Citation Nr: 18145170 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-03 864 DATE: October 26, 2018 ORDER Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death is denied. Entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in February 2014. The cause of his death was sepsis, secondary to E. coli infection. Other significant conditions contributing to death were asplenia and chronic obstructive pulmonary disease (COPD). 2. The Veteran was not exposed to an herbicide agent during active service and he had no foreign service while on active duty. 3. The Veteran was not exposed to contaminated water at Camp Lejeune. 4. The Veteran’s fatal sepsis, secondary to E. coli infection, did not manifest during service or to a compensable degree within one year of his separation, and the disorder was not related to his active service or any incident therein, or to any service-connected disability, to include lumbar spine degenerative disc disease and bilateral lower extremity radiculopathy. 5. A service-connected disability, to include lumbar spine degenerative disc disease and bilateral lower extremity radiculopathy, did not cause or contribute materially or substantially to the Veteran’s death; combine with another disorder to cause his death; or aid or lend assistance to his death. 6. At the time of his death, the Veteran was not in receipt of, or entitled to receive, compensation for service-connected disability that was rated totally disabling for a period of 10 years immediately preceding his death. CONCLUSIONS OF LAW 1. The requirements for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.312 (2017). 2. The criteria for entitlement to dependency and indemnity compensation benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1961 to March 1964. He died in February 2014. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. The appellant filed a timely Notice of Disagreement (NOD), received in October 2014. A Statement of the Case (SOC) was issued in January 2015.   Entitlement to DIC based on service connection for the cause of the Veteran’s death Dependency and indemnity compensation (DIC) is awarded to the Veteran’s surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, 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. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Analysis After carefully reviewing the available evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran’s death. The Veteran died in February 2014. His death certificate establishes that the cause of death was sepsis, secondary to E. coli infection. Other significant conditions contributing to death were asplenia and chronic obstructive pulmonary disease (COPD). The Veteran’s service treatment records are negative for pertinent complaints or abnormalities, such as sepsis, E. coli infection, asplenia, COPD, or pancreatic cancer. There are notations of a foot infection in January 1963 and an infected lower right eye lid in October 1963. However, his February 1964 separation examination was essentially normal, aside from a mild chest deformity which had been noted on entry. The post-service record on appeal shows that the Veteran was diagnosed with sepsis at Soldiers and Sailors Memorial Hospital in February 2014, approximately fifty years after service separation. It was noted that he was an immuno-compromised patient. There is also no evidence of record suggesting that the Veteran had sepsis, E. coli infection, asplenia, COPD, or pancreatic cancer in service, within the first post-service year, or for many years thereafter. The appellant contends that the Veteran served in Vietnam and was exposed to contaminated water at Camp Lejeune, and that his service treatment records, including his DD-214, were incomplete due to a 1973 fire and because the Veteran served “as a Green Beret, Special Forces, ‘Top Secret.’” See e.g. January 2015 substantive appeal. In her November 2014 NOD, the appellant argued that the 82nd Airborne Division and Special Forces were in Vietnam while the Veteran was on active duty. The Board observes that a copy of the Veteran’s DD Form 214 was received by VA and date-stamped on April 11, 1969. Such states that he had no foreign and/or sea service. Rather, his three years of active service were performed domestically. The Board observes that the Veteran’s military personnel records further support that he spent his entire period of active service in the United States. He was present at Fort Knox, Kentucky, Fort Jackson, South Carolina, Fort Bragg, North Carolina, and Fort Wadsworth, New York. There is no indication in the records that he ever visited Camp Lejeune. Additionally, the Board takes judicial notice of the fact that Camp Lejeune is a Marine Corps base, while the Veteran served in the Army. The Board notes a statement in the Veteran’s service personnel records which explains that due to “the unserviceable condition of the original service record,” entries were transcribed into a new record from the original and were verified. There is a well-established presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that the Department of Defense properly discharged official duties by properly transcribing entries from the Veteran’s original service record into his new record and verifying such entries. Mere lay statements are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 90 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). The Board thus finds that the Veteran did not serve in the Republic of Vietnam and was not exposed to contaminated water at Camp Lejeune. Thus, the presumptions relating to service at such locations are not for application. See e.g. 38 C.F.R. § 3.309(e), (f). Questions of competency notwithstanding, the appellant’s conclusory lay statements, decades after the fact, are entitled to far less probative weight than the officially-created service personnel records, including a copy of the Veteran’s DD Form 214, which was received by VA in 1969. Also in her November 2014 NOD, the appellant indicated that the Social Security Administration (SSA) found the Veteran to be disabled in 2002. However, although SSA records are not part of the claims file, such are not relevant to the instant claim. There is no indication that the Veteran’s fatal sepsis, E. coli infection, or his asplenia or COPD, or pancreatic cancer, were related to an in-service injury or disease. Rather, as noted supra, service treatment records are negative for complaints, observations, treatment, or diagnoses regarding such. While service connection was in effect for lumbar spine degenerative disc disease and associated bilateral lower extremity radiculopathy, there is no indication, nor is it contended, that such caused, contributed to, or hastened the Veteran’s death. In a Statement in Support of Claim received in January 2015, the appellant indicated that the appellant had pancreatic cancer and spleen removal to fight off sepsis. She was surprised that the death certificate did not also list pancreatic cancer. A February 2011 surgical note from Strong Memorial Hospital notes mucinous cystic neoplasm of the distal pancreas. Again, however, service treatment records are negative for complaints, observations, treatment, or diagnoses regarding the pancreas. An August 2011 note states that the appellant underwent distal pancreatectomy and splenectomy for such neoplasia. While service connection was in effect for lumbar spine degenerative disc disease and associated bilateral lower extremity radiculopathy, there is no indication, nor is it contended, that such caused the Veteran’s fatal sepsis or E. coli, asplenia or COPD, or that such resulted in debilitating effects and general impairment of health to an extent that it rendered him materially less capable of resisting the effects of sepsis, E. coli, asplenia or COPD. 38 C.F.R. § 3.312(c)(3). The Board has considered the appellant’s lay history of symptomatology throughout the appeal period. She is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of the Veteran’s symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. In summary, the Board finds that the available record does not show that a service-connected disability caused, contributed to, or hastened the Veteran’s death. Although the Board recognizes the Veteran’s honorable service on behalf of his country and is sympathetic with the appellant’s loss of her husband, in light of the evidence discussed above, there is no basis upon which to award service connection for the cause of the Veteran’s death. Here, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to DIC under the provisions of 38 U.S.C. § 1318 Pursuant to 38 U.S.C. § 1318, DIC benefits are also payable to the surviving spouse of a deceased veteran, in the same manner as if the death were service connected, if such veteran died not as the result of his own willful misconduct and was, at the time of his or her death, either in receipt of or entitled to receive compensation for service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; or (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran’s discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Analysis At the time of his death, service connection was in effect for (1) degenerative disc disease of the lumbar spine, rated at 40 percent disabling from February 4, 2004; (2) right lower extremity radiculopathy, rated at 40 percent disabling from December 22, 2006; and (3) left lower extremity radiculopathy, rated at 20 percent disabling from December 22, 2006. He was also in receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) from December 22, 2006. The Veteran thereafter remained in receipt of VA disability compensation at the 100 percent rate until his death in February 2014. At the time of the Veteran’s death in February 2014, he was not rated as totally disabled as the result of a service-connected disability for a period of ten years or more, or for a period of five years from the date of his separation from active duty. Additionally, the Veteran was not a former prisoner of war. In her November 2014 NOD, the appellant argued that the 10-year requirement would have been met, had VA not “used up 2 years and 9 months in denials and appeals to re-open” the TDIU claim. She also stated that the Veteran was told by VA personnel that, should anything happen to him, his family would receive DIC benefits, or one half of his current benefits. To the extent that the appellant contends that the effective date for the award of a TDIU was erroneous, the Board notes that a timely NOD with respect to the December 2008 rating decision which, inter alia, awarded a TDIU and assigned an effective date of December 22, 2006, was not received within one year of notification of the decision. Rather, a January 2009 statement from the Veteran’s representative states that the Veteran was satisfied with the benefits granted in the December 2008 rating decision and wished to withdraw his appeal. The U.S. Court of Appeals has held that erroneous advice given by a government employee cannot be used to estop the government from denying benefits. Thus, even assuming that incorrect information was given by a VA employee, that fact does not provide a basis on which to grant the appeal. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994); see also Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice given by a government employee cannot be used to estop the government from denying benefits). Rather, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c); see also OPM v. Richmond, 496 U.S. 414, 434 (1990).   Under these undisputed facts, the legal criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 are not met. Accordingly, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel