Citation Nr: 18152495 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-25 868 DATE: November 23, 2018 ORDER Entitlement service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in January 2014; the death certificate lists the immediate cause of death as acute renal failure and sepsis. 2. The Veteran’s death is not related to his military service. 3. At the time of death, the Veteran was service-connected for prostate cancer status post radical retropubic prostatectomy; loss of bladder control associated with prostate cancer; right lower extremity peripheral neuropathy; left lower extremity peripheral neuropathy; diabetes mellitus, type II; right upper extremity peripheral neuropathy; left upper extremity peripheral neuropathy; erectile dysfunction; and lymphoma, rated 100 percent disabling,effective November 18, 2004. 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(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). 2. The criteria for DIC under 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 from December 1963 to December 1965. The appellant is the Veteran’s widow. 1. Service connection for the cause of the Veteran's death The appellant contends that the Veteran’s service-connected prostate cancer caused liver cancer, which in turn caused the Veteran’s acute renal failure, ultimately resulting in the Veteran’s death. See November 2015 Correspondence. The Veteran’s death certificate shows that he died in January 2014. The immediate cause of death was acute renal failure and sepsis. Hepatocellular carcinoma is listed as a significant condition contributing to death. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). At the time of the Veteran’s death he was service-connected for prostate cancer status post radical retropubic prostatectomy; loss of bladder control associated with prostate cancer; right lower extremity peripheral neuropathy; left lower extremity peripheral neuropathy; diabetes mellitus, type II; right upper extremity peripheral neuropathy; left upper extremity peripheral neuropathy; erectile dysfunction; and lymphoma. See July 2006 Rating Code Sheet. In June 2014 a VA examiner opined that the Veteran’s prostate cancer less likely than not resulted in or contributed to his death. While the Veteran was treated for service-connected prostate cancer in the mid-2000s and had several post-operative complications, there was no recurrence of prostate cancer. As the Veteran’s death certificate indicated that his death was the result of renal failure and sepsis with contribution from his hepatocellular carcinoma, that cancer was the result of the Veteran’s hepatitis C infection – which he was not service connected for. The examiner concluded that the cancer that contributed to his death is not the same as and is not the result of prostate cancer. In March 2018 a VA examiner opined that it was “less likely than not (less than 50 percent probability) that the Veteran’s service-connected prostate cancer status post radical retropubic prostatectomy, loss of bladder control associated with prostate cancer, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, type II diabetes mellitus, right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, erectile dysfunction, and lymphoma, individually or in combination materially or substantially contribute[d] to his death or caused 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.” The examiner reasoned that there was no evidence that the Veteran’s service-connected disabilities affected a vital organ, thus hastening death. Furthermore, the examiner noted that the records clearly showed that the Veteran’s prostate cancer was in remission since the radical prostatectomy surgery was performed. The examiner stated that metastatic liver cancer is not known to be caused from prostate cancer and “in this case there was an obvious cause of [h]epatitis [c] for this cancer.” Additionally, the examiner found that the Veteran’s diabetes was well controlled in the years leading to his death and that none of his other service-connected conditions were seen to be causing any debilitating effects and/or general impairment of health at the time of his death. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appellant’s claim for service connection for the cause of the Veteran’s death. While the evidence of record shows that the Veteran died from acute renal failure and sepsis, the probative evidence of record demonstrates that such is not related to his service-connected disabilities, or that his service-connected disabilities caused or materially contributed to the Veteran’s death. In this regard, the Board places great probative weight on the VA examiners’ opinions as both had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefi v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, no contrary medical opinion is of record. The Board notes that the appellant has contended that the Veteran’s service-connected prostate cancer caused liver cancer which in turn caused the Veteran’s acute renal failure, ultimately resulting in the Veteran’s death. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to” and a mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s service-connected disabilities and the cause of the Veteran’s death to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, while the appellant is competent to describe the Veteran’s disabilities, the Board accords statements regarding the cause of the Veteran’s death little probative value as the appellant is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v, Brown, 7 Vet. App. 134, 137 (1994). In this regard, the cause of the Veteran’s death requires specialized medical knowledge. There is no indication that the appellant possesses the requisite medical knowledge determine such causation. Therefore, the Board accords greater probative weight to the VA examiners’ opinions, than the appellant’s lay assertions as to cause of death. Accordingly, upon a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran’s military service and his death is demonstrated by the evidence of record. The Board is sympathetic to the appellant in that it is clear she sincerely believes the Veteran’s death was caused by his service-connected disabilities. However, the evidence of record does not support these contentions. Although the Board is appreciative of the Veteran’s faithful and honorable service to our country, given the record before it, this claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 2. DIC under 38 U.S.C. § 1318 In order to establish entitlement to DIC benefits under 38 U.S.C. § 1318, it must be shown that the veteran’s death was not the result of his or her own willful misconduct and that at the time of death, the veteran was receiving, or was entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or, was rated totally disabling continuously since the veteran’s release from active duty and for a period of not less than 5 years immediately preceding death; 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 prisoner of war who died after September 30, 1999. The total rating may be based on application of the criteria in the rating schedule or on individual unemployability. 38 C.F.R. § 3.22(c); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). The term “entitled to receive” means that the veteran filed a claim for disability compensation during his lifetime and one of the following circumstances is satisfied: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified but for clear and unmistakable error (CUE) committed in a VA decision on a claim filed during the veteran’s lifetime; or, (2) additional evidence submitted to VA before or after the veteran’s death consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA provides a basis for reopening a claim finally denied during the veteran’s lifetime and for awarding a total service-connected disability rating retroactively; or, (3) at the time of death the veteran had a service-connected disability rated totally disabling by VA, but was not receiving compensation because VA was paying the compensation to the veteran’s dependents; VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; the veteran had not waived retired or retirement pay in order to receive compensation; VA was withholding payments under the provisions of 10 U.S.C. § 1174 (h)(2); VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran was otherwise entitled continued payments based on a total service-connected disability rating; or, VA was withholding payments under 38 U.S.C. §5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b). Here, the Board finds that the appellant’s entitlement to DIC under 38 U.S.C. § 1318 has not been established. At the time of his death in January 2014, the Veteran was service-connected for prostate cancer status post radical retropubic prostatectomy; loss of bladder control associated with prostate cancer; right lower extremity peripheral neuropathy; left lower extremity peripheral neuropathy; diabetes mellitus, type II; right upper extremity peripheral neuropathy; left upper extremity peripheral neuropathy; erectile dysfunction; and lymphoma, rated 100 percent disabling, effective November 18, 2004. As the Veteran was not receiving, and was not entitled to receive, compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death, DIC benefits pursuant to section 1318 are not warranted. The Board is sympathetic to the appellant’s arguments, nevertheless, the Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Although the Board is required to “render a decision which grants every benefit that can be supported in law,” there is no basis in law to grant the DIC claim being decided herein. 38 C.F.R. § 3.103(a) (2017). For the foregoing reasons, the preponderance of the evidence is against the claim for DIC benefits under 38 U.S.C. § 1318. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel