Citation Nr: 1741972	
Decision Date: 09/25/17    Archive Date: 10/04/17

DOCKET NO.  13-33 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota


THE ISSUE

1.  Entitlement to basic eligibility for death pension benefits.

2.  Entitlement to dependency and indemnity compensation (DIC) for the Veteran's cause of death.   


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Bates, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1943 to February 1946.  The Appellant is his former spouse.

These matters come before the Board of Veterans' Appeals (Board), from a rating decision by the RO.  For purposes of increased clarity and brevity, the Board has articulated its reasons and bases for the order below in its Findings of Fact and Conclusions of Law.


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1.  The Appellant was born in January 1921, she married the Veteran in December 1939, and he died in June 1971. 

2.  Although the evidence supports that the Appellant was the Veteran's spouse at the time of his death and that she had lived with him continuously, she remarried in December 1974 and this marriage terminated in January 2001, due to the death of her new spouse.  

3.  Although the above findings regarding the Appellant's remarriage preclude her from meeting the statutory and regulatory criteria to reinstate eligibility as a surviving spouse for death pension benefits, she has satisfied the exception noted under 38 C.F.R. § 3.55(a)(3) to reinstate eligibility as a surviving spouse for DIC purposes.  See 38 U.S.C.A. §§ 101, 103, 503, 1121, 1310, 1311, 1541, 5107; 38 C.F.R. §§ 3.1, 3.50, 3.55, 3.102 (2016); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

4.  Competently diagnosing complex medical conditions and providing competent medical opinions regarding their etiologies, require specialized training.

5.  The Appellant and other lay witnesses of record are not licensed medical professionals and have not been shown to otherwise possess any requisite knowledge, skill, experience, training, or education to provide competent diagnoses of complex medical conditions, such as diabetes mellitus, cardiac arrhythmia, myocardial infarction, or generalized atherosclerosis; thus, they are not competent to provide expert opinion evidence regarding the issue on appeal.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

6.  The Appellant and other lay witnesses of record are only competent to report on that of which they have personal knowledge; whereas they did not serve on active duty with the Veteran they cannot provide competent evidence as to the incurrence of any disease, injury, or related event during his active duty service.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

7.  The Veteran's death certificate lists the disease or condition directly leading to death as a cardiac arrhythmia, the antecedent causes were listed as a recent myocardial infarction and generalized atherosclerosis, and diabetes mellitus was listed as another significant condition that contributed to death; this satisfies the first element to establish service connection for the Veteran's cause of death.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999).

8.  There is no competent evidence of an incurrence of any of the above listed disabilities during the Veteran's active duty service or an indication that it was caused by any related event, injury, or disease during active duty service; in the absence of an in-service incurrence of a claimed disease or injury, the criteria to establish service connection for the Veteran's cause of death have not been met.  See 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312 (2016; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to basic eligibility for death pension benefits is denied. 

Entitlement to DIC is denied.  




____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs