Citation Nr: 1819952 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 14-27 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to June 1993. He died in 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Agency of Original Jurisdiction (AOJ) is Houston, Texas. The appellant testified before the undersigned Veterans Law Judge in January 2017 at a Travel Board hearing. A transcript of the hearing has been associated with the file. FINDINGS OF FACT 1. The Veteran's death certificate lists the immediate causes of death as suspected aspiration pneumonia due to restrictive airway disease, clostridium difficile colitis - total colectomy, and hypoxia. Other significant conditions were scleroderma, malnutrition, and recurrent infections. 2. The Veteran did not have a diagnosis of scleroderma during service or within one year after his discharge from service. 3. Service connection was not in effect for any disabilities at the time of the Veteran's death. 4. The Veteran's cause of death was not incurred in or otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has satisfied its duties under the Veterans Claims Assistance Act of 2000 to notify and assist. VA's duty to notify was satisfied by a July 2011 letter informing the appellant of the evidence generally needed to support her claim. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §3.159. VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, along with VA, Social Security Administration (SSA), and private medical records. The duty to obtain relevant records is satisfied. VA's duty to assist also includes obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). In this case, the Board finds that the record is full and complete, and sufficient to make a just and equitable determination. Service Connection for Cause of Death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. 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). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312 (a). A principal cause of death is one in which a service-connected 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 which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it 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). Additionally, service connection for certain chronic diseases, including scleroderma, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C. §§ 1101 , 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307 , 3.309 (2017). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39 - 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is responsible for determining whether the evidence supports the claim, with the appellant prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran's death certificate lists the immediate causes of death as suspected aspiration pneumonia due to restrictive airway disease, clostridium difficile colitis - total colectomy, and hypoxia. The death certificate also lists scleroderma, malnutrition, and recurrent infections as other significant conditions. At the hearing, the appellant testified that during service, the signs and symptoms of the Veteran's scleroderma manifested as back pain, lower abdominal pain, and rashes. She asserted that the Veteran was misdiagnosed for many years, but was formally diagnosed with scleroderma in 2004. The appellant and her son testified that after service, the Veteran had skin rashes, complained of back pain, and had joint aches. The appellant stated that after the Veteran died, a skin biopsy and autopsy were not performed. At the time of the Veteran's death, he had no service-connected disorders. In-service medical history and examination reports from July 1991 indicate the Veteran was in normal health. Service treatment records from August 1992 show he sought treatment for back pain that had last for two and a half months, blood in his stool for one day, pain in his left lower abdominal, and a groin rash that was present for nine months. He was treated for an anal fissure and possibly an inflamed hemorrhoid. His service separation medical history and examination reports from June 1993 show the Veteran's health was normal. The earliest dated post-service medical records in the file are from 2007, but it was noted that the Veteran had scleroderma since December 2004 - approximately 11 years after service. The file contains extensive medical records documenting the Veteran's decline in health from 2007 through 2011. In addition to several other medical conditions, the Veteran had rapidly progressing systemic scleroderma with gastrointestinal involvement and skin changes. During the week before his death, the Veteran underwent a total colectomy with ileostomy. Ultimately, the Veteran and his family requested the withdrawal of medical care. The preponderance of the evidence is against the claim. The Veteran was not diagnosed with scleroderma either in service or within one year of separation. The August 1992 service treatment records do not indicate the Veteran had a more significant medical condition beyond the fissure and hemorrhoid issues he was assessed to have at the time. Further, he did not return for additional treatment during service and indicated he had normal health upon discharge. There are no medical records within the file dated between 1993 and 2007 to support the contention that the Veteran had scleroderma symptoms shortly after service. The appellant testified, and the medical records show, that it was more than 10 years after service when the Veteran became ill in 2005. It is clear that the appellant believes that the Veteran's death was caused by some aspect of his service. However, the appellant's opinion as to service connection is not probative. As a lay person, she lacks the necessary medical expertise to establish that the Veteran's scleroderma is etiologically related to his service and death. See Layno, 6 Vet. at 469. The appellant has not provided any probative medical evidence that shows the Veteran's scleroderma was connected to his military service to support her cause of death claim. The claim for service connection for cause of death is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs