Citation Nr: 18146236 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-41 858 DATE: October 31, 2018 ORDER Service connection for cause of death is denied. Dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied.   FINDINGS OF FACT 1. The Veteran died in January 2011. His death certificate lists the immediate causes of death as chronic respiratory failure, chronic obstructive pulmonary disease (COPD) and arteriosclerotic cardiovascular disease. Contributing conditions were noted as unspecified liver cirrhosis, congestive heart failure and atrial fibrillation. 2. At the time of his death, service connection was in effect for bilateral hearing loss and tinnitus, which did not cause or materially contribute to his death. 3. The disease processes leading to the Veteran’s death did not have their onset during his service and were not otherwise related, to include exposure to asbestos and other unidentified chemicals. 4. The Veteran was not rated as totally disabled as a result of a service-connected disability (or based on unemployability) for 10 continuous years immediately preceding his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1943 to March 1946. The appellant is his surviving spouse. The case is on appeal from a May 2013 rating decision. In March 2018, the appellant testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for cause of the Veteran’s death. The Veteran died in January 2011. As noted above, his death certificate lists the immediate causes of death as chronic respiratory failure, COPD and arteriosclerotic cardiovascular disease. Contributing conditions were noted as unspecified liver cirrhosis, congestive heart failure and atrial fibrillation. The appellant contends the diseases which caused the Veteran’s death were related to his service. When a veteran dies from a service-connected disability, the veteran’s surviving spouse may be entitled to DIC benefits for the cause of death. 38 C.F.R. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or contributed substantially or materially to the veteran’s death. 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. During the March 2018 Board hearing, the appellant stated that the Veteran worked as a mechanic in service and was responsible for cleaning jeeps. She stated he used and was exposed to a lot of chemicals, as well as asbestos. She asserts the in-service chemical and asbestos exposure led to the diseases, including COPD, which caused his death. She stated several doctors have suggested that potential asbestos exposure led to the Veteran’s COPD and further, that he smoked infrequently during service and not at all after. After the March 2018 hearing, the Board requested a medical opinion from a Veterans Health Administration (VHA) to address the appellant’s theory. The Board obtained a July 2018 opinion from a physician with a specialty including occupational and environmental medicine. The reviewer concluded the Veteran’s chronic respiratory failure was not caused by or otherwise related too service, to include exposure to asbestos and other unidentified chemicals. After review of the Veteran’s medical records, he indicated there was no diagnostic evidence that depicted asbestosis, no pleural plaque on chest x-rays or CT scan that is consistent with asbestosis. He further noted there were no pulmonary function test (PFT) studies in support. The July 2018 reviewer acknowledged the Veteran’s in-service occupation was an auto mechanic and as such, he was exposed to various sources of asbestos, including auto repairs, motors and brake pads. He noted the Veteran was also exposed to industrial fuel oil, gasoline and other such organic solvents, such as totulene, xylenes and ethyl benzene. The reviewer indicated the adverse effect of acute exposure to these agents is central nervous system (CNS) depression and further, xylenes and ethyl benzene have mild transient liver toxicity, especially in humans exposed to high vapor concentration. He reported CT scan reports during the Veteran’s lifetime revealed emphysematous changes, including multiple lung nodules, but no evidence of interstitial pulmonary fibrosis consistent with asbestosis, no pleural plaques, no diffuse pleural thickening, and no biopsy or pleural fluid that revealed asbestos bodies. As such, he concluded the Veteran’s chronic respiratory failure was not related to service, to include exposure to asbestos and other chemicals. The Board finds the diseases which caused the Veteran’s death were not related to service. The Board accords great probative weight to the July 2018 medical opinion. The reviewer responded directly to the relevant question posed and provided a complete rationale, with supporting references to medical literature. He offered clear and concise conclusions with supporting data, as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The VHA medical expert acknowledged the Veteran’s likely exposure to asbestos and other chemicals; however, he found it is less likely than not that there is a causal relationship between such exposure and the diseases that caused his death. Further, the Board notes there are no contrary medical opinions of record supporting a connection between the Veteran’s death and his in-service exposure to asbestos and other chemicals. Although the appellant referenced verbal communications with doctors that may have found such a connection, the Board accords more weight to the written July 2018 opinion that included a detailed explanation and citation to medical literature. Lastly, where a service-connected condition affects vital organs and is evaluated as 100 percent disabling, debilitation may be assumed. See 38 C.F.R. § 3.312(c)(3). While the Veteran was rated as 100 percent disabling, as the service-connected condition was not of a vital organ, this provision is inapplicable. In sum, the Board finds that the disease processes leading to the Veteran’s death did not have their onset during his service and were not otherwise related, to include exposure to asbestos and other unidentified chemicals. Although the appellant’s case is sympathetic in nature, the preponderance of the evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for the cause of the Veteran’s death is not warranted. 2. Compensation under 38 U.S.C. § 1318. Under 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a “deceased veteran” in the same manner as if the death were service-connected. A “deceased veteran” for purposes of this provision is a veteran who dies not as the result of the veteran’s own willful misconduct, and who either was in receipt of compensation, or for any reason (including receipt of military retired pay or correction of a rating after the veteran’s death based on clear and unmistakable error (CUE)) was not in receipt of compensation but would have been entitled to receive compensation, at the time of death for service-connected disabilities rated totally disabling. For the benefits to be awarded to the appellant, the veteran’s service-connected disabilities must have either been continuously rated totally disabling for 10 or more years immediately preceding death; or continuously rated totally disabling for at least five years from the date of the veteran’s separation from service; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former POW. The total disability rating may be schedular or based on unemployability. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Applicable to this case, the Veteran was not rated as totally disabled for a continuous period of ten years or more immediately preceding his death. He was in receipt of a 100 percent rating for bilateral hearing loss from October 28, 2009, which means the 100 percent rating was in effect for less than one year and three months following that date. Thus, the criteria for entitlement to DIC under 38 U.S.C. § 1318 are not met. The Board finds entitlement to DIC benefits under 38 U.S.C. § 1318 is based upon specific and unambiguous requirements that have not been met in this case. The Veteran received entitlement to a 100 percent rating October 28, 2009 to January 7, 2011, his death. Thus, entitlement to DIC under 38 U.S.C. § 1318 is not warranted as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel