Citation Nr: 1806111 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-52 454 ) DATE ) ) On appeal from the Department of Veterans Affairs St. Paul Pension Management Center in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to nonservice-connected death pension (survivor's pension) benefits. 3. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1946 to November 1946, and died in July 2014. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The Veteran died in July 2014. The death certificate lists the immediate cause of death as electrolyte abnormality, unspecified, due to or as a consequence of end-stage renal disease, due to or as a consequence of hypertension. Aortic stenosis, coronary artery disease, and bladder cancer were listed as other significant conditions contributing to death but not resulting in the underlying cause. 2. At the time of his death, the Veteran was not service-connected for any disability. 3. An electrolyte abnormality, renal disease, hypertension, aortic stenosis, coronary artery disease, and bladder cancer are not attributable to service, and cardiovascular-renal disease was not manifest within one year of the Veteran's separation from service. 4. The Veteran did not possess the requisite service to qualify for VA death pension benefits for his surviving spouse. 5. The Veteran did not have any pending claims at the time of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.5, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 2. The criteria for nonservice-connected VA death pension benefits have not been met. 38 U.S.C. §§ 1521, 1541, 5107 (West 2012); 38 C.F.R. §§ 3.2, 3.3 (2017). 3. The criteria for accrued benefits have not been met. 38 U.S.C. § 5121 (West 2012); 38 C.F.R. § 3.1000 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching the decisions below, the Board considered the appellant's claims and decided entitlement based on the evidence. Neither the appellant nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection for the Cause of the Veteran's Death When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, a surviving spouse, child, or parent is generally entitled to DIC. 38 U.S.C. § 1310 (West 2012); 38 C.F.R. § 3.5(a) (2017); see generally 38 U.S.C. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries 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 diseases 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)(3). There are primary causes of death that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's certificate of death shows that he died in July 2014. The death certificate lists the immediate cause of death as electrolyte abnormality, unspecified, due to or as a consequence of end-stage renal disease, due to or as a consequence of hypertension. Aortic stenosis, coronary artery disease, and bladder cancer were listed as other significant conditions contributing to death but not resulting in the underlying cause. At the time of his death, the Veteran was not service-connected for any disability. Further, as there is no indication in the record that the Veteran was receiving VA compensation for a service-connected disability rated totally disabling, the provisions of 38 U.S.C. § 1318 do not apply to the appellant's claim. Thus, the questions to be answered are whether the Veteran's causes of death were causally or etiologically related to service. Service treatment records (STRs) show no relevant abnormalities on the Veteran's September 1946 entrance examination. STRs generated during service also lack documentation of complaints, treatment, or diagnoses related to an electrolyte abnormality, renal disease, hypertension, aortic stenosis, coronary artery disease, or bladder cancer. A Report of Medical Survey from November 1946 shows that discharge was recommended due to a left knee disability. Since service, the record reveals no competent evidence of a nexus between the causes of the Veteran's death and his period of service. Boyer v. West, 210 F.3d 1350, (Fed. Cir. 2000) 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). That is, there is simply no competent evidence that establishes a link between the Veteran's an electrolyte abnormality, renal disease, hypertension, aortic stenosis, coronary artery disease, or bladder cancer, and military service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against a finding that an electrolyte abnormality, renal disease, hypertension, aortic stenosis, coronary artery disease, or bladder cancer were incurred in or aggravated by service. The probative evidence does not show that the conditions were related to the Veteran's active military service, or that a chronic disability was incurred in service. While the Veteran received treatment for other conditions in service, he did not seek treatment related to any of these disorders. Relevant abnormalities were not found within one year of separation from service, including in a private medical report of December 1946; rather, the evidence reflects that the disorders were not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not an electrolyte abnormality, renal disease, hypertension, aortic stenosis, coronary artery disease, or bladder cancer, weighs against the credibility of any statement that these disorders persisted since discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Caluza v. Brown, 7 Vet. App. 498 (1995). A medical opinion on the matter of service connection for the causes of the Veteran's death has not been obtained. However, the Board finds that the evidence, which reveals that the Veteran did not have any relevant abnormalities during service, and does not reflect competent evidence showing a nexus between service and the disorders, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. As service and post-service medical records provide no basis to grant this claim, and in fact provide evidence against this claim, the Board finds that no reasonable possibility exists that such an opinion would aid in substantiating the appellant's claim. 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed.Cir.2008). To the extent the appellant asserts that the Veteran's causes of death were related to service, she has not been shown to have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as electrolyte abnormalities, renal disease, hypertension, aortic stenosis, coronary artery disease, or bladder cancer. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Additionally, presumptive service connection for cardiovascular-renal disease as a "chronic disease" is not warranted as there is no documentation of the condition from within one year of the Veteran's 1946 discharge. As for a continuity of symptomatology between the disorder and service, cardiovascular-renal disease was not noted during service, and characteristic manifestations of the disease processes were not identified. Accordingly, § 3.303(b) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Accordingly, the Board finds that the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the appellant's favor. Death Pension Pursuant to 38 C.F.R. § 3.3 (b)(4), improved (non-service-connected) death pension is a benefit payable by VA to a veteran's surviving spouse because of the veteran's non-service-connected death. Basic entitlement exists if: (i) the veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(3)(i), (ii), (iii), or (iv) of this section; or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for service-connected disability based on service during a period of war; and (iii) the surviving spouse or child meets the net worth requirements of § 3.274 and has annual income not in excess of the applicable maximum annual pension rate specified in §§ 3.23 and 3.24. Under 38 C.F.R. § 3.3 (a)(3)(i)-(iv), a veteran has met the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a disability adjudged service-connected without presumptive provisions of law, or at the time of discharge, had such a service-connected disability, shown by official service records which, in medical judgment, would have justified a discharge for disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. Here, the basic eligibility requirements have not been satisfied. Initially, the Veteran did not serve for 90 days or more, consecutively or in aggregate. His Notice of Separation from U.S. Naval Service shows that he entered service on September 18, 1946, and was discharged on November 7, 1946, thus serving for a period of 50 days. He had no other periods of service. There is no evidence to the contrary and the appellant does not dispute this. Indeed, in filing a claim for benefits in January 1947, the Veteran himself reported the service dates as verified by his Notice of Separation. The Veteran was also not discharged or released from service for a disability adjudged service-connected without presumptive provisions of law, or at the time of discharge, had such a service-connected disability shown by official service records which, in medical judgment, would have justified a discharge for disability. Official service records show that the Veteran was discharged from service by reason of unsuitability for Navy service due to a left knee disorder. There is no question that military medical professionals rendered a judgment that the Veteran's left knee disorder justified his discharge from service. However, his official service record does not show that the disability was service-connected. The October 1946 Report of Medical Survey found unequivocally that the condition that led to his discharge existed prior to enlistment and had not been aggravated by service as it had not progressed at a rate greater than usual for such disorders. Moreover, in a final December 1946 rating decision, service connection for the left knee disorder was denied. Additionally, at the time of his death, the Veteran was not receiving or entitled to receive compensation or retirement pay for a service-connected disability. Again, he had not been service-connected for any disability during his lifetime. As such, entitlement to death pension benefits must be denied as a matter of law. 38 U.S.C. §§ 101, 1521, 1541. Although the Board is sympathetic to the appellant's situation, and by no means wishes to minimize the service the Veteran provided, the Board is bound by the laws codified in Title 38 of the United States Code and Code of Federal Regulations which govern benefits administered by the Secretary of VA. Thus, the Board must apply the law as it exists and cannot extend benefits outside of these boundaries. See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) ("This Court must interpret the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular (claimant)."'). There is no legal basis for an award of nonservice-connected death pension and the appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accrued benefits Upon the death of a veteran, certain persons shall be paid periodic monetary benefits to which the veteran was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). There is no basis for an accrued benefits claim, unless the veteran from whom the accrued benefits claim derives had a claim for VA benefits pending at the time of death. See Jones v. West, 136 F.3d 1296, 1300 (Fed. Cir. 1998). The RO determined that there was no pending claim at the time of the Veteran's death, and the Board agrees. A close review of the record shows that the Veteran had no claims for benefits pending prior to, or at the time of his death in July 2014, nor did he otherwise have any benefits due, but unpaid. Prior to his death, his last correspondence with VA was dated from the 1940s and 1950s, and a close review of this correspondence does not reveal any pending claim. As the Veteran had no claims pending at the time of his death, the criteria for entitlement to accrued benefits are not met. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C. § 5107 (b). ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to nonservice-connected death pension (survivor's pension) benefits is denied. Entitlement to accrued benefits is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs