Citation Nr: 20006576 Decision Date: 01/27/20 Archive Date: 03/05/20 DOCKET NO. 16-40 783A DATE: January 27, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The death certificate shows the cause of death was blunt traumatic injuries. 2. At the time of the Veteran’s death, he was service connected for major depressive disorder, type II diabetes mellitus, diabetic neuropathy of the right and left lower extremities, tinnitus, and erectile dysfunction associated with diabetes mellitus. 3. The preponderance of the evidence is against a finding that the Veteran’s death was caused or contributed by a disease or injury incurred in service, to include medications taken for such disease or injury. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1121, 1137, 1310, 1318, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1969 to January 1972. The appellant, who is the Veteran’s surviving spouse, had a hearing before the undersigned Veterans Law Judge in September 2019. Although the Veteran was retroactively granted a total disability rating based upon individual unemployability (TDIU) from June 6, 2013 to October 2, 2014, the Veteran is not entitled to Dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1318 because this total disability rating was not continuously received for five years from the date of discharge or for 10 years prior to the Veteran’s death. Entitlement to service connection for the cause of the Veteran's death 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. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that the disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). At the time of the Veteran’s death, he was service connected for major depressive disorder, type II diabetes mellitus, diabetic neuropathy of the right and left lower extremities, tinnitus, and erectile dysfunction. The evidence shows that the Veteran died in October 2014 due to blunt trauma injuries incurred in an accident. The report of the accident shows that the Veteran was a passenger in a trailer with a boat in tow. According to the driver, the boat began to leave the trailer, and the driver failed to negotiate the curve of the road. The trailer collided with several trees, and the boat separated from the trailer. The trailer ended up colliding with a large tree, where both the trailer and the boat came to final rest. Unfortunately, this accident is the cause of the Veteran’s death. At the September 2019 hearing, the appellant contended that the Veteran was taking medicine for his service-connected disabilities that caused him to fall asleep. It was her belief that if he was not on this medication, he would have been awake and able to stop the car accident that caused his death. After thoroughly reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The reasons follow. As noted above, the October 2014 death certificate lists the sole cause of death as blunt traumatic injuries. The October 2014 autopsy report, prepared immediately after the Veteran’s death, also lists the sole cause of death as blunt traumatic injuries. The autopsy report also lists the Veteran’s toxicology studies as noncontributory. The crash report stated the Veteran was a passenger in a vehicle where the driver lost control after failing to negotiate a curve of the road while he was looking to the rear after a boat being towed began to leave the trailer. The car’s front and passenger sides collided with several trees. A February 2016 VA examiner concluded that it was less likely than not that the medicine the Veteran was taking materially contributed to or caused the Veteran’s death by causing him to fall asleep. The VA examiner’s rationale for this negative nexus pointed to the cause of death, which were blunt traumatic injuries, as well as the autopsy report, which showed toxicology studies were noncontributory. This evidence goes against a finding that the Veteran’s medicine taken for his service-connected disability or disabilities caused or contributed to his death. Although the appellant claims that the cause of death is related to the Veteran’s service-connected disability or disabilities based on the medication he was taking, the preponderance of the evidence is against such a conclusion. It is speculative to conclude that had the Veteran been awake, he could have stopped the trailer from crashing. It is unclear if the Veteran was asleep at the time of the accident, as the accident report does not document this fact. Regardless, even if the appellant was informed by the driver, who survived the crash, that the Veteran was sleeping at the time the boat began to leave the trailer, it is speculative as to whether, if awake, he could have genuinely prevented the crash as a passenger in the vehicle. The medical opinion obtained shows a finding that the medication that the Veteran was taking was noncontributory to the cause of death, and the Board finds that this is the most probative evidence as to whether or not the Veteran’s service-connected disability or disabilities caused or contributed to his death. For all the reasons laid out above, the Board concludes that the preponderance of the evidence is against a finding that the appellant is entitled to service connection for the Veteran’s cause of death. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is sympathetic to the appellant’s loss and recognizes the Veteran’s honorable service to this country. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, Associate 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.