Citation Nr: 18151675 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-14 611A DATE: November 19, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. The Veteran died in August 2005 with a primary cause of death of cardiopulmonary arrest due to bacterial meningitis. 2. The Veteran was in Vietnam and therefore he was presumed to have been exposed to herbicides in service. 3. Ischemic heart disease is shown as likely as not to have contributed substantially or materially in contributing to the Veteran’s death. 4. At the time of his death, the Veteran did not have any pending claims for VA benefits. 5. There are no errors of fact or law with respect the appellant's claim of entitlement to VA nonservice-connected death pension. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. § 3.5, 3.307, 3.309 (2017). 2. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. §§ 101, 5121 (2012); 38 C.F.R. §§ 3.57, 3.1000 (2017). 3. As a greater benefit is awarded, the claim for death pension benefits is dismissed. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.152 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to April 1975. He died in August 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied entitlement to DIC, entitlement to death pension, and entitlement to accrued benefits. Service Connection for the Cause of the Veteran's Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving child of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. A veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The 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 that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a veteran’s death for compensation purposes, 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). With regard to service connection, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307(a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). In this case, the Veteran served from 1972 to April 1975, with 4 months of overseas service, and was in receipt of the Vietnam Service Medal. Post-service VA outpatient treatment records reflect the Veteran’s report that he served in Vietnam for several months. In addition, service treatment records include a “Malaria Debriefing” signed and dated by the Veteran in February 1973, indicating that the Veteran acknowledged that, by virtue of having been in Vietnam, he may have been exposed to malaria. He indicated that he took the required tablets to prevent malaria while in Vietnam and agreed to continue with the tablets upon his return from Vietnam. The Board finds this evidence sufficient to establish in-country service in Vietnam during the requisite period, and therefore, the Veteran is presumed to have been exposed to herbicides in service. The death certificate lists the primary cause of death of cardiopulmonary arrest due to bacterial meningitis. The Veteran was not service-connected for any disability at the time of his death. Service treatment records include no complaint, finding, or diagnosis with respect to cardiopulmonary disability or to bacterial meningitis. Post-service treatment records include records from the Delano Regional Medical Center indicating that the Veteran was seen with complaint of chest pain, and was subsequently diagnosed with acute posterior wall infarction and congestive heart failure in 1995. In August 2005, the Veteran presented at the emergency room due to altered level of consciousness. He started having seizure activity while at the hospital and was admitted for workup after assessment of probable meningitis. During the course of his four-day hospitalization, he had occasional seizure activity. On the date of his death, he became very short of breath and was transferred to the intensive care unit, where he had a cardiorespiratory arrest. Attempts at resuscitation were unsuccessful and he was pronounced dead. Death probably secondary to acute respiratory distress syndrome and to infection of the lower respiratory tract, probable meningitis, was indicated. In a May 2016 opinion, Dr. S. indicated that he reviewed the Veteran’s claims file for opinion on the cause of the Veteran’s death. He noted that a November 1995 report from the Delano Regional Medical Center indicated that the Veteran developed sudden onset of chest pains radiating to the back and into the left upper arm with diaphoresis. He was evaluated for probably acute posterior wall infarction, with treatment records following this incident indicated complications and diagnoses of ongoing cardiac impairment, including coronary artery disease. Dr. S. indicated that coronary artery disease is often labeled as ischemic heart disease, and this impairment was considered an acute coronary syndrome and may be brought on by a number of factors, such as exposure to herbicides. Dr. S. further noted that acute coronary syndrome was often associated with a compromised immune system response, which makes patients more susceptible to infection. He indicated that in the general population of healthy individuals, the susceptibility of developing meningitis infection was uncommon, and with as not as contagious as many other pathogens such as the flu. As such, he found that the Veteran’s acute coronary syndrome as a result of his coronary artery disease made him more susceptible to infection of all kinds. Based upon his review of the claims file, medical evidence, and research, Dr. S. found it at least as likely as not that the Veteran’s longstanding coronary artery disease contributed materially and substantially to the development of fatal meningitis by weakening his immune system, making him more susceptible to infection. With regard to the presently nonservice-connected cause of death listed on his death certificate, cardiopulmonary arrest due to bacterial meningitis, here there is no probative evidence of a nexus between cardiopulmonary arrest and/or bacterial meningitis and the Veteran’s service. That is, service connection is not warranted for the cause of death listed on the Veteran’s death certificate. The appellant has never specifically contended, and evidence does not otherwise establish, that the disability listed on the death certificate had its onset during the Veteran’s active service many years ago. As discussed above, bacterial meningitis was diagnosed shortly prior to death, with acute cardiopulmonary arrest occurring immediately before death, and there is no indication of either in service. Moreover, there also is no probative evidence (no nexus evidence) linking the Veteran’s cause of death with his active service. Holton, 557 F.3d at 1366. Rather, the appellant contends that the Veteran’s myocardial infarction/heart disease was secondary to his herbicide exposure in service and contributed to or hastened his death. Dr. S. opined that the Veteran’s acute coronary syndrome made him more susceptible to infection of all kinds and at least as likely as not contributed materially and substantially to the development of fatal meningitis. There is no opinion to the contrary. Ischemic heart disease, which includes acute, subacute and old myocardial infarction, coronary artery disease and coronary bypass surgery, is subject to presumptive service-connected for veterans exposed to herbicides in service, as was the Veteran, and given that it manifests to compensable degree—which is also the case here with the Veteran suffering from myocardial infarction in 1995. See 38 C.F.R. §§ 3.309, 4.104. Moreover, the only medical opinion evidence of record supports the finding that the Veteran's ischemic heart disease/myocardial infarction was contributory cause of the Veteran’s death in that it aided or assisted in the production of death. Accordingly, resolving all reasonable doubt in favor of the appellant, service connection for the cause of the Veteran’s death is warranted. Entitlement to Accrued Benefits Periodic monetary benefits to which a Veteran was entitled at death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as “accrued benefits.” 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran’s death. 38 U.S.C. § 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). A review of the record provides no evidence of a pending claim at the time of the Veteran’s death in August 2005, and the appellant has not made a specific argument asserting that there was such a pending claim. Therefore, because the record shows that the Veteran did not have any type of claim pending at the time of his death, there are no possible accrued benefits that could be paid to the appellant. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In sum, the appellant has no legal basis for entitlement to accrued benefits because there was no pending claim at the time of the Veteran’s death on which the appellant’s accrued benefits claim could be based. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. 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). Entitlement to Death Pension Death pension is a benefit payable in certain circumstances to a veteran’s surviving spouse because of the veteran’s nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3 (b)(4), 3.23(a)(5), (d)(5). (Continued on the next page)   The Board has granted the appellant's claim of entitlement to DIC. DIC is a greater benefit than death pension; and the appellant has not requested the lesser benefit. Therefore, there are no further errors of fact or law with respect to the appellant's claim for death pension, and it is dismissed. 38 U.S.C. § 7105. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel