Citation Nr: 20011908 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 15-26 365 DATE: February 13, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. The claim of entitlement to Dependency and Indemnity Compensation pursuant to 38 U.S.C. § 1318 is moot. A rating in excess of 20 percent for type II diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran died in July 2015. His death certificate list ileus as the cause of death. 2. At the time of the Veteran’s death he was service-connected for coronary artery disease, evaluated as 30 percent disabling; and for type II diabetes mellitus evaluated as 20 percent disabling. The combined rating was 40 percent. 3. The cause of the Veteran’s death was related to his service-connected disorders. 4. The grant of entitlement to service connection for the cause of the Veteran’s death under the provisions of 38 U.S.C. § 1310 renders moot the appellant’s claim for entitlement to Dependency and Indemnity Compensation benefits under the provisions of 38 U.S.C. § 1318. 5. The evidence of record does not show that treatment of the Veteran’s type II diabetes mellitus requires regulation of activities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The appellant’s claim of entitlement to Dependency and Indemnity Compensation benefits under the provisions of 38 U.S.C. § 1318 is moot. 38 U.S.C. §§ 1318, 7104; 38 C.F.R. §§ 3.22, 20.101. 3. The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to May 1967. He died in July 2015. The appellant is his surviving spouse and she has been accepted as his substitute for purposes of processing his appeal for diabetes mellitus to completion. This claim arises from an appeal to a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for the Cause of the Veteran’s Death The appellant claims entitlement to service connection for the cause of the Veteran’s death. To establish service connection for the cause of a veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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, a causal connection must be shown. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran died in July 2015. His immediate cause of death was listed as ileus. There were no other significant conditions contributing to death. At the time of death, he was service-connected for coronary artery disease and diabetes mellitus. The appellant asserts that the Veteran’s coronary artery disease and diabetes mellitus caused the ileus, which caused his death. In June 2017, a VA examiner opined that there was no relationship between the cause of death and the Veteran’s active duty service. That examiner noted that the available objective evidence showed that it was less likely as not that the Veteran’s service-connected conditions materially or substantially contributed to his death, or that they caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease primarily causing death. The only justification offered is that the veteran had had a previous hospitalization for ileus in November 2014, and that neither of his service-connected conditions were noted to be involved in producing, or otherwise affecting the ileus in November 2014. Significantly, the VA examiner noted that the Veteran’s medical records were not identified for several months leading up to death, and therefore, it was not possible to determine how the diagnosis of ileus was determined, or what its cause may have been. The Board notes that this opinion does not adequately address whether cause of death was caused by service, as it does not offer any justification for how the Veteran’s service-connected conditions were not associated with his ileus. A November 2019 medical opinion from Dr. J.F., a forensic pathologist, contradicts the opinions of the VA examiner. Dr. F. indicated that she had reviewed the Veteran’s medical history and explained that the Veteran’s cause of death was due to his cardiovascular disease and diabetes. The doctor found that vascular and metabolic etiologies are potential causes of ileus; deducing that the Veteran’s coronary artery disease was the vascular etiological cause, and his diabetes mellitus, also the most common metabolic derangement associated with ileus, was the metabolic etiological cause. Dr. F. also noted that, given its severity, the Veteran’s coronary artery disease was likely the most significant contributor to his development of ileus. She opined that “to a reasonable degree of medical likelihood, and certainly more likely than not, that [the Veteran’s] death is due to atherosclerotic cardiovascular disease and diabetes mellitus, as immediate or significant contributory causes. The ileus described on the death certificate is merely a manifestation of these underlying disease.” The Board finds Dr. F.’s opinion more probative than the VA examination report, as it contains more detail and explanation, and is supported with multiple medical and scientific references. Accordingly, service connection for the cause of the death is granted. Dependency and Indemnity Compensation under 38 U.S.C. § 1318 The appellant has submitted a claim based on 38 U.S.C. § 1318, as an alternative theory of entitlement to the service connection for the cause of the Veteran’s death in seeking dependency and indemnity compensation benefits. In light of the grant of benefits described above, this claim is moot. Indeed, pursuant to 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994). Entitlement to VA benefits under 38 C.F.R. § 1310 is the greater benefit, and it is granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 U.S.C. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010). Indeed, the United States Court of Appeals for Veterans Claims has indicated that only if an appellant’s claim for service connection for the cause of the Veteran’s death is denied under 38 U.S.C. § 1310 is VA required to also consider an appellant’s claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122, 133-4 (2000). In light of the grant of service connection for the cause of the Veteran’s death, the claim for entitlement to benefits under 38 U.S.C. § 1318 is moot. Rating in excess of 20 percent for type II diabetes mellitus Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. An April 2014 rating decision granted service connection and assigned an initial rating of 20 percent effective March 28, 2013. The Veteran asserted he was entitled to a higher rating. The Veteran’s diabetes mellitus is rated under Diagnostic Code 7913. A 20 percent rating is assigned when diabetes requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when diabetes mellitus requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned for diabetes that requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The Veteran’s medical record shows that Veteran required insulin and restricted diet to manage his diabetes. However, his medical records do not show he had any recent hospitalizations for treatment of his diabetes or that a physician has placed him on any regulation of activities in order to control his diabetes mellitus. In June 2015, the Veteran was afforded a VA examination. The examiner indicated that the Veteran did not have any hospitalizations during the previous 12 months. The examiner indicated that the Veteran did not require regulation of activities. Additionally, visits for diabetic care were less than twice per month. While the Veteran was prescribed more than one insulin shot per day, as well as a restricted diet, no other treatment was prescribed. The claims file does not contain evidence that the Veteran requires regulation of activities for his diabetes mellitus. As such, a rating in excess of 20 percent cannot be assigned. (Continued on the next page)   Accordingly, a schedular rating in excess of 20 percent for type II diabetes mellitus is denied. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferrando 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.