Citation Nr: 18100613 Decision Date: 04/17/18 Archive Date: 04/17/18 DOCKET NO. 14-30 585 DATE: April 17, 2018 ISSUES DECIDED: 3 ISSUES REMANDED: 0 ORDER Entitlement to accrued benefits for service connection for skin growth on the arm is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to additional burial benefits is denied. FINDINGS OF FACT 1. The Veteran served in Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicide agents such as Agent Orange. 2. The evidence is against a finding that the skin disorder diagnosed after service is related to the Veteran’s service including exposure to herbicide agents, and no disorder may be presumed to be the result of herbicide agent exposure. 3. The Veteran’s death certificate shows that he died in February 2012 at the age of 83. The immediate cause of death was hypoxic respiratory failure, due to probable pulmonary embolism. No other medical condition was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 4. At the time of the Veteran’s death his service connected disabilities were: coronary artery disease, degenerative disc disease of the lumbosacral spine, residuals of prostate cancer surgery, sciatica of the right lower extremity, sciatica of the left lower extremity, tinnitus, and hearing loss. 5. There is no credible evidence opinion linking the Veteran’s fatal conditions, with his service-connected disabilities or his active military service; the medical opinions of record indicate that the Veteran’s death is unrelated to service or any service-connected disability. 6. The Veteran’s cause of death is not service-connected and transportation costs were not incurred for the Veteran’s burial. 7. The Veteran did not die while hospitalized by the Department of Veterans Affairs (VA) in a VA or non-VA facility. CONCLUSIONS OF LAW 1. The criteria for the award of accrued benefits for a skin disorder have not been met. 38 U.S.C. §§ 1110, 5121 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2017). 2. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2017). 3. The criteria for entitlement to additional nonservice-connected burial benefits have not been met. 38 U.S.C. §§ 2302, 2303, 2307 (2012); 38 C.F.R. §§ 3.1700 to 3.1706 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the widow of a Veteran who served on active duty from September 1948 to September 1953 and from May 1966 to May 1981, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the VA Regional Office (RO) in St. Louis, Missouri. 1. Accrued Benefits for Service Connection for Skin Growths on the Arm Accrued benefits are periodic monetary benefits, other than insurance and servicemen’s indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. While an accrued benefits claim is separate from a veteran’s claim filed prior to death, the accrued benefits claim is derivative of the veteran’s claim; thus, an appellant takes the veteran’s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). “[A] pending claim” is defined as “an application, formal or informal, which has not been finally adjudicated.” 38 C.F.R. § 3.160(c) (2014). The Veteran died in February 2012. At the time of his death he had a claim pending for entitlement to service connection for what he claimed were cancerous growths on his arm. In August 2010 he filed a statement which served as his claim for service connection. In the pertinent part it stated “Possible connection to Agent Orange exposure in Vietnam?? Also had cancerous growth removed on arm, with several more to be removed this week.” The RO addressed this as a claim for service connection for the skin growths due to Agent Orange exposure during service. The appellant’s claim for accrued benefits is based upon the resolution of the underlying claim for service connection. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA regulations provide that if a veteran was exposed to an herbicide agent such as Agent Orange during active service, as this Veteran was during his service in Vietnam, presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin’s disease; Ischemic heart disease; All chronic B-cell leukemias; multiple myeloma; Non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma. 38 C.F.R. §§ 3.307, 3.309(e). Service connection can also be established with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). A review the Veteran’s medical records show that he had been treated for a variety of skin disorders over the years including: tinea; seborrheic keratosis; adhesions; angiomas; and a benign neoplasm of the skin. Private treatment records dated in 2010 show that the Veteran was treated for an irritated skin lesion on the left forearm, assessed as a pigmented changing skin lesion. Biopsy results confirming skin cancer were not included in the records received. Simply put, none of the skin disorders which the Veteran was diagnosed with warrant presumptive service connection based on his exposure to herbicide agents during service under 38 C.F.R. § 3.309(e). Moreover, with the exception of the Veteran’s assertion in his claim, there is no evidence suggesting a link between any of the Veteran’s diagnosed skin disorders and his military service to include herbicide agent exposure during service. Importantly, the Veteran had a normal skin evaluation at his retirement examination. In a report of medical history completed by the Veteran in connection with his retirement examination he stated he had not had any skin diseases. Absent competent evidence suggesting a link between service and one of the skin disorders diagnosed post service, service connection for a skin disorder must be denied and entitlement to accrued benefits cannot be awarded. