Citation Nr: 18148139 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 13-17 450 DATE: November 8, 2018 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death is denied. FINDING OF FACT A service connected disability did not cause or contribute substantially to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1944 to June 1946. He passed away in March 2004 and the Appellant is his surviving spouse. This case comes on appeal of a March 2011 rating decision. As has been previously noted by the Board, the Appellant was represented in her appeal by an attorney, but in a July 2013 letter the attorney informed VA that she was no longer representing the Appellant. Prior to the receipt of the attorney’s letter, in October 2012, the Appellant submitted VA Form 21-21a appointing a daughter as her “agent.” To represent a client before VA, however, an agent must be accredited; there is no evidence to indicate the Appellant’s daughter has been accredited. The Appellant is not recognized to have a representative at the present time. If she desires to grant a power of attorney to an individual to represent her in matters before VA, she must file the appropriate form. In her June 2013 substantive appeal, the Appellant requested a hearing before a Veterans Law Judge. VA scheduled a hearing in April 2018; the Appellant did not report to the hearing and did not provide good cause for her failure to report, therefore her hearing request is considered withdrawn. This case was previously before the Board in May 2018. At that time the Board remanded the claim to obtain a medical opinion regarding the Veteran’s cause of death and to afford the Appellant an opportunity to either submit medical records related to the Veteran’s death or to provide a release for VA to attempt to obtain those records. Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). To establish entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was causally related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Here, the evidence reflects that the Veteran died in March 2004. His death certificate indicates that the immediate causes of his death were dementia and cerebrovascular accident (CVA). No other underlying or contributing causes were identified. At the time of his death, the Veteran was not service connected for any disability. The Appellant seeks to establish service connection for the cause of the Veteran’s death. She has maintained that the Veteran’s cause of death was causally related to a service-related cardiac condition. The Veteran died without any service-connected disabilities, but was treated for congestive heart failure. After a full review of the record, including the medical evidence, as well as statements by the Appellant and those made on her behalf, the Board finds that service connection for the cause of the Veteran’s death is not warranted. The Veteran’s service treatment records show that upon his examination for separation in June 1946, he was noted to have a pulmonary systolic murmur. Post-service treatment records demonstrate that the Veteran was determined to have hypertension beginning at least in 1968. Treatment records further demonstrate that the Veteran was hospitalized for two months in July 1996 for status post right CVA with left hemiparesis. The Veteran also had a diagnosis of congestive heart failure, beginning at least in December 2003, for which he was treated on numerous occasions throughout the remainder of his life. At a July 2012 regional office hearing, the Appellant asserted that the Veteran’s death was caused in part by his cardiac issues and that his doctor had explained this to her. The Appellant reported that there was proof of this fact in the Veteran’s medical records from the time of his death. At issue, then, are two main questions: 1) Was the Veteran’s death caused, at least in part, by cardiac issues? and, 2) Was any condition that contributed to the Veteran’s death related to in-service cardiac disease or injury? In May 2018, the Board reviewed the claim and determined that a medical opinion was necessary to address these issues. The Board also determined that, prior to obtaining a medical opinion, the AOJ needed to make another attempt to obtain any terminal treatment records, either from the Appellant herself, or by having the Appellant submit a medical release for the records. Shortly after the Board’s decision, the AOJ informed the Appellant that VA still needed the Veteran’s terminal medical records and provided the Appellant with a VA Form 21-4142 and VA Form 21-4142a to allow VA to obtain those records. The Appellant did not respond to this request. Accordingly, the AOJ proceeded in the development and adjudication of the claim without those records. In July 2018, the AOJ obtained a medical opinion regarding the Veteran’s cause of death from Dr. P.H., a primary care physician. In providing his opinion, Dr. P.H. consulted with Dr. J.E.M., a professor of cardiovascular medicine. Dr. P.H. reported that the Veteran was noted to have a pulmonary systolic murmur in his June 1946 separation examination and that this murmur was not considered disqualifying from service. According to Dr. P.H., subsequent medical notes from April 1977 and June 1990 revealed no evidence of a heart murmur. An echocardiogram was performed to evaluate a separate heart murmur noted during a July 1996 hospitalization, and that echocardiogram identified no pulmonic valve abnormalities. Further, according to Dr. P.H., the Veteran had several cardiovascular risk factors—including hypertension, a family history of cardiovascular disease, prior tobacco use, and diabetes—and was diagnosed with coronary artery disease in 1998, with evidence of a prior myocardial infarction. Dr. P.H. acknowledged that the Veteran was subsequently noted to have a cardiomyopathy with congestive heart failure and that this contributed to the Veteran’s death. This condition was documented in a 2003 echocardiogram that demonstrated that the Veteran had severely reduced left ventricular function with moderate mitral regurgitation and severe tricuspid regurgitation. Based on this echocardiogram, however, there was again no mention of any pulmonic valve abnormality. Based on his evaluation and explanation of the Veteran’s medical history, Dr. P.H. acknowledged that the Veteran had a history of heart conditions that contributed to his death; however, he found that it was less likely as not that any of the medical conditions that contributed to the Veteran’s death—to include these heart conditions—were related to service, to include the pulmonary systolic murmur documented on the Veteran’s June 1946 separation examination. The July 2018 medical opinion was provided by a competent physician and provides significant medical rationale in support of its conclusions; therefore, the Board finds the opinion to be probative. The only evidence in support of the Veteran’s in-service condition contributing to his death comes from the Appellant’s testimony. Although the Appellant, as a layperson, is competent to testify to conversations she had with the Veteran’s physicians, her testimony is not supported by the extensive medical evidence of record and is therefore less probative than Dr. P.H.’s opinion. It appears that the Appellant is correct insofar as the Veteran’s heart conditions did contribute to his death, however, there is no evidence to support that those heart conditions were related to the June 1946 pulmonary systolic murmur, or to any other in-service disease or injury. Indeed, Dr. P.H.’s opinion documented several points in the medical record that demonstrated that there was no evidence that the pulmonary systolic murmur had continued past service. Instead, the Veteran’s numerous heart conditions affected different parts of the heart and were most likely caused by a host of cardiovascular risk factors. Accordingly, the preponderance of the evidence is against a finding that a service-connected disability caused or contributed substantially to the Veteran’s death. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel