Citation Nr: 20030155 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 16-24 865A DATE: April 29, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to an effective date earlier than January 14, 2015, for the award of a 100 percent disability rating for bilateral hearing loss is denied. Entitlement to an effective date earlier than January 14, 2015, for the award of special monthly compensation based on loss of use, deafness of both ears, is denied. FINDINGS OF FACT 1. The Veteran died in June 2016 as a result of advanced hepatoma. 2. The Veteran’s hepatoma was not etiologically related to his active service. 3. At the time of death, the Veteran was service-connected for bilateral hearing loss, rated as 100 percent from January 2015. 4. The Veteran’s service-connected disability did not contribute substantially or materially to the cause of his death. 5. The Veteran was not in receipt of, nor entitled to receive a total disability rating for 10 continuous years prior to his death. 6. The Veteran was not continuously rated as totally disabled for the five-year period after his discharge from service. 7. The evidence of record does not reflect that the Veteran was a former prisoner of war. 8. The Veteran filed a claim for an increased rating for bilateral hearing loss on January 14, 2015. There was no pending claim for an increased rating prior to this date and an increase in disability is not factually ascertainable within one year prior to January 14, 2015. 9. The award of special monthly compensation was based on the grant of a 100 percent disability rating for bilateral hearing loss, which was effective January 14, 2015. CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by active service did not cause or contribute substantially or materially to the Veteran’s death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.5, 3.303, 3.312. 2. The criteria for entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for an effective date earlier than January 14, 2015, for the award of a 100 percent disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.85, Diagnostic Code 6100. 4. The criteria for an effective date earlier than January 14, 2015, for the award of special monthly compensation based on loss of use, deafness of both ears, have not been met. 38 U.S.C. §§ 1114(k), 5110; 38 C.F.R. §§ 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1950 to August 1952. He died in June 2016. The Appellant is the Veteran’s surviving spouse, who has been recognized as an eligible claimant for DIC benefits and valid substitute for the Veteran’s outstanding claims. (See July 2016 and February 2017 Notification letter). Initially, the Board notes that the Veteran’s service treatment records (STRs) are largely unavailable. The claims file reflects that the National Personnel Records Center (NPRC) in November 2008, determined that the Veteran’s service treatment records may have been destroyed in a fire. The Board acknowledges that when records in the possession of the government are unavailable through no fault of the Veteran, VA has a heightened obligation to assist the Veteran in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Cromer v. Nicholson, 19 Vet. App. 215 (2005). VA’s heightened duty to assist include searching for medical information from alternative sources in order to reconstruct the service treatment records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Jolley v. Derwinski 1. Vet. App. 37, 39-40 (1990). A response from NPRC dated May 2009 indicates that a search for the morning reports maintained by the Veteran’s unit was negative. In May 2009, the AOJ informed the Veteran of the status of his STRs and asked him to provide any in-service treatment record in his possession, as well as any alternative sources of evidence. The record does not reflect that such evidence was received by VA. In July 2009, the AOJ issued a formal finding on the unavailability of the Veteran’s STRs. Accordingly, the Board finds that all available records and medical evidence have been obtained in order to make an adequate determination as to the matter on appeal. Further, the Board briefly observes that the AOJ considered the Appellant’s DIC claim based on both service connection for the cause of the Veteran’s death and under 38 U.S.C. § 1318. Accordingly, to most accurately reflect the evidence of record, the Board has recharacterized the claim for DIC, as reflected in the Order section. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Service connection for the cause of death Dependency and indemnity compensation benefits (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; 38 C.F.R. § 3.5. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran’s death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 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, 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 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In this case, the Veteran died in June 2016. According to his death certificate, the cause of death was advanced hepatoma (hepatocellular carcinoma). The death certificate does not list any other principal or contributing causes of death. At the time of the Veteran’s death, service connection was in effect for bilateral hearing loss. The Veteran, however, was not service-connected for hepatoma or any other liver disability. He did not submit a claim for service connection for hepatoma or a liver disability during his lifetime. Further, the Appellant has not put forth a specific argument or theory as to how the Veteran’s cause of death is related to his active service or service-connected bilateral hearing loss. The record does not show, that the Veteran’s hepatoma originated in service or is otherwise etiologically related to his active service. Though the Veteran’s STRs are largely unavailable, his discharge examination report shows the abdomen and viscera were normal and does not reflect any reports or diagnosis of a liver condition. The Appellant stated that the Veteran was diagnosed with liver cancer in December 2014, more than 60 years after the Veteran’s separation from active service. (See January 2015 Care Coordination report.) November 2014 VA treatment records reflect a differential diagnosis of multicentric hepatoma based on diagnostic imaging that revealed hepatic lesions suspicious for neoplastic process and metastasis. Upon careful and compassionate review of the evidence of record, the Board finds that the Appellant is not entitled to service connection for the cause of the Veteran’s death. In sum, the Board finds that evidence of record, lay and medical, does not support or indicate the Veteran’s death was principally or contributorily caused by a disability that originated during his period of active duty was otherwise connected to his active service. There is simply no medical evidence showing a causal connection between the Veteran’s death and his active service or service-connected bilateral hearing loss. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran’s death. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notwithstanding the above decision, the Board does extend its sincerest condolences to the Appellant for her loss, as well as its highest appreciation to the late Veteran for his honorable service. 2. DIC under 38 U.S.C. § 1318 VA law provides that if a Veteran’s death is not determined to be service-connected, a surviving spouse or child may still be entitled to DIC benefits. Under 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse or child of a deceased Veteran in the same manner as if the death were service-connected if the Veteran was in receipt of, or entitled to receive, compensation for a service-connected disability that was: 1) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; 2) rated by VA as totally disabling continuously since the Veteran’s release from active duty and for at least 5 years immediately preceding death; or 3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war who died after September 30, 1999. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. The total rating may be based on the application of the criteria in the rating schedule or on individual unemployability. 38 C.F.R. § 3.22(c); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003). “Entitled to receive” means that at the time of death, the Veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the Veteran’s dependents; (2) VA was withholding the compensation under the authority of 38 U.S.C. § 5314 to offset an indebtedness of the Veteran; (3) the Veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the Veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA was withholding payments because the Veteran’s whereabouts were unknown, but the Veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22(b). In this case, the Veteran served on active duty from September 1950 to August 1952. As stated above, the Veteran died in June 2016. At the time of his death, service connection was in effect for bilateral hearing loss, rated as 20 percent from September 5, 2008, and as 100 percent, totally disabling, from January 14, 2015. The Board observes the Veteran did not initiate a claim for the above-noted service-connected disability prior to September 2008. As such, it is clear that the Veteran was not receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death, nor was he receiving or entitled to receive compensation for a service-connected disability that was rated by VA as totally disabling continuously since his release from active duty and for at least 5 years immediately preceding death. Additionally, there is no evidence showing the Veteran was a former prisoner of war. Further, it has not been shown nor has it been alleged that the Veteran was “entitled to receive” compensation for a service-connected disability rated totally disabling under any of the circumstances listed under 38 C.F.R. § 3.22(b) for the appropriate time requirements. In consideration of the foregoing, the Board concludes the Appellant’s claim for Dependency and Indemnity Compensation under 38 U.S.C. § 1318 must be denied. Where, as here, the law is dispositive, the claim must be denied because of a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to an effective date earlier than January 14, 2015, for the award of a 100 percent disability rating for bilateral hearing loss. Generally, the effective date of an award of an increased rating is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year preceding the date of receipt of a claim for increased compensation. 38 C.F.R. § 3.400(o)(2). In such case, the increase is effective as of the date the increase was factually ascertainable based on all evidence of record within one year prior to the receipt of the claim. However, if the increase occurred more than one year prior to the date of receipt of the claim, the increase is effective the date of receipt of the claim. Here, the AOJ granted service connection for the Veteran’s bilateral hearing loss by way of an October 2010 rating decision. The AOJ assigned an initial disability rating of 20 percent for the Veteran’s bilateral hearing loss, effective September 5, 2008. VA sent correspondence to the Veteran notifying him of this decision and appellate rights in November 2010. The October 2010 rating decision became final because the Veteran did not appeal the decision and new and material evidence was not received within a year of the decision. On January 14, 2015, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. In an April 2015 rating decision, the AOJ granted an increase to a 100 percent rating for bilateral hearing loss, effective January 15, 2015. The Veteran submitted a timely Notice of Disagreement with the effective date assigned for the 100 percent rating. Specifically, the Veteran contended that the 100 percent rating should be applied retroactively to September 8, 2005, the date of his original claim. Thereafter, in its June 2016 Statement of the Cases, the AOJ determined that an effective date of January 14, 2015, but no earlier was warranted for the 100 percent rating increase for bilateral hearing loss. After a review of the record, the Board finds the appropriate effective date for the grant of the 100 percent rating for bilateral hearing loss is the assigned effective date of January 14, 2015, the date the Veteran’s claim for increased compensation was received by VA. The Board notes the October 2010 rating decision became final and there was no pending claim for an increased rating prior to January 14, 2015. As stated above, an effective date for an increase in compensation can only predate the date of receipt of the claim if there is a “factually ascertainable” increase in the condition in the year prior to the date of the receipt of the claim. The Board has carefully reviewed the Veteran’s entire claims file, to specifically include all outpatient treatment records from the San Juan VA Medical Center within the one-year period preceding the date of receipt of the January 2015 claim for increased compensation. However, these records do not demonstrate a factually ascertainable increase in the severity of the Veteran’s bilateral hearing loss within the one-year prior to the date of the claim. The Board finds the preponderance of the evidence is against the assignment of an effective date prior to January 14, 2015, for the award of the 100 percent rating for bilateral hearing loss. The Veteran submitted his claim for increased compensation on January 14, 2015, and an increase in disability is not factually ascertainable within the one year prior to that date. Accordingly, an effective date prior to January 14, 2015, for the grant of the 100 percent rating for the Veteran’s bilateral hearing loss is not warranted. 4. Entitlement to an effective date earlier than January 14, 2015, for the award of special monthly compensation based on loss of use, deafness of both ears. A Veteran who, as the result of a service-connected disability has suffered deafness of both ears with absence of air and bone conduction, shall receive special monthly compensation under the provisions of 38 U.S.C. § 1114(k). Deafness of both ears with absence of air and bone conduction will be held to exist where examination in a Department of Veterans Affairs authorized audiology clinic under current testing criteria shows bilateral hearing loss is equal to or greater than the minimum bilateral hearing loss required for a maximum (100 percent) rating evaluation under the rating schedule. 38 C.F.R. § 3.350(a)(5). The Board finds that an effective date prior to January 14, 2015, is not warranted for special monthly compensation based on deafness of both ears, as this effective date is predicated on the effective date for the 100 percent evaluation for bilateral hearing loss. The Board has no statutory or regulatory authority to award service connection for a special monthly compensation unless there is a service-connected disability that meets the requirements specified at 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a). As noted above, there is no basis for awarding an effective date earlier than January 14, 2015, for the 100 percent disability rating for the Veteran’s bilateral hearing loss. Thus, the criteria for special monthly compensation based on deafness of both ears were not met prior to January 14, 2015. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. As such, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.