Citation Nr: 20007772 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 18-01 757 DATE: January 29, 2020 ORDER Entitlement to service connection for cause of the Veteran's death is denied. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in July 2017 from metastatic advanced carcinoma of the left lung, with underlying end stage Chronic Obstructive Pulmonary Disease (COPD), combined systolic and diastolic heart failure, Coronary Artery Disease (CAD), and hypertension. 2. The Veteran was not service connected for metastatic advanced carcinoma of the left lung, COPD, CAD, systolic and diastolic heart failure, or hypertension at the time of his death. 3. A service-connected disability was neither the principal nor a contributory cause of the Veteran’s death. 4. During his lifetime, the Veteran was awarded service connection for posttraumatic stress disorder (PTSD), with a 70 percent rating effective May 19, 2009, for a duodenal ulcer, with a 10 percent rating effective September 27, 1983, and for a left knee disability rated at 10 percent effective August 14, 2006. His combined disability rating was 80 percent from May 19, 2009, and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), which was effective May 19, 2009, less than 10 years prior to the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1154, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017). 2. The criteria for Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. §§ 3.22, 20.1106 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1952 to May 1954. He died in July 2017. The appellant claims as the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for cause of the Veteran's death. Service connection may be granted for the cause of the Veteran’s death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 C.F.R. § 3.312 (a) (2017). 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017). A contributory cause of death is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran’s death for compensation purposes, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). According to the Veteran’s death certificate, the immediate cause of death was metastatic advanced carcinoma of the left lung with underlying COPD, CAD, heart failure, and hypertension. There is no evidence that the appellant is challenging the immediate or underlying causes of death. During his lifetime, the Veteran was not service connected for lung cancer, COPD, CAD, heart failure, or hypertension and he never pursued service connection claims for those disabilities. At the time of his death, the Veteran was service connected for PTSD, a duodenal ulcer, and for a left knee disability. The appellant does not allege that the Veteran’s service-connected disabilities contributed to the Veteran’s death, and there is no evidence that either the primary or contributing causes of death began during service or are otherwise related to his active duty service. Neither the appellant nor the appellant’s representative has presented further evidence to support the appellant’s claim for service connection for the Veteran’s cause of death. Based on the foregoing, the Board finds that entitlement to service connection for the cause of the Veteran’s death cannot be granted in this case. As noted above, the evidence indicates that the Veteran’s primary and underlying causes of death did not manifest in service or, in the case of chronic disabilities, within any applicable presumptive period after service. Further, there is no competent medical evidence of an etiological link between the Veteran’s service and the disabilities that brought about his death. While service records indicate the Veteran sustained a chest injury in January 1954, the May 1954 separation examination described the lungs and chest and heart as normal. A September 1954 VA examination also described the cardiovascular system and respiratory system as normal. A November 1956 radiographic report noted the heart and lungs were normal and a VA examination in 1956 also noted no abnormalities of the heart or lungs. Furthermore, there is no competent evidence linking the heart or lung disabilities to service. Given the absence of any competent medical evidence that the Veteran’s death is in any way related to an in-service injury or disease, the preponderance of the evidence is against the claim for service connection. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107 (b). 2. Entitlement to DIC benefits pursuant to 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 in a decision on a claim filed during the veteran’s lifetime. 38 C.F.R. § 3.22 (b)(1). (Continued on the next page)   In the present case, the Veteran was discharged from service in May 1954. At the time of his death he had been awarded service connection for PTSD with a 70 percent rating effective May 19, 2009, for a duodenal ulcer, with a 10 percent rating effective September 27, 1983, and for a left knee disability rated at 10 percent effective August 14, 2006. His combined disability rating was 80 percent from May 19, 2009. The Veteran was also rated entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) which was effective May 19, 2009, less than 10 years prior to the Veteran’s death. The Veteran was not service-connected for any other disabilities during his lifetime. Furthermore, although clear and unmistakable error was claimed with respect to rating decisions issued prior to November 2007 was alleged, but that claim was denied in a February 2013 Board decision which was not appealed. Hence, 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. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits under 38 U.S.C. § 1318 are not met. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.