Citation Nr: A19002027 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190919-32065 DATE: October 17, 2019 ORDER Entitlement to service connection for cause of death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in June 2018 and the appellant is his surviving spouse; the certificate of death lists the immediate cause of his death as dementia without any additional causes. 2. At the time of his death, the Veteran was service-connected for Meniere’s syndrome with bilateral sensorineural hearing loss and tinnitus and major depressive disorder. 3. The weight of the competent and credible evidence is against a finding that the Veteran’s dementia is related to any service-connected disability or combination thereof. 4. The Veteran was not a former prisoner of war (POW) and was not in receipt of, or entitled to receive, compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from active service, or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of death are not met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. 2. The criteria for DIC benefits under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1942 to October 1945. He died in June 2018, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) was signed into law. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The appeal was processed under the AMA. The appellant elected the Direct Review lane, under which the Board reviews the claims based only on the evidence of record at the time of the prior rating decision. Entitlement to 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(a); 38 C.F.R. § 3.5(a)(1). 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. 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or is etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. 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. 38 C.F.R. § 3.312(c)(1). Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, even if the primary cause is unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases primarily causing death. 38 C.F.R. § 3.312(c)(3). In rendering a decision on 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § § 5107(b); 38 C.F.R. § 3.102. The Veteran died in June 2018. The immediate cause of death was listed as dementia. No contributory cause was listed. At the time of his death, the Veteran was service-connected for Meniere’s syndrome with bilateral sensorineural hearing loss and tinnitus with a 100 percent rating and major depressive disorder with a 50 percent rating. He had a total combined rating. For background purposes, August 2010 VA primary care records showed that the Veteran expressed concerns about memory loss. He cited difficulty recalling names and recent events. He continued to work, drive and manage his finances. The clinician assessed mild cognitive impairment. This assessment continued until approximately July 2014. July 2014 VA primary care records reported increased dementia symptoms following a stroke. May 2017 VA primary care records included an assessment of significant cognitive decline. The Veteran was considering moving into a residential medical facility. April 2018 VA Social Work records showed that the Veteran was admitted to a nursing home in February 2018. The admitting diagnoses were as follows: chronic obstructive pulmonary disease (COPD), chronic heart failure (CHF), dementia, peripheral vascular disease (PVD), prostatic hyperplasia, and kidney disease, stage 3. The Social Worker confirmed that the Veteran had a continuing need for nursing home care. As noted the Veteran died in June 2018 with dementia identified in the death certificate as the immediate cause of death and without any contributory cause. In March 2019, the RO obtained a VA medical opinion based upon review of the electronic claims folder. The physician furnished a negative medical opinion. He stated that major depressive disorder does not cause dementia and that the cause of dementia is multifactorial. He explained that dementia is a broad category of brain diseases causing a long term and often gradual decrease in the ability to think and remember. He reported that Alzheimer’s disease causes between 50 and 70 percent of dementia cases. Additional known causes include vascular dementia affecting 25 percent of cases, Lewy body dementia affecting 15 percent of cases and Pick’s disease or frontotemporal dementia. Less common causes include normal pressure hydrocephalus, Parkinson’s disease dementia and syphilis. In September 2019, the appellant’s son submitted a statement in support of the claim. He stated that the Veteran required the full-time assistance of the appellant since 2008 for medication, eating and toileting. Then, the son noted that the Veteran began having hearing loss shortly after separation. He later developed complete hearing loss with secondary disabilities of tinnitus and major depressive disorder. The son requested that consideration be given to the financial hardship of the appellant in caring for the Veteran and her current poor health. Based on the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted. The March 2019 VA medical opinion is probative evidence weighing against the claim because the physician explained the reasons for his conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). He considered the causes of dementia and explained why the Veteran’s service-connected major depressive disorder did not, in his opinion, cause his dementia based on an analysis of the various causes of dementia and the percentage of instances of dementia that result from various causes. Moreover, there is no conflicting competent opinion or evidence suggesting a possible service-related cause of death. The Board has considered the appellant’s assertions that the Veteran’s cause of death is related to service-connected Meniere’s syndrome with bilateral sensorineural hearing loss and tinnitus and/or major depressive disorder. However, the cause of death issue in this case is a complex medical question because dementia, the listed cause of death, is a complex internal disease process. While lay witnesses are competent to opine as to some matters of relating to diagnosis and etiology, they are not competent to opine as to complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Psychiatric disorders generally fall within the complex category. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Although the appellant believes that the Veteran's dementia is related to his service-connected disabilities, she is not competent to opine on this complex medical question. Here statements are therefore not competent evidence. To the extent the appellant’s statements are competent, the Board finds that the specific, reasoned opinion of the VA physician is of greater probative weight than the more general lay assertions of the appellant. The Board is sympathic to the appellant's contentions and must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103(a), but is, however, bound by the laws and regulations that apply to Veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Application of those laws and regulations to the facts of this case reflect that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999 and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of the statute and regulation, "entitled to receive" includes a situation in which the Veteran would have received total disability compensation at the time of death but for clear and unmistakable error (CUE) in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § 3.22(b)(1). The Veteran was discharged from active duty service in October 1945 and died in June 2018. The Veteran was in receipt of a 100 percent disability rating from February 10, 2015, a 70 percent disability rating from April 23, 2009, and 10 percent disability rating from February 28, 2008. The Veteran was at no time in receipt of a total disability rating due to individual unemployability (TDIU). Briefly, the Board notes that the Veteran filed a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in February 2015. However, his reported employment history indicates that he had gainful employment within 10 years of his death. Based on the foregoing evidence, the Veteran was continuously rated totally disabled for less than 10 years preceding his death; thus, does not meet the requirement, pursuant to 38 U.S.C. § 1318(b)(1), that the Veteran be continuously rated totally disabled for a period of 10 or more years immediately preceding his death. The Veteran was not in receipt of VA disability compensation until many years after his separation from service; thus, does not meet the requirement pursuant to 38 U.S.C. § 1318(b)(2) that he be continuously rated totally disabled for a period of not less than five years from the date of the veteran's discharge. In addition, the Appellant has not alleged any specific error in any prior final rating decision, which would rise to the level of an allegation of CUE. See Andrews v. Principi, 18 Vet. App. 177, 181 (2004) (holding that "[a] CUE allegation must identify the alleged error with some degree of specificity"). Therefore, there is no basis to find that the Veteran was entitled to receive total disability compensation at the time of death but for CUE in a decision on a claim filed during the Veteran's lifetime, pursuant to 38 C.F.R. § 3.22(b)(1). For the foregoing reasons, the Board finds that the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. The Appellant has not asserted that the Veteran met these requirements. Because the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met, and the evidentiary record has not shown that the Veteran was a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and it must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.