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 2. Entitlement to Service connection for the Cause of Death Dependency and indemnity compensation is available to a surviving spouse who can establish that the Veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of the Veteran’s death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (2012). A service-connected disability is the principal cause of death when that 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). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and 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. 38 C.F.R. § 3.312(c). Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. The Veteran’s death certificate shows that he died in February 2012 at the age of 83. The immediate cause of death was hypoxic respiratory failure, due to probable pulmonary embolism. No other medical condition was listed as a significant condition contributing to death but not resulting in the underlying cause of death. At the time of his death, the Veteran’s service connected disabilities were: coronary artery disease, degenerative disc disease of the lumbosacral spine, residuals of prostate cancer surgery, sciatica of the right lower extremity, sciatica of the left lower extremity, tinnitus, and hearing loss. The appellant claims that the Veteran’s service-connected coronary artery disease caused or contributed to his death. Review of private medical records reveal that the Veteran’s service-connected coronary artery disease was being followed and treated by his medical care providers. However, there is no evidence linking the Veteran’s fatal condition to his service-connected coronary artery disease in these records. Quite the opposite, the terminal hospital treatment records dated in January and February 2012 indicate that he was admitted to the emergency room following a fall injury and that he was hypoxic at the time. The record specifically acknowledges the Veteran’s coronary artery disease but notes no history of heart failure and no symptoms of chest pain and shortness of breath that would be present with an exacerbation of the heart disease. A July 2014 VA medical opinion indicates that the physician reviewed the Veteran medical records including the terminal hospitalization records. The physician’s medical opinion was that it is less likely than not that Veteran’s service-connected coronary / ischemic heart disease was either the principal cause of death or a contributory cause of death. The medical opinion was supported by a rationale referencing the Veteran’s medical treatment records and explaining why in this case the pulmonary embolism that resulted in the Veteran’s death was not related to the service-connected coronary artery disease. There is no evidence which in any way counters this medical opinion. Upon review of all of the evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran’s fatal hypoxic respiratory failure, due to probable pulmonary embolism, was related to service or any service-connected disability. There is no evidence in the service treatment records to support direct causation. To the extent that the appellant submitted medical records related to the Veteran’s terminal hospitalization they do not link the Veteran’s fatal hypoxic respiratory failure to his service-connected coronary artery disease or any other service-connected disorder; a VA physician’s opinion has indicted that they the Veteran’s death was unrelated to his service-connected disabilities. There is insufficient evidence to alternatively support any link between the Veteran’s fatal medical conditions and either service or his service-connected disabilities. The weight of the evidence is against the claim. The weight of the evidence establishes that a disability incurred in or aggravated by service did not cause or contribute to the Veteran’s death, and thus service connection for the cause of his death is not warranted. The preponderance of the evidence is against the claim; thus the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 3. Additional Burial Benefits A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a Veteran and the expense of transporting the body to the place of burial. 38 U.S.C. §§ 2302, 2303, 2307; 38 C.F.R. §§ 3.1700, 3.1704, 3.1705, 3.1706. The appellant has claimed entitlement to additional burial benefits. Payment of burial allowance, including transportation expenses, may be paid to the person whose personal funds were used to pay such expenses. The record reflects that the appellant has already been paid the standard nonservice-connected burial benefit. See 38 U.S.C. § 2302; 38 C.F.R. § 3.1704. While a higher amount of burial benefits could be awarded if the Veteran’s death were service-connected, as discussed above that is not the case here. See 38 C.F.R. § 3.1704. Likewise, the Veteran did not die while hospitalized by VA. See 38 C.F.R. § 3.1706. Records from the funeral home indicate that the appellant was billed for the veteran’s funeral, which was paid in full, and that no transportation expenses were charged as the veteran passed away within a 55 mile radius of the funeral home. Accordingly additional benefit payment for transportation charges is not warranted as no such charges were incurred. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel