Citation Nr: 18143799 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 15-15 453 DATE: October 23, 2018 ORDER Entitlement to dependency and indemnity compensation (DIC) for service connection for the cause of the Veteran’s death is denied. Entitlement to accrued benefits is denied. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in February 2009; his death certificate lists hypotension, congestive heart failure, and cardiomyopathy as the primary causes of death, and does not list any conditions as significant contributors to death. 2. Service connection was not in effect for any disability at the time of the Veteran’s death. 3. The evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s cause of death was related to his active service, to include as due to in-service exposure to herbicide agents. 4. No periodic monetary benefits were due and unpaid upon the Veteran’s death. 5. At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability rated as totally disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. 3. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1965 to July 1968 and from October 1978 to October 1981. The Veteran died in February 2009. The appellant is the Veteran’s surviving spouse. The appellant submitted additional evidence after issuance of the March 2015 statement of the case in this appeal and did not request initial Agency of Original Jurisdiction (AOJ) consideration of that evidence. This evidence is accepted for inclusion in the record on appeal. See 38 U.S.C. § 7105(e). In her substantive appeal, the appellant requested a local hearing with a nearest Regional Office Hearing Officer. However, the appellant has since indicated that she does not wish to have a hearing on this appeal. Therefore, the Board will proceed with appellate consideration of the appeal. The appellant has not raised any issues with regard to the duty to notify or duty to assist as they pertain to this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to DIC for service connection for the cause of the Veteran’s death is denied. The appellant seeks entitlement to DIC for service connection for the cause of the Veteran’s death. She contends that the Veteran died from heart disease that was related to presumed in-service exposure to herbicide agents while serving in the Republic of Vietnam. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 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 active military service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a disability to constitute the principal cause of death, it must be one of the immediate or underlying causes of death or must be etiologically related to the cause of death. For a disability to be a contributory cause of death, it must have contributed substantially or materially to cause death; combined to cause death; or aided or lent assistance to the production of death. 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 between the service-connected disability and the veteran’s death. 38 C.F.R. § 3.312(b), (c). Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases, to include atherosclerotic cardiovascular disease and respiratory cancers, may be presumed to have been incurred in service where a veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such a disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where an enumerated disease becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii). Under 38 C.F.R. § 3.309(e), ischemic heart disease is a disease associated with exposure to certain herbicide agents. For purposes of 38 C.F.R. § 3.309(e), ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the appellant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Turning to the relevant evidence of record, the Veteran’s death certificate shows that he died in February 2009. The death certificate lists hypotension, congestive heart failure, and cardiomyopathy as the immediate causes of death, and does not list any other significant conditions contributing to death. The Veteran’s service personnel records reflect that he served in the Republic of Vietnam during his first period of active service. Therefore, he is presumed to have been exposed to herbicide agents, and the question for consideration is whether it is at least as likely as not that the Veteran’s primary causes of death were related to his active service, to include the presumed exposure to herbicide agents. The Veteran’s service treatment records do not show complaints of or treatment for ischemic heart disease. They include a dental patient medical history questionnaire dated in August 1981, approximately two months before the Veteran’s separation from active service, on which the Veteran indicates that he had never been told by a physician that he had heart trouble. There is no indication in the record that the hypotension, congestive heart failure, and cardiomyopathy listed as the primary causes of death on the Veteran’s death certificate had their onset during his active service. Therefore, service connection on a direct basis is not warranted. The Veteran’s post-service treatment records reflect that in late May 1993 he was admitted for what was believed to be a myocardial infarction. However, catheterization performed during that admission revealed normal coronary arteries. The attending physician concluded, “In view of the normal coronaries and moderate left ventricular dysfunction, we felt that he had indeed not suffered the infarct, but that cardiac abnormality was a non-ischemic cardiomyopathy, perhaps related to alcohol.” The Veteran was again seen for cardiovascular complaints in September 1996. A chest x-ray taken at that time showed cardiomegaly, and the attending physician noted, “Unfortunately, the patient continues to drink and smoke heavily and also admitted to using crack cocaine recently.” In October 1996, the Veteran was diagnosed with cardiomyopathy, presumed alcoholic; wide complex tachycardia; and a history of crack/cocaine use, alcohol abuse, and tobacco abuse. In May 2001, the Veteran underwent an echocardiogram, which again showed that the Veteran had non-ischemic cardiomyopathy. The treatment notes relating to the Veteran’s final treatment in February 2009 provide a final diagnosis of end-stage non-ischemic dilated cardiomyopathy, severe low-output heart failure, and systolic heart failure. VA obtained an opinion in April 2014 to determine whether any of the Veteran’s primary causes of death were etiologically related to his active service, to include his presumed exposure to herbicide agents. The examiner reviewed the record and opined that the records clearly reflect that he had non-ischemic cardiomyopathy related to drug and alcohol use, not coronary artery disease. The Board affords probative weight to the examiner’s opinion because the opinion was rendered based on an accurate understanding of the Veteran’s medical history and on the examiner’s expertise as a physician. The conclusion that the Veteran’s cardiomyopathy was non-ischemic is consistent with the medical treatment records dating from 1993 to the time of the Veteran’s death in February 2009, as summarized above. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). In that regard, the Board notes that further medical records were received after the April 2014 VA opinion was rendered. However, as discussed above, those record, to include the treatment notes relating to the Veteran’s final treatment in February 2009, continued to show that the Veteran’s cardiomyopathy was not ischemic in nature. Therefore, the examiner’s opinion remains probative even in view of those additional records. The Board acknowledges the appellant’s argument that the Veteran had symptoms that may have been indicative of ischemic heart disease, to include atrial fibrillation, cardiomyopathy, hypotension, and left bundle branch block. She has submitted internet-based articles to support that argument. However, the internet articles are general in nature and do not relate the Veteran’s specific case. The record shows that the Veteran’s treating physicians determined that the Veteran’s particular heart disease was non-ischemic. The records relating to the Veteran’s final treatment in February 2009 note the condition to be non-ischemic in nature. In addition, the April 2014 VA examiner determined that the medical treatment records clearly show that the condition was non-ischemic. The Board concludes that the appellant’s argument that the Veteran may have had ischemic heart disease is outweighed by the probative evidence of record, which reflects that the Veteran’s heart disease was non-ischemic in nature. The Board also acknowledges the appellant’s arguments that the Veteran turned to drugs and alcohol due to service-connected posttraumatic stress disorder (PTSD), and that the drugs and alcohol, in turn, caused his primary causes of death. However, there is no indication in the record that the Veteran claimed to have PTSD during his lifetime. Moreover, the evidence does not show that he was diagnosed with PTSD or any other psychiatric condition during his lifetime. Therefore, service connection for the cause of the Veteran’s death as secondarily caused by a psychiatric disability is also not warranted. In summary, the probative evidence of record indicates that the Veteran’s heart disease, which was the primary cause of his death, was non-ischemic in nature. Non-ischemic heart disease may not be presumed to be related to the Veteran’s in-service exposure to herbicide agents under 38 C.F.R. § 3.309(e), and there is no competent evidence of record attributing the Veteran’s cause of death to his service. Based on the foregoing, the Board finds that the evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s cause of death was related to his active service, to include as due to in-service exposure to herbicide agents. As the preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. Application. 49. 2. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits due at the time of the Veteran’s death. She contends that the accrued benefits should be paid to her as the surviving spouse based on a claim for entitlement to service connection for exposure to herbicide agents that remained pending at the time of the Veteran’s death or based on a claim for entitlement to service connection for a heart condition that was also pending at the time of the Veteran’s death. Accrued benefits include periodic monetary benefits a veteran was entitled to at the time of death under an existing rating or based on evidence record at the date of death. See 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). Upon the death of the veteran, any accrued benefits are payable to his spouse, or to others if he or she is not alive. 