Citation Nr: 18160782 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-23 810 DATE: ORDER Entitlement to service connection of the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits is denied. REMANDED Entitlement to survivor's pension benefits based on countable income is remanded. FINDING OF FACT The Veteran did not sustain any incident, illness or injury during his active service to which his various causes of death may be etiologically linked; he was not exposed to herbicides during active service. CONCLUSION OF LAW The criteria service connection for the Veteran’s cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312, 3.313. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1952 to April 1955. The Veteran died in July 2013. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February and November 2014 rating decisions and a January 2015 decision letter issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. In August 2018, the appellant testified before the undersigned Veterans Law Judge at a hearing held at the Regional Office (RO) in Los Angeles, California. A transcript of that hearing is of record. Entitlement to service connection of the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits The appellant seeks service connection of the Veteran’s cause of death for purposes of entitlement to DIC benefits. After careful consideration, the Board finds that the claim should be denied. Pursuant to 38 U.S.C § 1310, DIC benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. See 38 U.S.C § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran’s death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The disability is the principal cause of death if it was “the immediate or underlying cause of death or was etiologically related thereto.” 38 C.F.R. § 3.312(b). It is a contributory cause if it “contributed substantially or materially” to the cause of death, “combined to cause death,” or “aided or lent assistance to the production of death.” 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, including cardiovascular-renal disease, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran’s death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran’s death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). In this matter, the Veteran’s death certificate gives asystole and aspirational pneumonia as his primary causes of death. Contributory causes of death were myocardial infarction, paroxysmal atrial fibrillation, cellulitis, and acute renal failure. Therefore, these disabilities satisfy the primary criteria of service connection. However, upon review the Board does not find any in-service incident, event, or illness to which the Veteran’s causes of death may be etiologically linked. The Board has carefully reviewed the Veteran’s service treatment records but found no such incident or illness. Further, upon separation in 1955 he was found to have no significant physical issues and was physically qualified to perform active duty on foreign service but for his discharge. The remainder of his service treatment records do not document any illnesses beyond a bacterial infection which was successfully treated with antibiotics at the time, and some dental work. For her part, the appellant has asserted that the Veteran was exposed to herbicides during active service. If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, to include myocardial infarction, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. For purposes of determining herbicide exposure, a Veteran must have served in the Republic of Vietnam between January 9, 1962, and May 7, 1975. 38 C.F.R. § 3.307(a)(6). As noted above, myocardial infarction is a disability for which presumptive service connection is granted. While the Veteran’s other disabilities listed on his death certificate are not presumptive disabilities associated with herbicide exposure, this does not preclude service connection on a direct basis, presuming the appellant can prove exposure to herbicides and provide evidence of an etiological link between that exposure and those disabilities. Unfortunately, the Board finds that the record does not support the Veteran being exposed to herbicides during active service. The record does not reflect, nor does the appellant contend that the appellant ever set foot in the Republic of Vietnam during the applicable presumptive period. In fact, the Veteran separated from service nearly seven and a half years before herbicides were used in that country. To the extent that he did serve during the Korean conflict, herbicide exposure is conceded in veterans who operated in or near the Korean Demilitarized Zone (DMZ) between April 1, 1968, and August 31, 1971. The Veteran’s military personnel records do not place him anywhere near the DMZ during active service (indeed, his assigned stations only include various seagoing ships without any evidence that he was ever sent ashore). Further, even presuming he had set foot on the Korean peninsula, of which there is no evidence, the Veteran separated from active service nearly thirteen years prior to herbicides being used along the DMZ. Considering the above, the Board must conclude that the Veteran did not sustain any incident, illness or injury during active service, to include exposure to herbicide agents, to which his causes of death may be etiologically linked. Therefore, from a direct service connection perspective, the claim fails the second criteria of service connection and must be denied. The Board has considered whether the Veteran’s renal disease may be presumptively service connected as a chronic disease, but finds no evidence in the record to show that that disability manifested to a compensable degree within one year of separation from service. Finally, the Board acknowledges the appellant’s claim that the Veteran suffered from “shell shock” which caused his death. Here the Board notes that the Veteran was not service-connected for any psychiatric disability at the time of his death, nor is there any evidence that a psychiatric disability led to his death in 2013. Indeed, no such disability is listed on his death certificate, and therefore the Board does not find that that theory supports the appellant’s claim. In sum, the Veteran did not sustain any in-service incident, illness or injury, to include herbicide exposure, to which his causes of death, either direct or contributory, may be etiologically linked; nor did his renal failure manifest to a compensable degree within one year of separation from service. As such, the claim of service connection for the Veteran’s cause of death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to survivor's pension benefits based on countable income Inasmuch as the Board regrets any further delay in the adjudication of this claim, a remand is necessary to ensure the appellant has been afforded the opportunity to provide all necessary evidence in support of her claim. Basic entitlement to death pension benefits exists if (i) a veteran served for ninety days or more during a period or periods of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability based on wartime service; 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 (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. See 38 U.S.C. §§ 101, 1521(j), 1541; 38 C.F.R. § 3.3. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included except for listed exclusions. 38 U.S.C. § 1503 (a) (2012); 38 C.F.R. § § 3.260, 3.261, 3.262, 3.271(a) (2017). The gross income from a business or profession may be reduced by the necessary operating expenses. 38 C.F.R. § 3.262(a)(2). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272. Such income is therefore included as countable income. For purposes of calculating pension benefits, total countable income may be reduced by amounts equal to amounts paid by a recipient for unreimbursed medical expenses that were “in excess of 5 percent of the applicable maximum annual pension rate or rates for the veteran... as in effect during the 12-month annualization period in which the medical expenses were paid.” See 38 C.F.R. § 3.272(g)(1)(iii); 38 U.S.C. § 1503(a)(8). In short, the Board must consider all income received by the appellant. While regular expenses such as mortgage expenses or car payments will not reduce a claimant’s countable income, countable income may be reduced by any unreimbursed medical expenses paid during an applicable year which are in excess of 5 percent of her maximum annual pension rate (MAPR). For example, the MAPR for a single claimant without any dependents, effective December 1, 2013, was $8,485. Therefore, any medical expenses for that year more than $555 would then be used to reduce the claimant’s income. If the claimant’s income is reduced by those medical expenses to a degree that her countable income is below $8,485, then pension benefits could be granted. Given the appellant’s testimony before the undersigned and her submissions to date, the Board will remand this claim so that the appellant is given the opportunity to provide full disclosures of her income for any period on appeal since her claim was filed in September 2013. Specifically, she should be given the opportunity to report her monthly income, but also report any medical expenses which were not reimbursed, to include doctor’s visits, medications, insurance premiums or co-pays, Medicare or Medicaid expenses, home or assisted healthcare costs, or any other expenses which were paid by her for her own medical care since she filed her claim. The matter is REMANDED for the following action: 1. Invite the appellant to submit any additional evidence in support of her claim. Specifically, she should be requested to provide disclosures of her monthly income since her claim was filed, as well as any evidence of unreimbursed medical expenses which may be used to offset her countable income for the applicable periods on appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel