Citation Nr: 1703113 Decision Date: 02/02/17 Archive Date: 02/15/17 DOCKET NO. 05-40 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency, Indemnity and Compensation (DIC) for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151 (West 2014). REPRESENTATION Appellant represented by: Peter J. Sebekos, Attorney at Law ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from August 1951 to December 1951. The appellant is his widow. These matters initially came before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office in Buffalo, New York. In that decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for the cause of the Veteran's death. In February 2008, the Board denied the claim for service connection for the cause of the Veteran's death; and entitlement to DIC under the provisions of 38 U.S.C.A. § 1151. The appellant appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). In August 2009, the Court vacated the Board's February 2008 decision and remanded the case for readjudication in compliance with directives specified in an August 2009 Joint Motion filed by counsel for the Veteran and VA. In September 2011, the matters were remanded for additional development in response to the Joint Motion. In December 2014, the Board again remanded the matters for further development. While on remand, in October 2015, the appellant's representative raised a new theory of entitlement regarding the claim for DIC benefits under 38 U.S.C.A. § 1151. The appellant's representative also submitted additional evidence in support of this new theory, and the AOJ continued its denial of the claims in the June 2016 supplemental statement of the case. FINDINGS OF FACT 1. In January 2002, the Veteran was admitted to VA domiciliary unit at Bath VA Medical Center where he reported a history of GERD, complained of reflux and heartburn symptoms, but was not provided with the standard diagnostic testing; VA's failure to perform proper care prevented the Veteran from being able to prevent or identify at an early stage, his esophageal cancer, and prevent his untimely death. 2. The Veteran's esophageal cancer was at least as likely as not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care. 3. Sepsis, renal failure or esophageal cancer was not shown during service or until many years after service, and there is no competent evidence that relates these disabilities to active service. 4. The Veteran did not have a service-connected disability at the time of his death and a service connected disease or disability did not cause or contribute to the cause of his death. CONCLUSIONS OF LAW 1. The criteria for DIC benefits under 38 U.S.C.A. § 1151 for the Veteran's death are met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2016). 2. The criteria for DIC benefits based on service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). With respect to the claim of entitlement to DIC benefits under 38 U.S.C.A. § 1151, the Board is granting the claim. Thus, any deficiency in VA's compliance regarding the claim under 38 U.S.C.A. § 1151 is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. With respect to the claim for service connection for the Veteran's cause of death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). In this case, the Veteran was not service connected for any condition at the time of his death. The first two elements of Hupp notice are therefore not relevant to this case. Regarding the third element, VA's duty to notify was satisfied by the combination of letters dated in March 2005, March 2006, and September 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the duty to assist has been met. In this regard, the Veteran's VA treatment records have been obtained and associated with the file. Further, the documents requested by the Board in the December 2014 remand, were associated with the file. Thus, the Board finds that the AOJ complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Under the VCAA, VA is obliged to provide an examination or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (holding that the provisions of 38 U.S.C.A. § 5103A(d) concerning the duty to provide examinations or medical opinions in compensation claims were inapplicable to death benefit claims). In this case, VA opinions were not obtained regarding DIC based on service connection for cause of death. There is no evidence, lay or medical, that the Veteran's death may have been related to service and the Board is unable to discern any basis for linking the cause of death to service. A medical opinion is not required becase, there would be no theory of service connection for a medical expert to consider. Veteran was not service-connected for any disability at the time of his death, such opinion is not required. II. Merits of the claims Since the appellant initially filed her claim for DIC benefits in February 2005, she has set forth multiple arguments to establish her entitlement to DIC benefits, including that the Veteran's esophageal cancer was secondary to his lichen-planus rash for which he was compensated under 38 U.S.C.A. § 1151 or that VA-prescribed medication (Etodolac) which caused the lichen-planus disability contributed to the Veteran's death, or that the esophageal cancer resulted from a growth on the right side of his neck which was evaluated by VA treatment providers, but not biopsied, in July 2002. In October 2015, the appellant set forth a theory of entitlement that had not been raised at the time of the Board's February 2008 denial of the claim. The appellant now contends that the Veteran's death from esophageal cancer was a result of VA's failure to adequately treat the Veteran's GERD symptoms during an inpatient stay beginning in January 2002. For the reasons explained below, the Board finds that the evidence is at least in equipoise with regard to the appellant's most recent theory of entitlement for DIC benefits under 38 U.S.C.A. § 1151; however, service connection for cause of death due to service or service-connected disability, is not warranted. Laws and Regulations The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or 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. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996)(table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). Title 38, United States Code § 1151 provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or the proximate cause of additional disability or death was an event which was not reasonably foreseeable. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d), (d)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Factual Background The Veteran died in December 2004. His death certificate shows that the cause of death was sepsis, as a consequence of renal failure, as a consequence of esophageal cancer. The service treatment records are negative for any evidence of sepsis, renal failure or esophageal cancer. The Veteran was not service connected for any disability at the time of his death. VA treatment records show that the Veteran was admitted into the domiciliary ward at the VAMC in Bath, New York in January 2002. Upon admission to the Bath VAMC, in January 2002, the Veteran's history of GERD was noted. VA treatment records also show that during the course of the Veteran's domiciliary care, he was prescribed Etodolac, an anti-inflammatory drug, to treat non-service connected arthritis. Treatment records reflect that he suffered an allergic reaction, known as lichen-planus, to the drug. At the time of his death, the Veteran was in receipt of compensation for the lichen-planus reaction under the provisions of 38 U.S.C.A. § 1151. A VA treatment record dated in July 2002 note the Veteran's report of a growth on the right side of his neck that had been there for several days. Objective examination of the neck revealed a two-inch by two-inch right cervical furuncle. A subsequent July 2002 treatment record noted that the furuncle was resolving. A VA general medical note dated in July 2002 noted the Veteran's request for more Maalox as he experienced heart burn so severe that it woke him in his sleep twice per week. The July 2002 note also includes the Veteran's report that he used to take Zantac for 5 years but that "when I came here [Bath domiciliary], they wouldn't give me anymore. It helped my heartburn." The Veteran was discharged from the VA domiciliary later in July 2002 and the discharge summary indicates that he was discharged with a prescription for ranitidine (generic Zantac). An August 2002 VA outpatient treatment record noted the Veteran's report that he took ranitidine fairly regularly for his reflux but had not had any diagnostic testing such as an "upper GI." The August 2002 VA physician ordered the upper GI series (gastrointestinal X-rays). VA treatment records do not indicate that the Veteran was ever provided with an upper endoscopy. Treatment records dated in June 2003 note the Veteran's history of GERD as well as his report that he had had no gastrointestinal (GI) problems within the 30 days prior to the appointment. A September 2003 VA treatment note includes the Veteran's report that current medication was keeping his GERD under control, and that he denied any black or tarry stools, heartburn or indigestion, nausea or vomiting. He was educated on foods to avoid, to sleep at a 30 degree angle, and not to eat for a couple of hours prior to going to bed. A January 2004 VA treatment record noted the same GERD education regarding food and sleep habits and that on physical examination, the Veteran's neck was negative for masses and was supple. The neck was also negative for thyromegaly and lymphadenopathy. A March 2004 VA treatment record noted that the Veteran denied experiencing gastric distress. In late October 2004, the Veteran began to have difficulty keeping food down. In November 2004, he complained of hoarseness and VA treatment records indicate that he underwent oncology and pulmonary evaluations for mediastinal adenopathy. He reported a 30 pound weight loss over the previous five weeks, gradual worsening of dysphagia of solids, and one to two weeks of hoarseness. A chest computed tomography (CT) at that time showed an impression of massive mediastinal adenopathy and a pathologic right neck node. The VA physician also noted that the differential would include bronchogenic carcinoma of the lung, small cell carcinoma of the lung, and possibly esophageal tumor with mediastinal nodes or lymphoma. The physician noted that she would favor a lung primary given the Veteran's extensive smoking history, anorexia, weight loss, mild hyponatremia and that she thought small cell carcinoma was on the differential. In early November 2004, a VA physician reviewed the October 2004 CT scan results in comparison with an April 2004 CT scan report and noted that in the April 2004, the esophageal mass was not identified. The VA physician cautioned that there was less than optimal visualization of the region in the April 2004 CT because the examination began at the diaphragm. In mid-November 2004, the Veteran was admitted to the VA medical center and found to have a large mediastinal mass. The physician noted that he was not sure whether the mass was from the lung or GI tract. A fine needle biopsy was done but the malignant neoplasm could not be identified. The Veteran's death certificate reflects that the cancer was esophageal cancer. VA treatment records also reflect that ranitidine was listed as the active medication prescribed to treat the Veteran's GERD symptoms, from August 2002 until November 2004. A VA oncology note dated in late November 2004 included the first indication of a prescription proton pump inhibitor - omeprazole. VA medical opinions were obtained in January 2013, October 2013, and February 2014 to address the appellants initial contentions including whether the Veteran's lichen planus disability (for which he was compensated under 38 U.S.C.A. § 1151) led to his esophageal cancer and/or whether a nodule found on the right side of his neck in July 2002 should have been further evaluated. An opinion from Dr. D.D. is also of record addressing the appellant's contentions regarding the relationship between the Veteran's lichen planus disability and his esophageal cancer. None of these opinions addressed the subsequent contention that VA personnel should have diagnosed and treated the Veteran's GERD symptoms differently and/or sooner and that but for such failure, the Veteran would not have died from esophageal cancer in December 2004. As the Board is herein granting the claim for cause of death under 38 U.S.C.A. § 1151 based upon the most recent theory of entitlement, it will not recite all of the details of the VA opinions and private opinions regarding the other theories of entitlement under 38 U.S.C.A. § 1151. A private medical opinion dated in September 2015 is of record regarding the relationship between VA's treatment of the GERD symptoms and his death. The opinion is authored by Dr. S.T., a gastroenterologist who is also a professor of medicine at a public university and director of a gastroenterology and endoscopy practice. Following review of the Veteran's treatment records dating from 1999 to 2004, Dr. S.T. determined that VA medical personnel were negligent in their care of the Veteran's GERD symptoms and that due to such negligence, the Veteran suffered an untimely death. Dr. S.T. cited the guidelines for diagnosis and treatment of GERD, established by the American College of Gastroenterology, and explained that the standard of care for GERD, in effect from 1999 through 2004, called for an endoscopy as the first step in evaluating the severity of the GERD symptoms and that VA failed to provide such diagnostic testing. Dr. S.T. explained that a person over the age of 50 with GERD symptoms was at risk for esophageal adenocarcinoma, especially if he was overweight and smoked. Dr. S.T. opined that after the initial VA finding of GERD in January 2002, the Veteran should have been provided with an endoscopy to evaluate his symptoms so that appropriate treatment could have been applied to prevent, or identify at an early stage, adenocarcinoma, which in turn would have prevented the Veteran's untimely death. Dr. S.T. also cited a medical journal article entitled "Updated Guidelines for the Diagnosis and Treatment of Gastroesophageal Reflux Disease, The Practice Parameters Committee of the American College of Gastroenterology" to support his opinion. Dr. S.T. also indicated that the VA should have provided a prescription for the Veteran when he first reported GERD symptoms in January 2002. Dr. S.T. noted that this was especially so given the July 2002 VA treatment record which noted the Veteran's report that he had been taking Zantac for five years prior to the January 2002 admission. Dr. S.T. also indicated that although the Veteran was eventually prescribed the generic Zantac drug, ranitidine, in July or August 2002, such was not the appropriate care as it was an H-2 blocker and not a proton pump inhibitor. In response to the private opinion, the AOJ attempted to obtain a VA addendum opinion in November 2015. A document identified as a VA medical opinion dated in November 2015, is of record; however, the document does not actually contain a new opinion. Rather, it consists of a VA treatment record dated in October 2004 and the January 2013 VA opinion. Analysis Service Connection For the reasons explained below, the Board herein grants the claim for DIC benefits under 38 U.S.C.A. § 1151 but denies the claim for service connection for cause of death. The claim for DIC based on service connection for the cause of the Veteran's death is not moot despite the Board's decision to grant DIC under 38 U.S.C.A. § 1151; because if the Veteran's cause of death was also service-connected, the appellant could receive Chapter 23 burial benefits in excess of what she has already received. Chapter 23 burial benefits would not otherwise be available. See Mintz v. Brown, 6 Vet. App. 277 (1994) ("a claimant receiving a favorable ruling of "as if" service connection under [38 U.S.C.A. § 1151] would be entitled to any applicable benefits under Chapters 11 or 13. However, such a claimant would not be entitled to Chapter 23 burial benefits, including reimbursement of $1500 under 38 U.S.C. § 2307, unless service connection is established under a statutory provision other than 38 U.S.C. § 1151. Simply stated, a determination of "as if" service connection under 38 U.S.C. § 1151 may create entitlement to benefits under Chapters 11 and 13, but not to benefits under chapter 23."). Regarding the claim for service connection for the Veteran's cause of death, service treatment records are negative for any evidence of sepsis, renal failure, or esophageal cancer. Similarly, the records are negative for any malignant tumors. These disabilities did not manifest until more than 50 years after the Veteran's discharge from service, and there is no evidence that relates these disabilities to service; and it is not contended that they are related to service. All of the medical opinions of record, including those provided by the appellant, address the theories raised under 38 U.S.C.A. § 1151. In addition, the appellant and her attorney have not advanced any argument as to how the cause of death might be service connected. The Veteran was not service connected for any disability at the time of his death. As no connection has been shown between the Veteran's sepsis, renal failure, esophageal cancer and service, and he had no service-connected disabilities at death, service connection for cause of death due service-connected disability is not warranted. 38 U.S.C.A. § 1151 DIC benefits under 38 U.S.C.A. § 1151 are warranted on the basis that VA's treatment of the Veteran's GERD symptoms proximately caused his death. As the Board is herein granting the claim for benefits under 38 U.S.C.A. § 1151 under one theory of entitlement, the Board need not discuss the remaining theories of entitlement for DIC benefits under 38 U.S.C.A. § 1151 including whether VA's treatment with respect to the VA prescription of Etodolac and/or the resulting lichen planus disability (for which he was compensated under 38 U.S.C.A. § 1151), resulted in the Veteran's death. With respect to 38 U.S.C.A. § 1151, the private opinion from Dr. S.T. is probative as it is definitive, based on an accurate history and is supported by a sufficient rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board finds the opinion competent and credible given Dr. S.T.'s expertise in the field of gastroenterology and his review of the specific facts of this case. Further, the Board places a high probative value on Dr. S.T.'s opinion as the physician is shown to be an expert in the field of gastroenterology and reviewed all of the Veteran's medical records pertinent to this case as well as medical literature regarding the standards of care for GERD. The Board finds that the November 2015 VA addendum opinion is not adequate as it does not address Dr. S.T.'s September 2015 opinion, or otherwise indicate that Dr. S.T.'s opinion was reviewed. The record shows the Veteran had an additional disability of esophageal cancer, which was not identified prior to his VA treatment while domiciled at the VA in Bath beginning in January 2002. With respect to the diagnosis of esophageal cancer, the Board finds it significant that regardless of any initial difficulty identifying the Veteran's primary cancer, the physician who completed the Veteran's death certificate identified the cancer as esophageal cancer. Further the January 2013 and February 2014 VA examiners did not dispute that the Veteran had esophageal cancer when he died. The Board finds that the evidence is at least in equipoise as to whether VA's failure to adhere to the standards of care in 2002 proximately caused the Veteran's development of esophageal cancer which was found in 2004. Weighing in favor of the claim is Dr. S.T.'s opinion, which indicates that VA's failure to provide adequate diagnostic testing in conformity with the known standards of medical care deprived the Veteran of being able to prevent his cancer, or identify the beginning signs of the cancer. This evidence is particularly persuasive given Dr. S.T.'s note that medical literature present in 2002, indicated that individuals such as the Veteran, who were overweight and smoked were especially at risk for developing esophageal cancer. Weighing against the claim are the VA treatment records that indicate that the VA physicians eventually addressed the Veteran's symptoms and prescribed medication that seemed to control the Veteran's GERD symptoms (see e.g. September 2003 VA treatment record). VA cannot be found to be at fault for the natural progression of a disability unless VA failed to timely diagnose and/or properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (emphasis added). Based upon the positive opinion from Dr. S.T., the Board finds that VA's failure to properly treat the Veteran's GERD proximately caused the natural progress of the disability that led to the Veteran's esophageal cancer. Finally, the Veteran's esophageal cancer is listed on his death certificate as the cause of the renal failure and sepsis which directly caused his death. Thus, the Board is satisfied that the Veteran's esophageal cancer proximately caused his death. For these reasons, the Board finds that the circumstances in this case meet the specific criteria cited in 38 C.F.R. § 3.361(d)(1). In Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013), the Court held that § 1151 does not require a veteran's injury to be "directly" caused by the "actual provision" of medical care by VA personnel, but rather requires only "causal connection," which includes injuries that occur in a VA facility as a result of VA's negligence. Accordingly, it is at least as likely as not that the Veteran's esophageal cancer, which proximately caused his death, was incurred as a result of negligence or other fault on the part of VA in providing postoperative treatment. With resolution of doubt in the appellant's favor, the criteria for DIC benefits under 38 U.S.C.A. § 1151 for the cause of the Veteran's death are met and the claim must be granted. In summary, the appellant does not contend that the Veteran's disabilities were directly related to service, or that the Veteran had a service-connected disability that led to his death, but rather that the Veteran's death resulted from fault on the part of VA with respect to treatment and/or hospitalization. For the reasons explained above, the Board grants the claim for DIC benefits under 38 U.S.C.A. § 1151 but denies the claim for service connection for cause of death. ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151 for the Veteran's death is granted. Entitlement to DIC on the basis of service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs