Citation Nr: 1802011 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-03 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to 38 U.S.C. § 1318 Dependency and Indemnity Compensation (DIC), to include entitlement to DIC on the basis of clear and unmistakable error (CUE). 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: William N. Benjamin, Jr., Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The late Veteran served on active duty from January 1944 to February 1946. The appellant is his surviving widow. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Pension Management Center of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin. Jurisdiction over the Veteran's claims-file currently resides with the RO in Nashville, Tennessee. In February 2016, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. This case was previously before the Board in June 2016, when it was remanded for additional development of the evidentiary record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to 38 U.S.C. § 1318 DIC, to include on the basis of CUE, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's death certificate lists the cause of death as chronic obstructive pulmonary disease (COPD), with lung cancer and chronic respiratory failure as other significant conditions contributing to death but not resulting in the underlying cause. No other condition was listed as contributing to death, and no other condition is otherwise shown to have contributed to the death. 2. At the time of the Veteran's death, his VA-recognized service-connected disabilities were (a) a gunshot wound to the right foot, muscle group X, rated 30 percent disabling; (b) a gunshot wound to the left foot, muscle group X, rated 30 percent disabling; (c) cold weather injury of the right foot, rated 30 percent disabling; (d) cold weather injury of the left foot, rated 30 percent disabling; and (e) osteomyelitis, rated noncompensably disabling. 3. The diagnosed pathologies that caused the Veteran's death have been medically attributed to a history of cigarette smoking; they are not otherwise shown to have had onset or to have been causally related to his military service, and they are not shown to have been caused or aggravated by his service-connected disabilities. 4. The competent evidence does not establish that a service-connected disability was either the principal or a contributory cause of the Veteran's death, or that his death resulted from any disability incurred in or aggravated by service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307. 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for the Cause of the Veteran's Death Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the appellant's record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that each item of evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The appellant seeks to establish that the Veteran's death was caused by a service-connected disability. The Veteran's death certificate indicates that the Veteran died in August 2011 from COPD. The death certificate lists lung cancer and chronic respiratory failure as other significant conditions contributing to death but not resulting in the underlying cause. No other condition was listed as contributing to death. At the time of the Veteran's death, service-connection was in effect for (1) a gunshot wound to the right foot, muscle group X, rated 30 percent disabling; (2) a gunshot wound to the left foot, muscle group X, rated 30 percent disabling; (3) cold weather injury of the right foot, rated 30 percent disabling; (4) cold weather injury of the left foot, rated 30 percent disabling; and (5) osteomyelitis, rated noncompensably disabling. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310. Dependency and indemnity compensation may be awarded to a Veteran's surviving spouse on the basis of a service-connected or compensable disability under 38 U.S.C. § 1310 and 38 C.F.R. § 3.312. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal or primary cause of death, or that it was a contributory cause of death under 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to constitute a contributory cause, 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." Id. 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. The Board must also determine whether the Veteran had a disability incurred in or aggravated by service that was either the principal, or primary cause of death, or that it was a contributory cause of death. In its review of the record, the Board must determine whether the evidence supports the claim or if it is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). Certain chronic diseases, including lung cancer (as featuring malignant tumors), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection may be granted, on a secondary basis, for a disability that is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter scenario, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The appellant contends that the Veteran's decades of poor circulation in his feet due to his service-connected frostbite residuals and gunshot wounds caused him to suffer from generally poor circulation and that such caused or contributed to his terminal COPD, lung cancer, and chronic respiratory failure. The Board's June 2016 remand of this issue directed that a VA medical opinion be obtained to address the medical question raised by this contention. The resulting October 2017 VA medical opinion (available for review in VA's Legacy Content Manager / Virtual VA system) offered by a medical doctor concludes that "[t]here is no medical evidence that the Veteran's service connected frostbite residuals and gunshot wounds to the feet and resulting poor circulation contributed substantially or materially, caused, or aided or lent assistance to the [cause] of the Veteran's death (COPD)." (The Board observes that a typographical error led to the opinion referring to "the result of the Veteran's death," but it is unambiguously clear from the opinion that "the cause of the Veteran's death" was the intended reference.) The VA provider clearly establishes that the frostbite and gunshot wound residuals to the feet "are separate and distinct conditions from that noted for his cause of death." The VA provider explains: "The overwhelming cause of the veteran's COPD and lung cancer, with resulting respiratory failure, was his noted history of >70 pk/yr history of smoking documented in a pulmonary note by Dr. Green on 4/5/2010." (The Board notes that the Veteran's self-reported smoking history is documented in his VA medical records.) The VA provider cites "Up To Date" medical literature research to support the finding that the Veteran's smoking history was the "overwhelming cause" of the COPD and lung cancer with resulting respiratory failure. The VA examiner cites that "[n]umerous epidemiologic studies indicate that tobacco smoking is overwhelmingly the most important risk factor for COPD," and discusses examples. The VA examiner additionally cites the research-established medical principle "[t]he primary risk factor for the development of lung cancer is cigarette smoking, which is estimated to account for approximately 90 percent of all lung cancers." The Board finds that the October 2017 VA medical opinion is competent evidence informed by the pertinent facts and presented with a well-explained rationale on this matter. Accordingly, the Board finds the opinion to be probative. The Board finds that the October 2017 VA medical opinion probatively indicates that the Veteran's service-connected foot disabilities were not contributory causes of the Veteran's death as contemplated by 38 C.F.R. § 3.312. The Board finds that the October 2017 VA medical opinion also probatively indicates that the Veteran's service-connected foot disabilities neither caused nor aggravated the Veteran's terminal respiratory disabilities as contemplated by the requirements to establish service connection under 38 C.F.R. § 3.310. In this regard, the Board finds that the VA provider's finding that it is not medically supportable to conclude that the Veteran's service-connected foot disabilities "contributed substantially or materially, caused, or aided or lent assistance to" the Veteran's pertinent terminal respiratory disabilities (those "noted for his cause of death") reasonably establishes that the pertinent respiratory disabilities were neither caused nor aggravated by the service-connected foot disabilities. The Court has indicated that statements that a claimed disability is "not due to," "not caused by," or "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). See Allen, 7 Vet. App. at 449. The Board finds that the October 2017 VA provider's opinion adequately indicates that the service-connected disabilities did not aggravate the pertinent lung disabilities by stating that the foot disabilities did not contribute, aid, or lend assistance to the pertinent lung disabilities. The Board finds that the October 2017 VA medical opinion persuasively explains that the Veteran's service-connected foot disabilities are not medically indicated to have caused or aggravated his death (or the respiratory pathologies that caused his death). The Board finds that the VA medical opinion is generally consistent with the rest of the medical evidence of record, and persuasively explains a rationale for the conclusions presented. The Board finds no contrary medical opinion of record of comparable probative value. As the October 2017 VA medical opinion is not contradicted by any comparably probative competent evidence, the Board finds that the October 2017 VA medical opinion is persuasive in finding that the Veteran's service-connected disabilities of the feet (1) did not contribute substantially or materially to the cause of the Veteran's death, and (2) did not cause or aggravate the Veteran's terminal lung disabilities. Accordingly, the Board must conclude that (1) the Veteran's service-connected disabilities of the feet were not principal or contributory causes of the Veteran's death as contemplated under 38 C.F.R. § 3.312, and (2) the Veteran's death-causing respiratory disabilities were not service-connected disabilities secondary to the foot disabilities under 38 C.F.R. § 3.310. Therefore, service connection for the cause of the Veteran's death cannot be granted on these bases. This case presents no contention or evidence indicating that the Veteran's only other service-connected disability, osteomyelitis rated non-compensably disabling, was in any manner a principal or contributory cause of the Veteran's death. Therefore, service connection for the cause of the Veteran's death cannot be granted on this basis. None of the Veteran's established service-connected disabilities present a basis for a grant of service connection for the cause of the Veteran's death under 38 C.F.R. § 3.312. Furthermore, this case presents no contention or evidence indicating that the Veteran's shown causes of death (the respiratory disabilities identified on the death certificate) were caused or aggravated by the Veteran's osteomyelitis (his only service-connected disability aside from the above-discussed disabilities of the feet). Therefore, secondary service connection cannot be established under 38 C.F.R. § 3.310 for any of the terminal respiratory disabilities that caused the Veteran's death. To the extent that the Veteran's terminal respiratory disabilities have been medically attributed to his history of cigarette smoking, the Board notes that the provisions of 38 U.S.C. § 1103 and 38 C.F.R. § 3.300 prevent a disability from being recognized as service-connected on the basis that it is attributable to the use of tobacco products in service. As such, to the extent that the appellant may claim, or the record may suggest, that the Veteran's cause of death was related to smoking in service, service connection cannot be warranted on this basis. This case otherwise presents no contention or evidence indicating that the Veteran's shown causes of death (the respiratory disabilities identified on the death certificate) had onset during or were otherwise caused or aggravated by the Veteran's military service. Therefore, direct service connection cannot be established under 38 C.F.R. § 3.303 for any of the terminal respiratory disabilities that caused the Veteran's death. There is no evidence or contention suggesting that the Veteran's lung cancer was diagnosed or otherwise manifested to a compensable degree within a year of the Veteran's separation from service. Therefore, service connection cannot be established under 38 C.F.R. § 3.307. The Board accordingly determines that the Veteran's terminal disabilities (COPD, lung cancer, and respiratory failure) cannot be considered to have been service-connected disabilities for the purposes of adjudicating the claim of entitlement to service connection for the cause of the Veteran's death. Finally, this case presents no contention or evidence indicating that any other disability was a cause of the Veteran's death aside from the respiratory disabilities identified on the Veteran's death certificate and discussed above. Therefore, consideration of entitlement to service connection on the basis of another disability (aside from those discussed in the analysis above) is not warranted in this case. The Board acknowledges the appellant's expressed belief that her husband's death was due to a service-connected disability; however, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, identifying the diagnostic nature and etiology of the cause of the Veteran's death, falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377. For these reasons, the record does not support a finding that the Veteran's death was causally linked to any service-connected disabilities. Service connection may not be based on a resort to speculation or mere possibility. See 38 C.F.R. § 3.102. The probative October 2017 VA medical opinion indicates that the appellant's suggestions of a possible etiological link between the Veteran's service-connected foot disabilities and his terminal respiratory disabilities are not supported by principles of medical knowledge. There is no medical or scientific evidence of significant probative value in this case that shows that the Veteran's service-connected disabilities included any principal or contributory cause of the Veteran's death. No cause of the Veteran's death is shown to be a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against an award of entitlement to service connection for the cause of the Veteran's death. In summary, the competent and probative evidence of record does not show that the Veteran's death was in any way related to his active duty service, including as secondary to his established service-connected disabilities. The most probative competent evidence of record weighs against finding that a service-connected disability (or a disability that warranted service connection) was a cause of his death. In the absence of a showing that a disability incurred in or aggravated by service was either the principal or primary cause of death, or that it was a contributory cause of death, service connection for the cause of the Veteran's death is not warranted. The Board is very sympathetic to the appellant concerning the loss of her husband, the Veteran, but for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. REMAND The Board is concerned that issuing a final Board decision on the DIC issue remaining on appeal at this time, when the appellant has not had the opportunity to appeal the quite recent denial of inextricably intertwined CUE claims, could be unduly prejudicial to the appellant in this matter. As discussed below, the appellant's representative expressly described the pertinent CUE claims to the Board during the February 2016 hearing as the "strongest" aspect of the appellant's argument for the DIC claim before the Board on appeal. 38 U.S.C. § 1318 provides, generally, that VA shall pay DIC to the surviving spouse of a deceased veteran when the veteran dies and he was in receipt of or entitled to receive compensation at the time of death for a service-connected disability rated totally disabling, if the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death. 38 U.S.C. § 1318(a), (b)(1). In the instant case, the veteran was in receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) from February 11, 2002, a period of less than 10 years immediately preceding his death in August 2011. The appellant argues that the Veteran was entitled to receive TDIU for a period of 10 or more years immediately preceding his death on the basis that prior final rating decisions involved error. Specifically, at her February 2016 hearing, she raised a claim for CUE in the September 2002 rating decision that assigned an effective date of February 11, 2002, for the grant of the Veteran's TDIU. She contended that the February 11, 2002, filing by the Veteran was not a new claim for a TDIU, but was instead a notice of disagreement to the previous denial of a TDIU in May 2001. Therefore, she contends, the effective date for the claim for a TDIU would be prior to February 11, 2002. She also claimed that there was CUE in both the May 2001 and March 2006 rating decisions that denied service connection for the residuals of a cold injury. The CUE issues raised by the appellant were identified and discussed in the Board's June 2016 remand; they had not yet been adjudicated by the RO at that time. The Board determined that the CUE issues are inextricably intertwined with the current appeal, and that those issues must be adjudicated by the RO prior to appellate review of the issue of entitlement to DIC under the provisions of 38 U.S.C. § 1318. The Board's June 2016 remand instructions featured a directive to the RO to adjudicate the CUE claims and notify the appellant of her procedural and appellate rights on those issues. Subsequently, an October 2017 RO rating decision adjudicated and denied these two newer CUE claims, and notice of the decision along with procedural and appellate rights was sent to the appellant on November 21, 2017. The Board is mindful of the fact that the appellant's representative clearly explained at the February 2016 hearing that "our strongest case" in the appeal to establish entitlement to DIC benefits features the discussed CUE contentions, and the appellant's representative presented those CUE contentions to the Board for its consideration. The CUE claims are inextricably intertwined with the DIC claim on appeal, and have been expressly presented to the Board as central to the argument supporting the DIC claim on appeal. The Court has held that two issues are "inextricably intertwined" when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board is unable to adjudicate the CUE issues unless jurisdiction over those issues is conferred to the Board through the proper appellate process. As of this time, the appellant has not appealed the recent denial of the latest CUE claims to the Board, and the Board cannot take jurisdiction over them or to otherwise fully consider the appellant's associated arguments in support of her appeal for DIC under 38 U.S.C. § 1318. However, notice of the RO decisions on these CUE claims was only quite recently provided to the appellant, and she has the right to initiate an appeal of the denied CUE claims at any time within one year of that notice. 38 C.F.R. § 3.102. Only a small portion of the one year period has elapsed. Given the centrality of the intertwined CUE claims to the DIC claim currently on appeal and the clear indication from the appellant that pursuit of those claims is the "strongest" element of the argument supporting the DIC appeal before the Board, the Board finds that it is most appropriate to defer adjudication of the DIC issue on appeal until the appellant has had her due opportunity to exercise her right to appeal the denials of the CUE claims to the Board. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should defer further action on the claim remaining on appeal for DIC under 38 U.S.C. § 1318 until expiration or resolution of the appellate window on the October 2017 RO denials of the inextricably intertwined claims of CUE in September 2002, May 2001, and May 2006 RO rating decisions (or any development that allows a grant of the DIC claim on appeal). That is, adjudication of the DIC claim should proceed after either: (a) the appellant's opportunity to initiate an appeal of the denied intertwined CUE claims to the Board has expired (e.g., if no notice of disagreement has been filed within one year of the November 21, 2017 notice of those denials), (b) the appellant has perfected the intertwined CUE claims for appellate review by the Board, (c) the appellate window for the pertinent CUE claims have been otherwise sufficiently resolved (e.g., expiration of the period to file a substantive appeal following issuance of a statement of the case addressing the CUE claims), or (d) any development that allows a grant of the DIC claim remaining on appeal (e.g., a grant of a CUE claim that results in the conditions for DIC under 38 U.S.C. § 1318 being met). 2. Then, readjudicate the claim for DIC under 38 U.S.C. § 1318. If action remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs