Citation Nr: 18157244 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-54 813 DATE: December 12, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. At the time of his death, the Veteran was service-connected for lumbar instability, spondylosis, degenerative disc disease of the thoracic, lumbar and sacral spine, rated as 20 percent disabling; coronary artery disease (CAD), status-post (s/p) stent of left anterior descending artery (LAD) and right anterior descending artery (RAD), rated as 10 percent disabling and hypertension, rated as 10 percent disabling. 2. The Veteran died in May 2013. The official death certificate listed pneumonia, secondary to lung cancer and acute renal failure, with contributing factors of chronic obstructive pulmonary disease (COPD) and tobacco use, as the cause of death. 3. The Veteran’s cause of death was not related to his military service, to include herbicide exposure. 4. The Veteran was never a prisoner of war, the interval between the Veteran’s release from active duty and his death was more than 5 years and the Veteran was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312. 2. The criteria for DIC pursuant to 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 April 1971 to February 1981. This matter comes before the Board on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Service Connection for Cause of Death Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent, credible evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). 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. Id. A surviving spouse of a qualifying veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for the cause of the Veteran’s death The appellant contends that the Veteran’s death is related to his service, to include herbicide exposure, namely Agent Orange exposure. The Board finds that the record evidence preponderates against a finding in favor of the appellant’s claim that the Veteran’s military service caused, or significantly or materially contributed to the Veteran’s death. The Veteran was diagnosed with pneumonia, metastatic lung cancer and acute renal failure with right hydronephrosis in May 2013, shortly before his death on May 28, 2013. The official death certificate listed pneumonia, secondary to lung cancer and acute renal failure as the cause of death. COPD related to tobacco use was listed as a condition that significantly contributed to the Veteran’s death. Service treatment records (STRs) revealed no abnormalities that were attributed to pneumonia, lung cancer, acute renal failure or COPD. STRs dated August 1973 through January 1981 revealed that the Veteran complained of cold and “flu-like” symptoms, sinus congestion and chest pain. A June 1975 STR indicated that he was diagnosed with tracheobronchitis. August 1973, December 1973 and January 1981 chest x-rays were normal. The Veteran’s January 1981 separation examination Report of Medical Examination did not indicate that the Veteran was diagnosed with pneumonia, lung cancer, acute renal failure or COPD. On the Report of Medical History, he endorsed “yes” for “chronic or frequent colds” and “pain or pressure in chest” and endorsed “no” for “shortness of breath” and “chronic cough”. The Veteran’s post-service medical records indicated that in September 2011, the Veteran underwent a lung biopsy after radiographic imaging showed a mass on the Veteran’s left anterior lung. A June 2012 chest x-ray showed new opacity in the right mid-lung zone suspicious for pneumonia. A January 2013 chest x-ray showed development of mild left lower lobe pneumonia, with minor pleural reactions. A May 7, 2013 chest x-ray showed left lung pneumonia with effusion. A May 18, 2013 VA treatment note indicated that the Veteran was diagnosed with large right renal hydronephrosis. The record evidence indicated that the Veteran died of pneumonia, secondary to lung cancer and acute renal failure on May 28, 2013. The appellant filed a claim for service connection for the cause of the Veteran’s death in June 2013. The RO denied the service connection claim in a June 2013 rating decision, mailed to the Veteran in August 2013. In April 2014, the appellant submitted a timely appeal and asserted in the Notice of Disagreement (NOD), that the Veteran informed her that he “was sent to Vietnam for a short time to dig trenches”. The appellant asserted that the Veteran was “with the 7th Army and [his] primary overseas assignment was in Germany”. The appellant contended that the Veteran’s cause of death was due to Agent Orange exposure. She also asserted that the Veteran’s “cancer and heart condition [was] misdiagnosed as pneumonia”. In a July 2014 Statement in Support of Claim, the appellant asserted that the Veteran developed lung cancer and died as a result of his Agent Orange exposure. The appellant reiterated her contentions in an October 2016 Statement in Support of Claim. In an April 2016 Formal Finding of Lack of Sufficient Information to Request Research of Unit Records, the RO determined that there was insufficient information of record to request research of unit records from Joint Services Records Research Center (JSRRC) for the Veteran’s claimed Agent Orange exposure. The RO found that the appellant did not provide “more specific circumstances surrounding the Veteran’s exposure to Agent Orange”. The RO also noted that the Veteran’s military personnel records showed that he served in Germany from 1971 to 1980. There was no record of any service in the Republic of Vietnam and the Veteran’s STRs did not substantiate any claimed exposure to Agent Orange. In a June 2016 medical opinion, a VA examiner rendered the clinical assessment that it is less likely than not that the Veteran’s cause of death was proximately due to or the result of his service-connected disabilities. The examiner explained that after reviewing the medical evidence of record, the Veteran’s STRs did not indicate treatment for any disabilities listed on the Veteran’s official death certificate. The examiner noted that VA treatment records included the following conditions on the Veteran’s problems list: syncope, concussion, hyponatremia, hypertension, hypomagnesemia, hydronephrosis, dysphagia/esophagogastroduodenoscopy (EGD)/hiatal hernia/gastroesophageal reflux disease (GERD)/biopsy of the lower 1/3 of the esophagus, acute alcoholic intoxication in alcoholism, continuous drinking behavior, tobacco use disorder, vitamin B-12 deficiency, hypertension, essential, carotid artery disease, chest pain, COPD, CAD, CAD native vessel s/p percutaneous coronary intervention (PCI) of LAD, drug-eluting stent (DES) in 2009 and swelling, mass, or lump in chest. The examiner noted that in January 2013, the Veteran saw his primary care physician who noted that the Veteran was a smoker with “very well-controlled” hypertension by taking Lisinopril 10mg/d and Amlodipine 10mg/d with no cardiac complaints. The VA examiner noted that on May 7, 2013, the Veteran was admitted to the Birmingham VA Medical Center for shortness of breath and cough. He was diagnosed with pneumonia and a large left-sided malignant endobronchial lung mass. The Veteran’s condition deteriorated over the next few days, he was placed on mechanical ventilation, developed severe acute kidney injury (AKI), was placed in hospice care and passed away shortly thereafter. The examiner further opined that, based upon a review of the medical evidence of record and available medical literature and principles, the Veteran’s service connected disabilities less likely than not caused or substantially contributed to the Veteran’s death. The examiner expounded on the fact that the Veteran clearly died of pulmonary causes (pneumonia, lung cancer and COPD) which were contributed to by his long history of smoking. The examiner added that the Veteran’s CAD and hypertension were stable/controlled and did not cause any symptoms/disabilities in the months/years preceding his death. In the examiner’s judgement, the Veteran’s service-connected back condition did not cause his death. The examiner determined that the Veteran’s service-connected CAD and hypertension were stable/controlled and along with the Veteran’s service-connected back condition, did not cause any symptoms, disabilities, debilitation or health impairment in the months/years preceding his death. Overall, the examiner ultimately determined that the Veteran’s STRs showed no evidence that pneumonia, lung cancer, acute renal failure or COPD, all listed as the official cause (or significant factor) of death, started during service. In the examiner’s judgment, no predisposing conditions leading to the cause of death were seen in the Veteran’s records. After carefully reviewing the evidence of record, the Board finds that the most probative evidence is against a finding that the Veteran’s military service caused or substantially or materially contributed to producing the Veteran’s death. The Veteran’s official cause of death was pneumonia, secondary to lung cancer and acute renal factor. COPD and tobacco use were listed as conditions that significantly contributed to the Veteran’s death. STRs indicated that the Veteran was not treated for, or diagnosed with, pneumonia, lung cancer, acute renal failure or COPD in service. The Board considers the June 2016 VA medical examiner’s opinion that the Veteran’s cause of death is unrelated to his service-connected disabilities or active duty service probative. The examiner rendered the clinical assessment that the Veteran died of pulmonary causes (pneumonia, lung cancer and COPD) which were contributed to by his long history of smoking. The examiner added that the Veteran’s service-connected CAD and hypertension were stable/controlled and there was no indication that the conditions caused any symptoms/disabilities in the months/years preceding the Veteran’s death. The Board also notes that VA treatment records indicated that the Veteran was first diagnosed with pneumonia in January 2013, approximately 4 months before his death and metastatic lung cancer and acute renal failure with right hydronephrosis in May 2013, more than 30 years after his separation from service. VA treatment records revealed no abnormalities that were attributed to lung cancer or COPD within the one-year presumptive period after the Veteran’s separation from service. With regard to the appellant’s claim that the Veteran’s herbicide exposure significantly or materially contributed to, or caused the Veteran’s death, the appellant has not provided sufficient evidence of the Veteran’s actual exposure to herbicides. The Board observes the RO’s April 2016 Formal Finding of Lack of Sufficient Information to Request Research of Unit Records of exposure to herbicides. The RO noted that the appellant did not provide sufficient detail of the circumstances surrounding the Veteran’s exposure to Agent Orange. The RO also noted that the Veteran’s military personnel records showed that he served in Germany from 1971 to 1980 and that there is no record of any service in the Republic of Vietnam or that his STRs substantiated any exposure to Agent Orange. Regarding the appellant’s lay assertions, the Board acknowledges the appellant’s belief that she is entitled to service connection for the cause of the Veteran’s death. The appellant, however, has not shown that she possesses the expertise necessary to opine on the technical matter of identifying herbicide compounds and finding that the Veteran was exposed to such during his service. The Board also recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. The appellant’s assertions are outweighed by the VA medical opinion. For the foregoing reasons, the Board finds that service connection for the cause of the Veteran’s death, to include as due to herbicide exposure, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. DIC Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran’s surviving spouse in the same manner as if the veteran’s death is service-connected, even though the veteran died of non-service-connected causes, if the veteran’s death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for 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 either schedular or based upon unemployability. 38 U.S.C. § 1318. For purposes of 38 U.S.C. § 1318, “entitled to receive” means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because; (1) VA was paying the compensation to the veteran’ s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; (6) 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. 2. Entitlement to DIC under 38 U.S.C. § 1318 Based on the evidence of record, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met and will not be met in this case. The Veteran was rated less than 100 percent disabled from the time of his separation from service through May 2013, when he passed away. Because the Veteran was discharged from active duty in February 1981, the 5-year rule of 38 U.S.C. § 1318 has not been satisfied. Moreover, it is undisputed that the Veteran was not a former prisoner of war. In this case, at the time of his death, the Veteran was service-connected for lumbar instability, spondylosis, degenerative disc disease of thoracic, lumbar and sacral spine, rated as 20 percent disabling; coronary artery disease (CAD), status-post (s/p) stent of LAD and RAD, rated as 10 percent disabling and hypertension, rated as 10 percent disabling. The Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death. For this reason, it is not legally possible to establish a 100 percent rating for a 10-year period to meet the eligibility requirement for DIC under 38 U.S.C. § 1318. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) did not die within 5 years of discharge from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel