Citation Nr: 20008245 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 13-00 534A DATE: January 31, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran passed away in October 2010. The death certificate lists the immediate cause of death as Alzheimer’s dementia due to or because of a failure to thrive. No other conditions were listed as contributing to his cause of death. 2. At the time of his death, the Veteran had been granted service connection for bilateral hearing loss. The condition was evaluated as 100 percent disabling, effective June 19, 2006. 3. The evidence of record fails to show that the Alzheimer’s dementia which caused the Veteran’s death had its onset during active service or for many years, thereafter. 4. The preponderance of the evidence weighs against an etiological relationship between the Veteran’s service-connected bilateral hearing loss and his cause of death. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2018). 2. The criteria for establishing entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2014); 38 C.F.R. § 3.22 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from January 1942 to March December 1964. The Veteran passed away in October 2010. The Appellant is his surviving spouse. At the time of his death, the Veteran had been granted service connection for only one condition; bilateral hearing loss. As a preliminary matter, the Board observes that the Appellant’s claim was previously denied pursuant to a September 2015 Board decision. Thereafter, the United States Court of Appeals for Veterans Claims (CAVC or Court) issued a Memorandum Decision which reversed and remanded the Board’s decision. The opinion concluded that additional development was required, to include obtaining a VA opinion. Specifically, the Court directed consideration to possibility of a “nexus” between the Veteran’s bilateral hearing loss and his cause of death. In July 2017, the Board issued a remand decision which implemented CAVC’s directives. A VA opinion was obtained in October 2017. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection cause of death To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310 (2014); 38 C.F.R. § 3.312 (2018). In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, 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). Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312 (c)(3). In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for the cause of the Veteran's death The Appellant asserts entitlement to service connection for the Veteran’s cause of death. Specifically, she contends that his service-connected bilateral hearing loss was a contributory cause of his death. As discussed in more detail below, the preponderance of the evidence is against her contention. Review of the record indicates that the Veteran passed away in October 2010. At the time of the Veteran’s death, service connection had been granted for bilateral hearing loss. The condition was evaluated as 100 percent disabling, effective June 19, 2006. According to the death certificate, the immediate cause of death was listed as Alzheimer’s dementia due to or because of a failure to thrive. No secondary causes were indicated. The Board has fully reviewed the Veteran’s claims file, with an emphasis on the evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. After a careful review of the record, the Board finds that service connection for the cause of the Veteran’s death is not warranted. Service treatment records are silent for complaints of memory loss or a diagnosis of dementia. Post-service treatment records were sparse. However, in March 2011 a private physician acknowledged a longstanding treatment history with the Veteran. Within that capacity, an awareness of the Veteran’s severe bilateral hearing loss was indicated. Prior to death, he attempted to get out of bed unassisted despite the Appellant to remain there. It was suggested that the Veteran was unable to hear or understand the directive. Thereafter, the Veteran suffered a fall and fractured his hip. Four days later, he passed away. In multiple lay statements, the Appellant suggested that Veteran’s fall resulted from his inability to hear and understand her instructions. She contends that his hearing loss caused or substantially contributed to the Veteran’s dementia. Therefore, in the absence of the Veteran’s hearing loss, he would not have fallen and broken the hip, which ultimately led to his death. Pursuant to a July 2017 Board Remand Decision, which implemented the CVAC directive, a VA opinion was obtained. In October 2017, a VA examiner reviewed and evaluated the Veteran’s claim file. Thereafter, it was concluded it is less likely than not (less than 50 percent probability) that the Veteran’s service-connected bilateral hearing loss caused or substantially contributed to the disease process that caused his death (i.e., Alzheimer’s dementia and failure to thrive). In reaching the stated conclusion, the examiner acknowledged review of the private physician’s opinion. However, the opinion was dismissed as vague, without sufficient rationale or medical support. Moreover, the opinion failed to specifically or directly state that the Veteran’s significant hearing loss caused or contributed to his death, it merely implied a relationship. The opinion was deemed limited in its ultimate probative value as only the “barest of conclusions” were indicated and it failed to identify any evidence upon which the conclusions were based. No clinical data or other appropriate rationale was referenced. While the record suggests that the Veteran was significantly debilitated by hearing loss, there is no evidence that his symptoms led to or made worse other disease processes, such as Alzheimer’s dementia. Accordingly, the examiner concluded that the record evidence failed to show a casual linkage between the Veteran’s hearing loss and dementia. Further, the examiner indicated that bilateral hearing loss does not meet the diagnostic criteria for a contributory cause of the Veteran’s death. An additional VA opinion was obtained in August 2019. The examiner concluded that, after having reviewed the evidence of record, it was less likely than not that the Veteran’s hearing loss was a contributing factor to his death, as hearing loss in and of itself does not result in death. The Veteran’s significant hearing loss was recognized – however, there is no evidence of hearing aids or other listening devices that may or may not be worn when the Veteran was instructed to stay in bed. Hearing loss has not been determined to contribute materially to the Veteran’s death. Due to the Veteran’s 100 percent hearing loss disability, if aware, the spouse would have known not to provide verbal commands. Therefore, there is some degree of onus on the caregiver to use appropriate communication modes to relate instructions to the Veteran; however, we have no way to know of the Veteran’s ability to comprehend and follow directions at this stage of his life with the particular disease. Therefore, his hearing loss is less likely than not a contributing factor to his death. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Specifically, it recognizes the Appellant’s assertion that the Veteran’s hearing loss caused his dementia and impaired his ability to hear and understand her directives, which lead to the fall and broken the hip, and ultimately caused his death. However, the evidence of record does not support her contentions. Generally, a lay person is competent to report on observable symptoms and their onset. Lay assertions are not deemed competent as to complex medical questions or conclusions in the absence of a showing that such person possessed the training, credentials, or expertise required to render a medical diagnosis. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds the VA examiner’s opinion to be more probative as it was rendered by a competent medical professional and cited to accepted medical principles after review of the Veteran’s medical history. As previously indicated, the record fails to show any reference to memory loss, dementia, or related diagnoses during active service or within one year of separation. Furthermore, the Veteran’s death certificate lists his cause of death as Alzheimer’s dementia, a condition which developed decades after separation from active service. While a suggestion of a correlation between the Veteran’s service-connected bilateral hearing loss and his Alzheimer’s dementia was noted, there is no medical evidence to support that contention. Therefore, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s cause of death was not etiologically related to active service, to include as due to his service-connected bilateral hearing loss. Accordingly, the Board finds that the Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death must be denied. In reaching the above conclusions, the Board fully considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC in the same manner as if the Veteran’s death were service connected where it is shown that the Veteran’s death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) who 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) (2014); 38 C.F.R. § 3.22 (a) (2018). As previously indicated, at time of the Veteran’s death, he has not been granted service connection for memory loss, dementia or any related condition. Additionally, no causal linkage or nexus had been established between his cause of death and his service-connected bilateral hearing loss. The death certificate lists the Veteran’s cause of death as the Alzheimer’s dementia, a condition not found to be related to service. Therefore, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318 (2014). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the Appellant’s claim for DIC under 38 U.S.C. § 1318 (2014) is denied as a matter of law. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.