38 U.S.C. § 5121(a)(2); 38 C.F.R. § 3.1000(a)(1). Only evidence contained in the record at the time of the veteran’s death, or certain VA and service department records considered constructively in the record at that time, may be considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). Initially, the Board notes that the Veteran was not service connected for any disability or otherwise already found entitled to periodic monetary benefits at the time of his death. Therefore, whether accrued benefits are due to the appellant depends on whether the Veteran had a pending claim at the time of his death. The appellant has submitted a VA Form 21-4138, Statement in Support of Claim, dated April 21, 2008, to support her assertion that the Veteran had a general claim for entitlement to service connection for exposure to Agent Orange pending at the time of his death. The VA Form 21-4138 appears to have been signed by the appellant on the Veteran’s behalf and states, “I am requesting compensation for injuries, disabilities, and diseases from exposure to Agent Orange and radiation exposure during active military service during a wartime period.” The appellant first submitted the form in May 2015. There is no indication on the form or elsewhere in the record that the claim was received by VA during the Veteran’s lifetime. Furthermore, exposure to Agent Orange is not, in and of itself, a disability for which service connection may be granted. The form does not identify any particular disability for which service connection may be granted, and therefore cannot be considered an appropriate formal or informal claim for disability compensation benefits. See 38 C.F.R. §§ 3.155 (2014) (indicating that an informal claim “must identify the benefit sought.”). Because there is no indication that the form was received by VA prior to the Veteran’s death and because the form does not adequately identify a claim for which benefits may be granted, the Board cannot find that the form constitutes an adequate informal claim that was pending at the time of the Veteran’s death. With regard to the issue of entitlement to service connection for a heart condition for accrued benefits purposes, the Board reiterates its above findings that the evidence of record at the time of the Veteran’s death reflects that the Veteran’s diagnosed heart conditions were non-ischemic in nature and therefore may not be service connected on a presumptive basis as due to exposure to herbicide agents. In addition, the evidence of record at the time of the Veteran’s death does not otherwise show that the Veteran’s diagnosed heart conditions were related to his active service. Therefore, even if the Veteran had a claim for entitlement to service connection for a heart condition pending at the time of his death, such claim cannot be granted, and entitlement to accrued benefits may not be awarded based on that claim. The Board acknowledges the VA Form 21-526, Veteran’s Application for Compensation and/or Pension, requesting accrued benefits and retroactive pay relating to a back injury, diabetes, a rash, a thyroid condition, and abdominal and gastric intestinal conditions, that the appellant submitted in September 2016. However, the Veteran did not submit a claim for compensation benefits relating to diabetes, a rash, a thyroid condition, an abdominal condition, or a gastric intestinal condition during his lifetime. Therefore, no accrued benefits may be awarded as to those conditions. With regard to the reported back injury, the record reflects that the Veteran submitted a claim for entitlement to service connection for a back injury in July 2001, that the Regional Office denied that claim in a January 2003 rating decision, and that the Veteran did not timely appeal that decision. Therefore, the claim was finally decided, and did not remain pending at the time of his death. The Board observes that in October 2015 the appellant submitted a VA Form 21-526 that is dated April 21, 2008, and that lists “back problems” as a disability. However, there is no indication on the form or elsewhere in the record that the claim was received by VA during the Veteran’s lifetime or at any time prior to October 2015. As such, the claim was not pending at the time of the Veteran’s death and entitlement to accrued benefits may not be awarded based on the VA Form 21-526 that was first received by VA in October 2015. In view of the foregoing, the Board concludes that no periodic monetary benefits were due and unpaid at the time of the Veteran’s death. The preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. Application. 49. 3. Entitlement to DIC benefits under 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC benefits under 38 U.S.C. § 1318 in the same manner as if the veteran’s death were service connected where it is shown that the veteran’s death was not the result of willful misconduct, and the veteran: (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was continuously rated totally disabled for a period of not less than 5 years from the Veteran’s discharge from active duty; or (3) was rated by VA as totally disabled for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). At the time of the Veteran’s death, service connection was not in effect for any disability and the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability rated as totally disabling. Therefore,   the Board finds that entitlement to DIC benefits under 38 U.S.C. § 1318 is not warranted in this case. The law is dispositive and the claim is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel