Citation Nr: 1753688 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-10 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and Appellant's daughter ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to January 1968 and from January 1969 to March 1970. He died in April 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA), Regional Office (RO) that denied entitlement to service connection for the cause of the Veteran's death. The case was remanded in July 2012 for further development, and is again before the Board for further appellate proceedings. In July 2017, the appellant and the appellant's daughter testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran died in April 2008, and the original death certificate indicates the cause of death was lung disease, with no other contributing to his death. However, an amended death certificate showed coronary artery disease (CAD) as contributing to the Veteran's death. 2. At the time of the Veteran's death, service connection was in effect for schizophrenic reaction, paranoid type, chronic and anemia, hemolytic type, mild. 3. A disease incurred in or aggravated by service did not contribute substantially or materially to cause or accelerate the Veteran's death. 4. The Veteran was not continuously rated totally disabled due to service-connected disability for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death. CONCLUSIONS OF LAW 1. Lung disease and CAD were the causes of the Veteran's death, were not incurred in, or aggravated by service, and the criteria for service connection for the cause of the Veteran's death have not been satisfied. 38 U.S.C.A. §§ 1112, 1116, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2016). 2. The criteria for benefits under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 20.1106 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and duty to assist a claimant. The Board notes that in the context of a claim for cause of death benefits, specific notice requirements exist. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was provided with adequate notice in a May 2008 letter, prior to the July 2008 decision on appeal. VA has also fulfilled its duty to assist the appellant by making reasonable efforts to assist in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (a) (West 2014). The Veteran's service treatment records are of record as are various VA treatment records, to include records relating to his chemotherapy. The appellant has not identified any outstanding evidence, which could support her claim, and there is no evidence of any VA error in assisting in the procurement of records that could result in prejudice to the appellant. Overall, the Board finds that the evidence of record is sufficient to decide the appellant's claim. A VA opinion was obtained in September 2012. Upon review, the Board finds the September 2012 VA opinion, to be thorough, complete, and sufficient bases upon which to reach a decision on the appellant's claim. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). The appellant was provided a hearing before the undersigned VLJ in July 2017. As there is no allegation that either of the hearings provided to the appellant were deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). In conclusion, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the appellant's claim. II. Analysis Service Connection for the Cause of the Veteran's Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a Veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the Veteran's death. For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a Veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. VA may favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2014). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2016). The appellant contends that the Veteran's death was related to service or to his service-connected paranoid schizophrenia. She asserts that his schizophrenia lead to a heart problem that, according to the amended death certificate, had contributed to his death. She also noted that the Veteran had repeated bouts of pneumonia/bronchitis in service; she argues that these episodes contributed to the onset lung cancer. She also alleges that the Veteran developed a nicotine addiction in service that ultimately resulted in lung cancer. The original death certificate indicated that the Veteran died of lung cancer, with no other conditions contributing to his death. However, an amended death certificate showed coronary artery disease (CAD) as contributing to the Veteran's death. As noted, at the time of the Veteran's death, service connection was in effect for schizophrenic reaction, paranoid type, chronic, evaluated as 100 percent from October 31, 2006 and anemia, hemolytic type, mild evaluated as 0 percent from March 11, 1970. The Veteran's service treatment records revealed that he was seen and treated for pneumonia in 1965 and 1966. Post-service VA treatment records reveal that the Veteran was diagnosed with lung cancer and CAD. On a VA form 21-4138 in September 2008, the Veteran's son wrote that his father died because he became paranoid schizophrenic during his time in the military. He indicated that his father had heart problems while in the military and that it weakened his heart. He felt his father may have had lung cancer that was brought on by his disabilities in the army but ultimately his heart gave out. In April 2009, the Veteran's private physician submitted a letter in which the in-service episodes of pneumonia/bronchitis were noted, which suggested a causative link between the episodes and his fatal lung cancer. In September 2012, a medical opinion was rendered by a VA physician. The physician opined that the Veteran's death was less likely than not (less than 50 percent probability) related to service. A summary of the VA physician rationale indicated that the Veteran's treatment records list "tobacco dependence" as a working problem in 1998. However, there was no clear evidence that the Veteran suffered an actual tobacco addiction. He found no record of clinical evidence to establish an addiction. There was no record of drug-reinforced behavior, recurrent drug cravings, and no record of relapse of nicotine/tobacco use following a period of abstinence from a drug product. There was no evidence confirming that the Veteran's nicotine addiction was present at the time of his death was incurred in-service. Despite a note dated January 1970, which indicated that the Veteran, "began smoking 3-4 cigarettes per day 3 months ago" there was no other record supporting an established tobacco use disorder or nicotine dependence in-service. Neither the Veteran's separation examination report nor his medical evaluation board examination listed tobacco use disorders an active problem. Furthermore, he indicated that there were no medical records available from time of the Veteran's separation examination until 1998 (nearly 28 years) to establish an actual time of onset of nicotine dependence. The nicotine dependence, though likely contributed to the cause of his lung cancer, was not the sole cause. Medical records documented that the Veteran's family history was strong for primary cancers in his first-degree relatives. His father died of an ear-nose-throat/vestibular cancer, his mother died of colon cancer, and his brother died of lung cancer. This would imply a genetic predisposition for developing cancer within his lifetime, despite tobacco use. The various respiratory complaints of bronchitis referenced were more likely related to the Veteran's chronic obstructive pulmonary disease resulting from long-term tobacco use, as opposed to his primary lung cancer. The admission pneumonia, dated February 13, 2008, followed a period of radiation therapy/chemotherapy, and the diagnosis of recurrence of metastatic disease for his established lung cancer. His immune-compromised state following such medical treatment, and decompensated lung status, were the more likely reasons for the pneumonia in 2008. The examiner noted that there was no current literature etiologically linking schizophrenia to CAD. Lastly, the VA examiner stated that the review of the Veteran's service treatment records did not reveal any other in-service event, exposure history, or any other condition causally related to his active period of service that would relate to his CAD. In September 2012, the appellant's son submitted a letter. He wrote that his father could not give up smoking because of his nerves. He reported that his father told him he never smoked until he got into the Army. The Veteran's son felt that the smoking was the biggest contributor to his father's death. In August 2015 the appellant's daughter submitted a letter on behalf of the appellant. She wrote that while the Veteran was stationed in Korea he had a very bad bout with pneumonia, which almost killed him. She indicated that the Veteran did not start smoking until he was in the military. She wrote that the Veteran was sick a lot and in the wintertime, he always had bronchitis or pneumonia. In all of her memories, her father had always smoked and always had high blood pressure. In 2007, the Veteran was diagnosed with lung cancer. She indicated that her father would sneak cigarettes and smoke them until he was in the hospital. In July 2017, the appellant submitted an email correspondence discussing schizophrenia, smoking, lung cancer, and cardiovascular disease. The appellant was corresponding with a researcher (DK) from University of Maryland Psychiatric Research Center. DK indicated that cigarette smoking was more common in schizophrenia patients than in the general population. The researcher stated that she was not a medical doctor and did not have the specifics of the Veteran. Furthermore, she was not able to validate that lung cancer death risk were higher in schizophrenia patients as the literature was mixed on the risk of what caused the death. However, she stated cardiovascular disease risk was high in schizophrenia patients and tobacco use had been associated with increased cardiovascular related mortality. The researcher attached an abstract of the article "Cigarette Smoking and Mortality Risk in People with Schizophrenia." In October 2017, the appellant submitted a medical opinion from Dr. ER. He wrote that it was his medical opinion that schizophrenia was associated with increased mortality from cardiovascular disease. Also, in October 2017 the appellant submitted a medical document that indicated that the Veteran was enrolled in a 5 week multidisciplinary tobacco cessation program which began in October 1998. Upon careful review of the record, the Board has concluded that service connection for the cause of the Veteran's death is not warranted. As noted above, at the time of his death, the Veteran was in receipt of service connection for various disabilities; however, there is no competent evidence that any such disability, or any disability related to service, was the immediate or underlying cause of death, or that any such disability was etiologically related to the Veteran's death. The competent and probative evidence does not support a finding that the disabilities for which the Veteran was service-connected at the time of death, or any other event, disease or injury from service, either caused or contributed substantially or materially to the Veteran's cause of death. During the Veteran's lifetime, he was service-connected for schizophrenia and anemia. There is no indication in the death certificate, the terminal treatment records, or remaining medical evidence of record that these service-connected disabilities caused or contributed substantially or materially to the Veteran's death. The September 2012 VA examiner opined that the Veteran's death was less likely than not (less than 50 percent probability) related to service. The VA physician rationale indicates that there is no clear evidence that the Veteran suffered an actual tobacco addiction. There is no evidence confirming that the Veteran's nicotine addiction was present at the time of his death was incurred in-service. Neither the Veteran's separation examination report nor his medical evaluation board examination listed tobacco use disorders an active problem. Furthermore, the various respiratory complaints of bronchitis reference is more likely related to the Veteran's chronic obstructive pulmonary disease resulting from long-term tobacco use, as oppose to his primary lung cancer. He affirmed that the review of the Veteran's service treatment records does not reveal any other in-service event, exposure history, or any other condition that causally relates to his active period of service to his CAD. With respect to the October 2017 opinion by the private physician, he does not adequately support his opinion with a discussion of the underlying medical principles involved in reaching his conclusion. In this regard, the Board observes that in order to have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, Dr. ER concluded in this opinion that that schizophrenia was associated with increased mortality from cardiovascular disease, without addressing or taking into consideration the Veteran's specific circumstances. The Board therefore finds that this opinion lacks probative value. The July 2017 correspondence with a researcher DK indicates that she is not a medical doctor and does not have the specifics of the Veteran. This correspondence is a suggestive opinion that was already addressed by the September 2012 VA medical opinion. Again, this opinion did not address or take into consideration the Veteran's specific circumstances. The Board therefore finds that this opinion also lacks probative value. The Veteran's fatal lung cancer and CAD is not otherwise shown to have been caused or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The evidence indicates no event, injury, or disease in service that could have caused or aggravated his lung cancer or CAD. The Board also notes that because the record is silent for treatment or complaints for lung cancer and CAD for decades after service, it can be surmised under accepted case law that it is unlikely that these disabilities began in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it is proper to consider the Veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised). Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding of a causal relationship between the Veteran's fatal lung cancer and CAD to his service. Accordingly, service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board is sympathetic to the appellant's claim, and in denying, the claim does not intend to diminish the Veteran's service to his country. However, for the above reasons, the Board concludes that the preponderance of the evidence is against a finding that a disability incurred in or caused by service caused or contributed substantially or materially to the Veteran's death. As the preponderance of the evidence is against the claim of service connection for the Veteran's cause of death, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b). Compensation Under 38 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318 (West 2014), VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since a Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C.A. §1318(West 2014). In essence, the only possible way to prevail on a claim for benefits under 38 U.S.C.A. § 1318 (West 2014) are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision that were not previously considered by VA provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. See also 38 C.F.R. § 3.22 (2016). Under the current version of 38 C.F.R. § 3.22 (2016), DIC benefits may not be awarded based on "hypothetical entitlement" for ten years preceding the Veteran's death, no matter when the claim was filed. See Tarver v. Shinseki, 557 F.3d 1371, 1374-77 (Fed. Cir. 2009); Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008). Based on the evidence of record, the Board finds that the requirements of 38 U.S.C.A. § 1318 (West 2014) for an award of DIC benefits are not met. First, the Veteran did not meet the durational requirement for a total disability rating under 38 U.S.C.A. § 1318 (West 2014). The Veteran was discharged from service in March 1970. The Veteran was rated 100 percent-disabled effective March 11, 1970 to July 01, 1973 and from October 31, 2006 to his death. The Veteran died on April [REDACTED], 2008. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death; nor was his disability rated totally disabling continuously since his release from active duty and for a period of not less than five years immediately preceding death. In addition, the Veteran was not a former prisoner of war. Moreover, neither the Veteran (during his lifetime), nor the appellant has reasonably raised a motion of clear and unmistakable error in any final rating action on file. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (noting that any claim of CUE must be pled with specificity); Fugo v. Brown, 6 Vet. App. 40 (1993) (holding that a valid claim of CUE requires specific allegations of CUE). Finally, the Board has considered whether there were service department records in existence at the time of a prior VA decision which were not previously considered by VA and which provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively. In this regard, the Board has identified no such records that establish that the Veteran was entitled to a total service-connected disability rating for the requisite time period. Where the law is dispositive in a case, entitlement to the VA benefits sought must be denied due to the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, for the reasons discussed herein, the Appellant is not entitled to DIC benefits under 38 U.S.C.A. § 1318 (West 2014). In denying this claim, the Board does not wish in any way to diminish the Veteran's service, and is highly sympathetic to the appellant's claim including the harsh results caused by the required strict application of the law. However, the Board is without authority to grant the claim on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to service connection for the Veteran's cause of death is denied. Entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs