Citation Nr: 1807595 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-13 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to the provisions of 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1950 to February 1953. He died in January 2013. The appellant in the current appeal is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota, that denied service connection for cause of death and denied entitlement to DIC under 38 U.S.C. § 1318. In November 2017, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in January 2013. The immediate cause of death listed on his death certificate is cardiopulmonary failure, encephalopathy, hypernatremia, and other listed significant condition contributing to death is craniopharyngioma. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), right foot cold injury, left foot cold injury, cold injury right ear, tinnitus, cold injury left ear, left leg cramps associated with left foot cold injury, right leg cramps associated with right foot cold injury, left hand peripheral neuropathy, right hand peripheral neuropathy, and chronic inactive pulmonary tuberculosis. The Veteran was in receipt of an award of total disability for individual unemployability (TDIU) effective from November 10, 2010. 3. Cardiopulmonary failure, encephalopathy, hypernatremia, and craniopharyngioma did not have their onset in service and are not shown to be causally or etiologically related to the Veteran's active service; cardiopulmonary failure, encephalopathy, hypernatremia, and craniopharyngioma did not manifest within one year after discharge from service. 4. The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously since his release from active duty and for at least 5 years immediately preceding death, nor was he a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1131, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 2. The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (West 2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5109 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). For a claim of service connection for the cause of the Veteran's death, 38 U.S.C. § 5103 (a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009). The notice should include: (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App at 352-53. In the instant case, VA's duty to notify was satisfied by a VCAA letter dated March 2013. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Here, the appellant was provided with the relevant notice and information in the March 2013 letter. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore any notice error was harmless). VA also satisfied its duty to assist the development of the claims. This duty includes assisting the appellant in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The claims file contains the Veteran's service treatment records (STRs), private treatment records, and lay statements from the appellant. Here, the appellant has not identified any additional, relevant, available evidence. Therefore, the Board concludes that VA has made reasonable efforts to obtain all records relevant to the claims. VA medical opinions were also provided in January 2015 and April 2015. The VA medical examiners did in fact take into consideration the totality of the record, including the private medical records submitted by the appellant. The Board finds that the medical opinions adequate to decide the merits of the case because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed findings examination including relevant medical and peer-reviewed literature. See 38 C.F.R. § 3.159(c)(4) (2017); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Neither the appellant nor her representative has advanced any additional procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..."). As VA satisfied its duties to notify and assist, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103, 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claims. II. Service Connection for Cause of Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312(a). To establish service connection for the cause of a Veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. A service-connected disability will be considered as the principal, or 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). Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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); Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In order to establish service connection, a claimant must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Evidence and Analysis The Veteran passed away in January 2013, and his widow, the appellant, contends her husband's death should be considered due to service-connected disability, notably the Veteran's chronic inactive pulmonary tuberculosis. See Hearing Transcript, November 2017. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), right foot cold injury, left foot cold injury, cold injury right ear, tinnitus, cold injury left ear, left leg cramps associated with left foot cold injury, right leg cramps associated with right foot cold injury, left hand peripheral neuropathy, right hand peripheral neuropathy, and chronic inactive pulmonary tuberculosis. No autopsy was performed. Cardiopulmonary failure, encephalopathy, and hypernatremia were the primary causes of death, and craniopharyngioma was listed as a contributing condition. The Veteran was not service connected for any of the conditions listed in the death certificate as the cause of death or as other significant conditions contributing to the Veteran's death. Additionally, there is no evidence that those conditions causing the Veteran's death manifested to a compensable degree within one year of separation from service. Therefore, a preponderance of the evidence is against finding the Veteran's death was directly caused by the Veteran's service-connected disabilities. However, his widow contends the Veteran died from residuals of the Veteran's lung disability, that the strain of having a portion of his lung missing for 60 years was a contributing factor in his final cardiopulmonary failure. The Veteran's widow asserted that he had a portion of his left lung removed in 1953 and that living with a diminished capacity in the left lung for almost 60 years had contributed to the cause of death of the Veteran. The Board notes the resection of the portion of the left lung was related to the Veteran's tuberculosis, for which he was treated for upon exiting service in 1953. The Veteran's private medical records indicate that the Veteran was admitted to the hospital with hypernatremia, an abnormally high concentration of sodium, on January 1, 2013. The Veteran's VA medical records show the Veteran had been diagnosed with craniopharyngioma, a form of brain tumor, and treated with radiation therapy in 2010 and 2012. VA provided a January 2015 medical opinion as the cause of death of the Veteran. After reviewing the complete claims file, to include all of the medical records of the Veteran, the examiner opined the claimed condition for the cause of death was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's extensive rationale first discussed the Veteran's medical history, noting the separation examination of February 24, 1953 contained a chest x-ray that showed scarring in the left apical and subapical areas of the lung, related to old tuberculosis. The examiner noted the Veteran was considered asymptomatic at the time of service separation in 1953 and he had a negative tuberculosis skin test, and assessed the inactive tuberculosis had been in the left lung apex. The examiner noted the Veteran's history was negative for respiratory symptoms such as shortness of breath, pain or pressure in the chest, chronic cough, palpitations, night sweats, or symptoms of infection. The Veteran was referred for an inpatient evaluation at the Minneapolis VA and hospitalized there from March 5, 1953 to March 17, 1954. During that period, a left lung upper lobe resection was carried out, and subsequent bacteriology was negative. On discharge, the Veteran's diagnosis was pulmonary chronic tuberculosis, minimal, with no symptoms. Follow up care in December 1954 indicated no lung or respiratory complaints, and no symptoms such as cough, loss of weight, or night sweats. The tuberculosis was deemed minimal and arrested, and his last tuberculosis skin test was negative in 1998. As a result, this examiner considered the Veteran's tuberculosis condition to be inactive and asymptomatic. This January 2015 examiner also noted that July 2000 medical records indicated the Veteran had smoked for 50 years at a rate of approximately two packs per day, and had quit around 1995. The examiner also noted the Veteran had a brain tumor and that he had a diagnosis of chronic obstructive pulmonary disorder (COPD). A chest ex-ray in February 2001 confirmed the COPD. The Veteran's last chest x-ray was in October 2012, approximately 3 months prior to death, and showed minimal pleural thickening in the left upper lobe and minimal scarring in the right lung apex, but that otherwise the lungs were clear. Thus, this examiner concluded, the Veteran's tuberculosis was inactive and asymptomatic as of 1954 and there was no evidence or progression as noted on repeated chest x-rays, and thus was not a primary or contributory cause of death for the Veteran in January 2013. VA provided another medical opinion in April 2015, to specifically answer the question: did the veteran's service connected tuberculosis, specifically the resection of the left lung apical segment, contribute to the cause of death by resulting in 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 that primarily caused death? Here, the April 2015 VA examiner's opinion was it is less likely as not that the veteran's service connected tuberculosis, and specifically the resection of the left lung apical segment, contributed to the cause of death, or aided substantially in causing his death, or resulted in debilitating effects and general impairment of health that would render the person materially less capable of resisting the effects of other disease or injury that primarily caused death. The examiner's rationale was that resection of left upper lobe carried out in June 1953 resulted in lung tissue that was negative for acid fast bacilli. On follow up in December 1954, there were no complaints or symptoms noted. The Veteran's medical records indicate that his tuberculosis remained inactive after this resection, and also that he was asymptomatic after that. In the VA examiner's remarks, the Veteran did well following treatment for left apical scarring, and resection. There were no signs of reactivation of his tuberculosis, no further treatment for tuberculosis, and no reported complications from his resection of the left apical segment. Per the examiner, "it is very less likely as not that his TB with resection contributed to his death, or caused any subsequent impairment as to result in disability or resulting in loss of resistance to the effects of other diseases or injuries. There was no medical evidence of recurrence, complications or progression noted on follow up chest x-rays." This examiner concluded by noting a chest x-ray from October 2012 showed only minimal pleural thickening in the left upper lobe which is 59 years after his resection and clearly shows no complications or further impairments of his left lung by his previous tuberculosis with resection of the left upper apical segment. This examiner also noted the Veteran's substantial history of cigarette smoking and that he had smoked for 50 years at a rate of 2 packs a day. COPD was diagnosed after a chest x-ray in February 2001, and the examiner opined that the Veteran's significant smoking history (100 pack years) was much more likely to have resulted in debilitating effects and general impairment of health and contributing to acquiring other disease processes, which contributed to his death by cardiopulmonary failure. The Board notes that while the Veteran's chronic inactive pulmonary tuberculosis was diagnosed in service and treated subsequent to active service, that the Veteran's rating for this disability was reduced to noncompensable from December 9, 1965 forward because it was inactive and asymptomatic. The appellant has contended that the service-connected chronic inactive pulmonary tuberculosis contributed the Veteran's death. The appellant is competent to testify what she observed, but not to provide a medical opinion. The Board finds that the appellant, as a layperson, does not have the requisite medical knowledge, training, or experience to render a competent medical opinion regarding the Veteran's cause of death. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Although the appellant is competent to testify as to her observations, whether the Veteran's service-connected disability or disabilities primarily caused or contributed to his death is a complex medical etiological question involving internal and unseen system processes unobservable by the appellant. See Jandreau, 492 F.3d at 1376-77. For these reasons, the Board finds that a preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, 1 Vet. App. 49, 55; 38 U.S.C. § 5107(b) (West 2012). III. Entitlement to DIC under 38 U.S.C. § 1318 The Veteran died in January 2013. Cardiopulmonary failure, encephalopathy, and hypernatremia were the primary causes of death, and craniopharyngioma was listed as a contributing condition. The Veteran was not service connected for any of the conditions listed in the death certificate as the cause of death or as other significant conditions contributing to the Veteran's death. 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 five 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 (POW) who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318. In order for DIC benefits to be awarded to the appellant under the provisions of 38 U.S.C. § 1318, it must be established that the Veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). At the time of his death, the Veteran was service connected for PTSD with a rating of 30 percent disabling, right foot cold injury with a rating of 20 percent disabling, left foot cold injury with a rating of 20 percent disabling, cold injury right ear with a rating of 10 percent disabling, tinnitus with a rating of 10 percent disabling, cold injury left ear with a rating of 10 percent disabling, left leg cramps associated with left foot cold injury with a rating of 10 percent disabling, right leg cramps associated with right foot cold injury with a rating of 10 percent disabling, left hand peripheral neuropathy with a rating of 10 percent disabling, right hand peripheral neuropathy with a rating of 10 percent disabling, and chronic inactive pulmonary tuberculosis with a noncompensable rating. TDIU was granted from November 20, 2010. At the time of his death, the 100 percent rating was only in effect for two years and two months. It is undisputed that the Veteran was not a former POW and, because he was discharged from active duty in February 1953, the 5-year rule of 38 U.S.C. § 1318 has not been satisfied. Accordingly, the criteria for establishing DIC under 38 U.S.C. § 1318 have not been met, and the claim is denied as a matter of law. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for the Veteran's cause of death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs