Citation Nr: 1754660 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 11-30 555 ) 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 VA burial benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1943 to April 1946 and from May 1947 to January 1971, and his decorations include the Combat Medics Badge. He died in in September 1999 and the appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 Administrative Decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a May 2012 Travel Board hearing. The case was previously before the Board in April 2014 and June 2017 when it was remanded for additional development. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was in effect for the following: hiatal hernia, hypertension, and bilateral hearing loss. 2. The Veteran died in September 1999, and the immediate cause of death was cardiac arrest due to or as a consequence of multi-organ failure, due to or as a consequence of small bowel fistula. Small bowel obstruction post-operative abdominal aortic aneurysmectomy (AAA) repair was listed as other significant condition contributing to death but not related to the stated cause of death. 3. Cardiac arrest, multi-organ failure, or small bowel fistula were not shown in service or for many years thereafter. 4. A service-connected disability did not cause or materially contribute to the Veteran's death. 5. The appellant's application for burial benefits was received in July 2010. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 2. The criteria for VA burial benefits have not been met. 38 U.S.C.A. §§ 2302-2308 (West 2014); 38 C.F.R. §§ 3.1600-3.1612 (2013); 3.1700-3.1713 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Cause of Death To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(2), (3). In this case, the death certificate reflects that the Veteran died in September 1999, and the immediate cause of death was cardiac arrest due to or as a consequence of multi-organ failure, due to or as a consequence of small bowel fistula. Small bowel obstruction post-operative abdominal aortic aneurysmectomy (AAA) repair was listed as other significant condition contributing to death but not related to the stated cause of death. An autopsy of the Veteran was not performed. At the time of the Veteran's death, service connection was in effect for the following: hiatal hernia, hypertension, and bilateral hearing loss. The appellant contends that the Veteran's service-connected disabilities could have interfered with his recovery, and ultimately contributed to cause his death. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The appellant does not contend, and the evidence does not show, that the Veteran suffered from cardiac arrest, multi-organ failure, or small bowel fistula, in service or for many years thereafter, and there is no competent evidence suggesting that cardiac arrest, multi-organ failure, or small bowel fistula arose in service or are otherwise related to military service. Indeed, service treatment records are negative for cardiac arrest, multi-organ failure, or small bowel fistula. The only competent evidence that directly addresses the matter of a nexus between the Veteran's death-causing cardiac arrest, multi-organ failure, and small bowel fistula, and his service connected disabilities is that of an April 2016 VA medical opinion and an August 2017 VA addendum opinion. In the April 2016 VA medical opinion, it was opined that the Veteran's service-connected disabilities were not an issue at the time of his death. It was further opined that the Veteran's death was a result from the AAA repair which was complicated and risky, consistent to morbidity and mortality with AAA repair. It was therefore concluded that the Veteran's service-connected disabilities did not cause or contribute to cause or hasten his death. Inasmuch as the April 2016 VA medical opinion did not address the appellant's specific theory of entitlement, in June 2017, the Board remanded this matter for an addendum opinion. In an August 2017 VA addendum opinion, it was noted that the Veteran's clinical picture was "complicated from surgery with sepsis (overwhelming infection from necrotizing fasciitis of surgical abdominal wound)." This lead to acute respiratory distress syndrome, shock to the liver and kidneys, eventually leading to the Veteran's passage. It was further indicated that the Veteran's service-connected disabilities were medically absent or quiet in his cause of death as reflected in his death certificate, or in his clinical records. As the opinion is by a medical professional competent to provide it, and explains the underlying rationale (citing to supporting factual data), it is highly probative evidence in this matter. There is no medical evidence to the contrary. The Board is sympathetic to the appellant's sincere belief that the Veteran's service-connected disabilities contributed in some way to cause the Veteran's death, particularly interfering with his recovery, and ultimately contributing to cause his death. Nonetheless, there is no indication in the record that he has received any medical training or has had medical expertise sufficient to render a competent medical opinion on the matter. In this regard, the relationship between the Veteran's service-connected disabilities and death from cardiac arrest, multi-organ failure, and small bowel fistula, is clearly not a matter capable of lay observation and requires medical expertise to determine. Accordingly, the appellant's lay opinion does not constitute competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). For the reasons set forth above, the Board affords the greatest probative weight to the April 2016 VA medical opinion and August 2017 VA addendum opinion, as such opinions were provided following a review of the claims file and included a rationale for the conclusions reached that is consistent with the clinical evidence of record. As it is the only competent medical evidence of record, the Board finds it persuasive. Accordingly, the Board finds that the preponderance of the evidence in this case is against a finding that the Veteran's service-connected disabilities caused or contributed to the Veteran's death. Based upon the foregoing, the claim for service connection for the cause of the Veteran's death is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Burial Benefits Effective July 17, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which include burial allowances for service-connected and nonservice-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the current regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653, 32,658. As this claim was pending at the time of the regulation change, the Board shall analyze the claim under both the old and the new regulations. Initially, and as discussed above, the Veteran's death was not due to a service-connected disability. Thus, the Board finds that only the nonservice-connected burial benefits regulations are for potential application and the claim for service-connected burial benefits is denied as a matter of law. See 38 C.F.R. § 3.1704. In this regard, under the previous regulations in the case of a nonservice-connected death, entitlement to burial benefits is based upon the following conditions: (1) at the time of death, the veteran was in receipt of pension or compensation; or, (2) the veteran had an original or reopened claim for either benefit pending at the time of the veteran's death, and in the case of a reopened claim there is sufficient prima facie evidence of record on the date of the veteran's death to show entitlement; or (3) the deceased was a veteran of any war or war discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and the body of the deceased is being held by a State. 38 U.S.C.A. § 2302(a) (West 2002); 38 C.F.R. § 3.1600(b) (2013). Burial benefits may also be paid if a person dies from nonservice-connected causes while "properly hospitalized" by VA (in a VA or non-VA facility). 38 C.F.R. § 3.1600(c) (2013). Finally, if a Veteran dies in route while traveling under proper prior authorization and at VA expense to or from a specified place for purpose of examination, treatment, or care, burial expenses will be allowed as though death had occurred while properly hospitalized by VA. 38 C.F.R. § 3.1605(a) (2013). The new regulation regarding nonservice-connected burial benefits is found at 38 C.F.R. § 3.1705. That regulation provides that a burial allowance is payable for a veteran who, on the date of his death: (1) was receiving VA pension or disability compensation; (2) would have been receiving disability compensation but for the receipt of military retired pay; or (3) had a pending claim for benefits, a claim to reopen a previously denied claim, or a claim involving substitution, any of which if processed to completion would result in a grant of benefits. 38 C.F.R. § 3.1705. As with the old regulation, burial allowance is also warranted for a veteran who died while hospitalized by VA or who died while traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care. 38 C.F.R. § 3.1706. An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran's body. 38 U.S.C.A. § 2304; 38 C.F.R. § 3.1703(a). This time limit also applies to claims for a plot or intermittent allowance under 38 C.F.R. § 3.1707. The two-year limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran's body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1703(a). As the current claim for burial benefits was filed in July 2010, more than two years after the Veteran's death in September 1999 and the incurrence of burial expenses, and the evidence reflects there is not a claim for service-connected burial allowance, or the cost of transporting the veteran's body to the place of burial, and is not buried in a national cemetery, the claim is not timely. The Board acknowledges and appreciates the Veteran's honorable military service and is sympathetic to the loss his family has suffered. The payment of burial benefits is strictly based on specific statutory and regulatory guidelines, which have not been met in this case. The Board has no authority to grant claims on an equitable basis but is constrained to follow specific provisions of law. See 38 U.S.C.A. § 7104(c). The critical facts in this case are not in dispute, and it is the law that is dispositive. Accordingly, the claim must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to VA burial benefits is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs