Citation Nr: 20032974 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 15-32 139 DATE: May 12, 2020 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran was rated totally disabled due to service-connected disability as of July 2, 2003. He died in November 2012. 2. The Veteran was not a former prisoner of war (POW). 3. The Veteran served in the Republic of Vietnam (RVN) during his active service. 4. The noted cause of the Veteran’s death was status epilepticus. 5. The preponderance of the evidence of record is against a finding that status epilepticus was due to the Veteran’s presumed exposure to herbicide agents while in RVN. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 2. The criteria for entitlement to service connection for the cause of the Veteran’s death are not met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran died in November 2012, and the appellant is his surviving spouse. In her Substantive Appeal (08/05/2015 VA Form 9), the appellant indicated that she wanted a Board hearing via video conference. The hearing was initially scheduled for November 2018. See 10/03/2018 Correspondence. The appellant informed the Agency of Original Jurisdiction (AOJ) that she was not prepared for the hearing and requested that it be rescheduled. See 12/26/2018 VA 21-0820. The hearing was rescheduled for January 2019. The appellant again communicated that she was not prepared, in part, because the case worker with her representative was ill. The hearing was again rescheduled for March 2019. See 01/29/2019 Correspondence. The appellant requested that the March 2019 date be changed to September 2019, as she was in the process of obtaining medical evidence to support her claim, to include a medical opinion. See 03/01/2019 VA 21-0820. The request was granted. See 08/05/2019 BVA Letter. In August 2019, the appellant requested that the hearing again be rescheduled. The reasons she proffered were her daughter’s pregnancy, and that she had seen some VA legislation that might help her claim. See 08/20/2019 VA 21-0820. VA has not received any additional evidence from the appellant, nor any additional information concerning a hearing. Hence, the Board deems her request for a hearing to have been withdrawn. See 38 C.F.R. § 704(e). The appellant’s representative also has not raised any issue as concerns a hearing. See 02/19/2020 Appellate Brief; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran had active service from March 1965 to December 1966. Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. 1. Entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied. Legal Requirements 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 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); 38 C.F.R. § 3.22(a). Discussion The Veteran died in November 2012. See 12/11/2012 Death Certificate. At the time of his death, the sole disability for which service connection was in effect was residuals of prostate cancer due to presumed exposure to herbicide agents. See 12/01/2000 Rating Decision – Narrative. In 2004, he was granted a total rating based on individual unemployability due to service-connected disability (TDIU), effective July 3, 2003. See 38 C.F.R. § 3.340, 3.341, 4.16; see also 09/08/2004 Rating Decision – Codesheet. As is evident, the Veteran’s TDIU was established less than ten years preceding his November 2012 death. Further, he died over 40 years after his separation from active duty service, and he was not a former POW. Hence, there is no legal basis for entitlement to DIC under 38 U.S.C. § 1318. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the claim for DIC under 38 U.S.C. § 1318 is denied as a matter of law. 2. Entitlement to service connection for the cause of the Veteran’s death is denied. The Veteran’s death certificate (12/11/2012 Death Certificate) lists the cause of death as status epilepticus with respiratory failure and progressive neurological decline/weakness as contributing causes. Legal Requirements Service connection for the cause of a Veteran’s death requires that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a Veteran’s death was service connected, his surviving spouse is generally entitled to DIC. See 38 U.S.C. § 101. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death or 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). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability 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)(3), (4). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Discussion A VA genitourinary examination report notes that the Veteran was diagnosed with prostate cancer in the 1990s and underwent a radical prostatectomy. The cancer had not metastasized and there was no follow-up. The Veteran did not report, nor did the examiner note, any neurological symptoms or condition. See 07/27/200 VA Examination; see also 11/09/2000 Medical Treatment-Non-Government Facility. In April 2003, the Veteran went to an emergency room secondary to symptoms he had experienced at work. While at the emergency room, noted diagnoses included cerebral vascular accident (CVA) (stroke) and ataxia. See 09/08/2003 Non-Government Facility. Non-VA Discharge Summary dated in 2012 note that the appellant reported that the last time the Veteran was truly his normal self was probably about 10 years prior, and that he had been in progressive neurological decline over the prior 3 to 4 years. See 03/13/2015 Non-Government Facility, 1st Entry, P. 5. The diagnoses at discharge were refractory status epilepticus, acute respiratory failure secondary to the epilepticus, and ongoing neurological decline of unclear etiology. As noted, he expired in November 2012. Id., P. 4-5. The AOJ arranged a medical review of the claims file, and the medical reviewer opined that the Veteran’s medical records did not indicate that his prostate cancer was an active issue at the time of his death in 2012. Hence, it was not at least as likely as not that it caused or materially contributed to his death. See 07/22/2015 C&P Exam. In an addendum, the examiner opined further that the Veteran’s prostate cancer residuals did not result in debilitating effects and general impairment of health that rendered the Veteran less capable of resisting the effects of other diseases or injury that may have been the primary cause of death. The examiner also opined that the Veteran’s stroke, CADISIL [an inherited cerebral condition that causes stroke and other impairments], and dementia were the conditions that caused his debilitating effects and general impairment of health. See 07/29/2015 C&P Exam. In her Substantive Appeal, the appellant asserted that the Veteran’s multiple medical conditions, not just one, were caused by his active service and caused his death. See 08/05/2015 VA Form 9. Although VA has not received any additional medical evidence from the appellant as she stated she would provide, the Board nonetheless notes that the Veteran’s earlier referenced Discharge Summary notes the appellant’s belief that the Veteran’s neurological decline was related to his exposure to herbicide agents while he was in the Republic of Viet Nam (RVN). There is no indication in the Veteran’s medical records that his treating physicians confirmed or agreed with the appellant’s lay opinion. Further, the Secretary, VA, in the Agent Orange Update 2012, specifically determined that a presumption of service connection based on exposure to herbicide agents in RVN is not warranted for stroke or neurodegenerative diseases (including Amyotrophic Lateral Sclerosis but excluding Parkinson's Disease). See 77 Fed. Reg. 47,924 (Aug. 10, 2012). Hence, the Board finds no factual basis for allowing the claim on the basis of the Veteran’s presumed exposure while in RVN; and, as noted, the appellant has not submitted or referred the Board to any evidence that would show service connection on a direct basis. See Combee, 34 F.3d 1039, 1043-44. The Board finds that the VA medical reviewer’s opinion and rationale is supported by the evidence of record and is unrefuted by any other competent evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board finds the reviewer’s opinions highly probative and attaches significant weight to them.   The Board finds that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.312. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.