Citation Nr: 1751702 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 16-36 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from November 1941 to August 1945. He died in November 1978. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2017, the appellant testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. At the videoconference hearing, the appellant's representative sought, and was granted, a 60-day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2017). In September 2017, additional evidence was received from the appellant's representative. The representative also requested an extension of time to submit evidence "if additional information [was] required to render a decision." The Board notes, however, that the appellant has been advised on multiple occasions, including at the July 2017 Board hearing, of the evidence and information needed to substantiate her claim for benefits. VA's duty to notify and assist, which will be discussed in greater detail below, does not extend to preadjudicating evidence. See Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (explaining that VA's duty to notify deals with evidence gathering, not the analysis of already gathered evidence; therefore, there is no legal obligation to rule on the probative value of information and evidence presented in connection with a claim prior to rendering a decision on the merits of the claim itself). Accordingly, the representative's request for an extension of time is denied and the Board will proceed to an adjudication of the claim on its merits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran died in November 1978, due to probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease listed as a condition contributing to the cause of death. 2. At the time of the Veteran's death, service connection had not been established for any disabilities. 3. The preponderance of the competent and probative medical evidence of record shows that the Veteran's probable cardiac asystole, coronary insufficiency, coronary arteriosclerosis, and chronic obstructive lung disease were not present during service or for many years afterward, and were not etiologically related to military service, including the malaria he contracted in, and was treated for, in service. 4. The Veteran was not evaluated as totally disabled for ten continuous years immediately preceding his death; he was not evaluated as totally disabled continuously from the date of separation from service and for a period of not less than five years immediately preceding his death; and he was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C. § 1101, 1110, 1112, 1310 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.311, 3.312 (2017). 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in a letter sent to the appellant in November 2013. The Board notes that the November 2013 also provided the appellant with notice compliant with Hupp v. Nicholson, 21 Vet. App. 342 (2007). Additionally, in July 2017, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2017 hearing, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board may proceed to adjudicate the claim based on the current record. The Board also finds VA has satisfied its duty to assist the appellant in the development of the claims. VA has obtained all identified and available service and post-service treatment records for the Veteran. The appellant reported that the Veteran was treated prior to his death by a private cardiologist and at a private medical center, and possibly at VA facilities. Review of the record shows that VA has attempted to obtain such treatment records for the Veteran, however, further attempts would be futile as these records are unavailable. Additionally, a VA opinion was obtained in May 2016, which, as described below, is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and neither she nor her representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Also, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to her claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Cause of Death To prevail on the issue of entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as 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. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312 (c). The appellant herein seeks service connection for the cause of the Veteran's death, based on a theory that his in-service malaria caused or substantially contributed to his death. In a claim dated in October 2013, the appellant reported that the Veteran was diagnosed with malaria in service, and that the Veteran's family told her that they almost lost him during service due to malaria attacks. The appellant indicated that after the Veteran's separation from service he continued to have attacks including fevers and night sweats which would soak the linens. The appellant believed that the Veteran's malaria was a contributing factor in his death. She indicated that the Veteran may have been seen at the Sepulveda VA Medical Center (VAMC) since he was working on the construction of that facility in the late 1940s. Service treatment records (STRs) show the Veteran was treated for malaria in service. In April 1943, his diagnosis was malarial fever, tertian, recurrent. In October 1943, the diagnosis was malarial fever, tertian, recurrent, plasmodium vivax demonstrated, and an ECG at that time was assessed as normal. A death certificate lists the Veteran's cause of death as probable cardiac asystole, due to increasing coronary insufficiency, due to coronary arteriosclerosis, with chronic obstructive lung disease as a condition contributing to the cause of death. In a VA medical opinion obtained in May 2016, the examiner opined that it was less likely than not that the Veteran's in-service malaria caused or substantially and/or materially contributed to his death. The examiner noted that the Veteran contracted malaria during his World War II service, and that his death certificate documented the cause of death as cardiac asystole with increasing coronary insufficiency and coronary arteriosclerosis with chronic obstructive lung disease as a condition contributing to death, and further documented that a cardiac catheterization had been done documenting coronary arteriosclerosis. The examiner noted that medical records from Dr. Oblath, the Hines and West Los Angeles VAMCs, and the Providence Tarzana Regional Medical Center were not available for review, but that it was nonetheless less likely than not that the P. vivax malaria contracted by the Veteran in 1943 substantially or materially contributed to his death in 1978, from coronary disease complicated by COPD, some 35 or more years after the initial infection. The examiner acknowledged that malarial infections could cause death, but explained that, according to Harrison's Textbook of Internal Medicine, almost all deaths from malaria are caused by P. falciparum, and not P. vivax as in this Veteran's case, and almost all deaths occur in or around the acute infectious phase, and not 35 or more years later. The examiner opined that there was no evidence to support a chronic cardiac condition such as was seen in this Veteran as having been caused by a P. vivax malaria infection 35 or more years earlier. The examiner also noted that pulmonary complications such as adult respiratory distress syndrome (ARDS) could occur as result of malaria, but were more likely in adults with severe falciparum malaria, not P. vivax as in this Veteran's case and not 35 or more years later. The examiner stated that episodes of relapse could occur in malaria, but indicated these relapses typically occurred within months. The examiner also noted that a relapse refers to reactivation of liver hypnozoites weeks to months after the initial treatment and thus represents failure of hypnozoiticidal treatment (if administered), while reinfection refers to new infection transmitted via mosquito exposure." The examiner opined that if in this case, recrudescence and/or relapse were to have occurred, it would be less likely than not that this would impact the Veteran's clinical status 35 or more years later. The examiner also stated that if the Veteran were to have been re-infected with malaria around or near the time of his death in 1978, this would be unassociated to the non-falciparum malarial infection he acquired in 1943. At the July 2017 Board hearing, the appellant testified that after service the Veteran suffered complications of malaria including night sweats and constant pain every night. She testified that the Veteran started seeing a private cardiologist a couple of years before he passed and that the cardiologist said that the Veteran's diagnosis could be a result of malaria. She testified that the Veteran never went to VA for treatment and only got private care, and that she had contacted the doctor to try to get the records, but he had passed away and the records were shredded. As noted above, the appellant contends that the Veteran's cause of death was related to the malaria he contracted in service. In support of her claim, the appellant recently provided an email dated in September 2017 from a private physician, Dr. G.D.G., who opined that "[t]he attached papers establish that there is a link between malaria and cardiovascular and/or coronary artery/cardiac disease", but Dr. G.D.G. also noted that on review there was no evidence that the decedent had malaria while in service from service medical records, and that the "evidence" appeared solely to be the comments of the VA physician presumably based on the decedents/patients verbal history, with no medical record of treatment or presence of condition. Also submitted in September 2017 was a duplicate copy of an excerpt from the Journal of Infectious Diseases, titled "Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia". In reviewing the opinion from Dr. G.D.G., the Board acknowledges that this provides a positive association between the Veteran's cause of death and malaria. Also of record, however, is the medical opinion from a VA physician regarding whether the Veteran's in-service malaria caused or contributed to his death from coronary insufficiency due to coronary arteriosclerosis, with chronic obstructive lung disease. Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the medical opinions, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board is mindful that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Court has held that, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that the VA physician's opinion of May 2016 is the most probative and persuasive opinion of record. In that regard, the May 2016 VA opinion included a review of the claims folder, citations to specific relevant items in the claims folder and to pertinent external medical reference tools and literatures, and supporting rationale. The May 2016 VA opinion is also well-reasoned and based on an objective, independent review of the relevant evidence. Thus, the May 2016 VA opinion has the proper factual foundation and is entitled to more probative weight. See Elkins v. Brown, supra. On the other hand, the Board finds that the opinion from Dr. G.D.G. is basically conclusory and without supporting rationale. While Dr. G.D.G. refers to "attached papers," the only paper attached to his medical opinion was an excerpt from the Journal of Infectious Diseases, titled "Lung Injury in Uncomplicated and Severe Falciparum Malaria: A Longitudinal Study in Papua, Indonesia." The Board finds that this excerpt alone does not address this Veteran's specific history, particularly as Dr. G.D.G. does not explain how the attached excerpt provides support for his medical opinion. Thus, the Board concludes that the May 2016 VA examiner's opinion outweighs and is more persuasive than Dr. G.D.G.'s opinion, and provides the most probative evidence of record with respect to the Veteran's diagnosed cause of death and the etiology of such. Based on the May 2016 VA examiner's opinion, the Board finds that the Veteran's cause of death is not related to malaria, which he contracted in and was treated for in service. The Board is sympathetic to the appellant's loss of her husband, but may not go beyond the factual and competent medical evidence presented in this claim to provide a favorable determination. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Entitlement to DIC under 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a "deceased veteran" in the same manner as if the death were service-connected. A "deceased veteran" for purposes of this provision is a veteran who dies not as the result of his/her own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability(ies) rated totally disabling. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The service-connected disability(ies) must have been (1) continuously rated totally disabling for a period of 10 or more years immediately preceding the veteran's death, or (2) continuously rated totally disabling since the Veteran's discharge or other release from active duty and for at least 5 years immediately preceding death; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. Id. The term "entitled to receive" means that, at the time of death, the veteran had service-connected disability(ies) rated totally disabling by VA but was not receiving compensation for reasons specified in the regulations which are not relevant here, or because the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). Claims under 38 U.S.C. § 1318 will be adjudicated based on decisions rendered during the veteran's lifetime. 38 C.F.R. § 20.1106. Thus, the only possible ways for the appellant to prevail on a claim for benefits under 38 U.S.C. § 1318 would be: (1) meeting the statutory duration requirements for a total disability rating at the time of death; or (2) showing that such requirements would have been met but for CUE in a decision on a claim filed during the veteran's lifetime. Based on the evidence of record, the Board finds that the statutory requirements for an award of DIC benefits have not been met on any basis. The Veteran was discharged from service in August 1945 and died in November 1978. At the time of his death, service connection was not in effect for any conditions. Thus, the evidence of record fails to show that he was rated as totally disabled for a period of at least 5 years from the date of her discharge or for at least 10 years preceding his death. The evidence also fails to show, and the appellant does not assert, that the Veteran was a prisoner of war. Accordingly, the appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. The Board need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating for the appropriate period of time, nor must it review whether a rating in effect prior to death could or should have been higher so as to warrant the award of DIC benefits under 38 U.S.C. § 1318, also known as "hypothetical entitlement." Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008); Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); see also 38 C.F.R. § 3.22. The January 21, 2000, finalization of VA's modification of 38 C.F.R. § 3.22 prevented any consideration of such claims. Id. Also, the appellant has not alleged CUE in any prior rating decision. As the law is dispositive of the claim for entitlement to DIC benefits under 38 U.S.C. § 1318, it must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs