later he was dead."  The Appellant acknowledged that no physician has opined that the Veteran's colon cancer was caused by or otherwise etiologically related to military service.  

With respect to the DIC benefits, the Appellant indicated, in pertinent part, that the Veteran was only "13 days shy . . . between the date of death and the [TDIU] established in 1999."  The Appellant indicated that "the last check [she] received . . . in November 2009 was for the full amount . . . finishing up the 10th year . . . November to November . . . instead of going by the date."  Appellant further indicated that although VA initially tried to rescind the November 2009 award of benefits, they subsequently "sent [her] another check."  

	Analysis

As mentioned, at the time of the Veteran's death service connection was only in effect for residuals of cold injuries to the bilateral lower extremities and residuals of scrotal eczema with dermatophytosis of the feet with pruritus.  

After a thorough review of the record, the Board sympathetically finds that service connection is not warranted for the Veteran's claimed colon cancer, on either a direct or presumptive basis.  

In making this finding, the Board notes that STRs are silent for any complaints of, treatment for, or diagnosis of colon cancer or associated symptomatology.  Post-service medical treatment records are also silent for any complaints of, treatment for or diagnosis of colon cancer or associated symptomatology for more than five decades after service.  Rather, at the July 2017 hearing the Appellant indicated that the Veteran first sought treatment for colon cancer in approximately 2007.  The record does not reflect (nor does the evidence support) that the Veteran's colon cancer is caused by or otherwise etiologically related to service.  

Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Appellant's claim of service connection for Veteran's cause of death.

Next, the Board turns to the Appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318.  As a preliminary matter, the Board notes that the Appellant does not contend (nor does the record reflect) that the Veteran's disability was continuously rated totally disabling for a period of not less than five years from the date of the Veteran's discharge or that he was a former prisoner of war.  

As mentioned, TDIU was in effect at the time of the Veteran's death.  A July 2001 rating decision granted TDIU effective November 22, 1999.  The aforementioned rating decision was never challenged and became final.  See 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 20.1103.  

Here, the Board sympathetically finds that DIC benefits are not warranted because the Veteran's disability was not continuously rated totally disabling for a period of 10 or more years immediately preceding death.  A certificate of death reflects that the Veteran died on November [redacted], 2009.  Unfortunately, the Veteran was 13 days shy of reaching the statutory threshold.  See 38 U.S.C.A. § 1318.  The Board sympathizes with the Appellant's contentions; however, VA regulations operate on specific dates, rather than a general month, which is why the Veteran was given a specific effective date for his TDIU.  Where, as here, the law is dispositive, the claim must be denied because of the absence of legal merit.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against each of the Appellant's claims for service connection, that doctrine is not helpful to the Appellant.  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 the cause of the Veteran's death is denied.

Entitlement to DIC under 38 U.S.C.A. § 1318, is denied.



____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs