Citation Nr: 18158648 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-03 421 DATE: December 17, 2018 ORDER Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran was not in receipt of a total disability rating for 10 continuous years immediately preceding his death, was not rated as totally disabled continuously since his discharge from active duty and for at least 5 years preceding death, and was not a prisoner of war. 2. At the time of his death in August 2012, the Veteran was service-connected for residuals of frostbite and peripheral neuropathy of the bilateral hands and feet, and residuals of frostbite of the bilateral ears. 3. The Veteran’s primary cause of death was acute renal failure with congestive heart failure, bladder cancer, and renal cancer as contributory causes. 4. A preponderance of the evidence does not demonstrate that a service-connected disability was the immediate or underlying cause of the Veteran’s death, nor was a service-connected disability etiologically related to the cause of the Veteran’s death. 5. A preponderance of the evidence is against finding that the Veteran’s death was caused by a disability incurred in or aggravated by service or otherwise etiologically related to any incident or disease during the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). 2. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1949 to February 1952. The Veteran died in August 2012. The appellant is his surviving spouse. These matters are on appeal from a September 2014 rating decision. Duties to Notify and Assist With respect to the appellant’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the appellant nor her representative have advanced any procedural arguments in relation to VA’s duty to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Dependency and Indemnity Compensation 1. Entitlement to DIC pursuant to 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, a surviving spouse may be entitled to DIC in the same manner as if the veteran’s death were service-connected, under certain specific conditions. VA shall pay DIC under 38 U.S.C. § 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or “entitled to receive” compensation for a service-connected disability rated totally disabling provided that (1) the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death; (2) the disability was continuously rated totally disabling since the veteran’s release or discharge from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former prisoner of war who died after September 30, 1999, the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. The total disability rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. After a careful review of the evidence of record, the Board finds that the appellant’s claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted. At the time of the Veteran’s death, service connection was in effect for residuals of frostbite and peripheral neuropathy of the bilateral hands and feet, and residuals of frostbite of the bilateral ears. His combined disability rating was 70 percent from December 1, 2004. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was in effect from December 1, 2004 until the time of the Veteran’s death in August 2012, a period of less than eight years. As such, the evidence shows that the Veteran was not continuously rated totally disabled for a period of at least 10 years prior to his death. Therefore, DIC under 38 U.S.C. § 1318(b)(1) is not warranted. The Board further notes that the Veteran was neither rated totally disabled for a period of not less than 5 years from the date of his discharge from active duty in February 1952, nor was he a prisoner of war with a total disability rating for a period of not less than one year immediately preceding death. Thus, the provisions of 38 U.S.C. § 1318 (b)(2), (3) are not for application. The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. As the evidence shows the Veteran was not continuously rated totally disabled during the 10 years preceding his death, was not continuously rated totally disabled since release from active duty, and was not a former prisoner of war, the legal criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. Accordingly, entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to service connection for the cause of the Veteran’s death The appellant seeks service connection for the cause of the Veteran’s death. The Veteran died in August 2012. His death certificate identifies acute renal failure as the primary cause of death, with congestive heart failure, bladder cancer, and renal cancer as contributory causes of death. At the time of his death, the Veteran was service connected for residuals of frostbite and peripheral neuropathy of the bilateral hands and feet, and residuals of frostbite of the bilateral ears. The appellant alleges that the Veteran’s frostbite condition caused chronic circulation issues that contributed to his heart condition and kidney failure. The appellant has also argued that the Veteran’s cause of death was due to his exposure to contaminated water at Camp Lejeune. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). At the time of his death, the Veteran was not service-connected for any of the diseases listed as primary and contributory causes of death. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires medical evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). For certain chronic disorders, to include cardiovascular-renal disease and cancer, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases establishing presumptive service connection for exposure to contaminants in the water supply at United States Marine Corps Base Camp Lejeune, North Carolina. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). The listed diseases include kidney cancer and bladder cancer. 38 C.F.R. § 3.309(f). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a veteran, former reservist, or member of the National Guard must show the following: (1) service at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that he or she currently suffers from a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309(f); and (3) that the current disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Based on the analysis below, the Board has determined that the preponderance of the evidence is against the appellant’s claim and service connection for the cause of the Veteran’s death is not warranted. As an initial matter, the Board notes that the Veteran’s military personnel records indicate that he was stationed briefly at Camp Lejeune prior to discharge in February 1952. The Veteran did not serve at Camp Lejeune during the presumptive period set forth by regulation. Therefore, the Veteran’s cause of death is not eligible for presumptive service connection under 38 C.F.R. § 3.307(a)(7) and the appellant’s contention that the Veteran’s cause of death was due to his exposure to contaminated water at Camp Lejeune will not be further discussed. Next, the appellant contends that the Veteran’s service-connected disabilities, to include residuals of frostbite, resulted in chronic circulation problems which may have caused the diseases that led to the Veteran’s death. To address this theory of entitlement, VA obtained a medical opinion from a VA physician in October 2016. Following a review of the Veteran’s claims file, the VA physician concluded that it is less likely than not that the Veteran’s cold injury residuals played a substantially contributing role in his death. The physician stated that, while cold injury can lead to some peripheral neuropathy and microcirculatory disturbance, it does not lead to renal or cardiac disease or cancers of the internal organs. The physician noted that the Veteran’s medical records do not reflect sufficient evidence of debilitation (due to cold injury) that would affect these internal organ conditions. Furthermore, she opined that the service-connected condition was not shown to cause debilitating effects and general impairment of health to an extent that would render the Veteran less capable of resisting the primary cause of death. The physician therefore determined there is no medical relationship between the Veteran’s service-connected cold injury, or its treatment, and the Veteran’s death. The Board notes that the claims file includes numerous private treatment records from various healthcare providers, documenting the Veteran’s treatment for several disabilities, including, but not limited to, chronic kidney disease, diabetes mellitus, hypertension, coronary artery disease, and cancers of the kidney and bladder, during approximately the last ten years of his life. Despite these detailed and extensive medical records, the Board finds it noteworthy that none of them mention the Veteran’s residuals of frostbite to his hands and feet or suggest that the Veteran was suffering any lasting or debilitating effects from his service-connected cold injuries. Moreover, none of the Veteran’s treating physicians linked the Veteran’s renal or cardiac disease or cancers of the kidney and bladder to his residuals of frostbite or to any associated circulation issues, nor to any other in-service disease or injury. Therefore, the Board finds that service connection for the cause of the Veteran’s death is not warranted on either a direct or secondary basis. Finally, there is no medical evidence contained in the claims file to suggest that the diseases that principally caused or contributed to the Veteran’s death were incurred during service or manifested to a compensable degree within one year following separation from service. Although the claims file only contains medical records from about 10 years before the Veteran’s death, the medical evidence is clear that the Veteran developed kidney and heart disease and cancers of the kidney and bladder many years after his discharge from service in February 1952. Therefore, the Board does not find that service connection for the cause of the Veteran’s death is warranted on a presumptive basis for chronic disease under 38 C.F.R. § 3.307(a)(3). In sum, the claims file does not contain competent and credible evidence that the Veteran’s primary cause of death, acute renal failure, or contributory causes of death, congestive heart failure, bladder cancer, and renal cancer, are related to the Veteran’s military service, to include as secondary to his service-connected residuals of frostbite. The Board finds the competent and credible objective medical evidence, including the Veteran’s end-of-life medical records and the October 2016 medical opinion by a VA physician, to be the most probative evidence of record. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Significantly, the appellant has not presented or identified any contrary medical opinion that supports the claim for service connection, on a direct, secondary, or presumptive basis. Moreover, although the Board acknowledges the appellant’s sincere belief that the Veteran’s cause of death is related to his military service, the Board notes that, as a layperson not shown to have medical training or expertise, the appellant is not competent to render an opinion as to the etiology of the Veteran’s primary and contributory causes of death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must rely on the objective medical evidence of record, and the most probative medical evidence weighs against finding in favor of service connection for the cause of the Veteran’s death. Accordingly, the claim of entitlement to service connection for the cause of the Veteran’s death is 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, 1 Vet. App. at 49. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel