Citation Nr: 20042017 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 15-37 756 DATE: June 19, 2020 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in January 2014. His death certificate lists aspirational pneumonia due to right lower lobe community-acquired pneumonia as the immediate cause of death. 2. At the time of his death, the Veteran was service-connected for residuals, gunshot wound penetrating thorax, right posterior, injury to Muscle Group XXI. 3. The Veteran’s aspirational pneumonia due to right lower lobe community-acquired pneumonia did not manifest during active duty service and is not related to service. 4. The Veteran’s service-connected disability was not the primary or contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 1312, 5107 (b)(2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.310, 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from March 1943 to October 1945 and from October 1950 to September 1951. He died in January 2014. The appellant is the Veteran’s surviving spouse. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was remanded in April 2019 for additional development, including obtaining a VA medical opinion which was accomplished in December 2019. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. VA’s Duty to Notify and Assist. The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a). Neither the appellant nor her representative have identified any shortcomings or alleged prejudice in fulfilling VA’s duty to notify and assist. The Board is not required to search the record to address procedural arguments that a claimant has not raised. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In light of the foregoing, nothing more is required. 2. Entitlement to service connection for the Veteran's cause of death. The appellant contends that the Veteran’s cause of death was due to his military service. A grant of 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 it. 38 U.S.C. §§ 1310, 1312; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal (primary) cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to it. 38 C.F.R. § 3.312 (b). A service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided the production of death. 38 C.F.R. § 3.312 (c)(1). The debilitating effects of a service-connected disability must have made a veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. Lathan v. Brown, 7 Vet. App. 359 (1995). Generally, service connection will be granted if the evidence demonstrates (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310 (b). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). While the Board expresses great sympathy for the appellant’s loss, the preponderance of the evidence shows that service connection for the Veteran’s cause of death is not warranted. Therefore, the claim of entitlement to service connection for cause of death is denied. The Death Certificate lists aspirational pneumonia due to right lower lobe community-acquired pneumonia as the cause of death. The Veteran was not service-connected for aspirational pneumonia due to right lower lobe community-acquired pneumonia at the time of his passing. Nonetheless, DIC entitlement may be shown if the requirements of service connection are met for the cause of death. The Veteran was only service-connected for one disability. This disability was residuals, gunshot wound penetrating thorax, right posterior, injury to Muscle Group XXI, rated at 20 percent. The Board notes that the Veteran had pending claims for service connection for various conditions at the time of his death, including bronchial asthma. A Statement of the Case was issued in November 2019, denying service connection for bronchial asthma, among other issues. The appellant did not perfect an appeal of this determination to the Board; therefore, this condition is considered non-service connected and cannot be used to establish service connection for the Veteran’s cause of death. A review of the Veteran’s service treatment records (STRs) shows no complaints or treatment for aspiration pneumonia or community-acquired pneumonia. Clinical examination was normal on enlistment and separation. A review of the post-service VA and private treatment records show that the Veteran experienced bilateral pneumonia in March 2008 and January 2011, many years after his discharge from service. The Board notes that the Veteran submitted medical nexus opinions in December 2010 and September 2012 that attributed his lung issues (asthma) to military service based on his claimed in-service chemical exposure resulting from his graves registration duties. These opinions do not specifically address whether the Veteran’s cause of death was due to lung issues relating from military service. The Board finds that they are of significantly low probative value, as they are (1) based on the Veteran’s self-reported history without a review of the pertinent evidence of record, and (2) no rationale was provided for these opinions. The Board notes that none of the Veteran’s treating physicians have specifically given a positive opinion that the cause of death was either due to military service or his service-connected disability. A VA medical opinion was issued in December 2019. The examiner gave a negative opinion that the Veteran’s service-connected disability caused or contributed to his death. The examiner noted that the death certificate indicated that the primary cause of death were "complicated by aspiration pneumonia" and "right lower lobe community acquired pneumonia (organism unknown).” The examiner also noted that community-acquired pneumonia is defined as pneumonia that is acquired outside the hospital with the most commonly identified pathogens being Streptococcus pneumoniae, Haemophilus influenzae, and a number of viruses. The examiner further noted that aspiration pneumonia is a type of lung infection that is due to a relatively large amount of material from the stomach or mouth entering the lungs with risk factors including decreased level of consciousness, problems with swallowing, alcoholism, tube feeding, and poor oral health. The examiner then found that the Veteran’s service-connected disability has not been found to cause either infection of the lungs, worsen infections of the lung, cause regurgitation of food particles from the stomach into the esophagus and back down into the trachea, or suppress the cough reflex to prevent food particles descending into the trachea. The examiner then reviewed the original 1944 treatment notes which revealed a shrapnel wound from artillery while serving in France in 1944. However, the examiner found no evidence that the shrapnel wound actually entered the lung tissue as the notes from this time period appear to indicate that the metal was stopped from penetrating further after hitting a rib and fracturing it. The examiner then found that the absence of any evidence during or in the decades following the shrapnel of chronic lung sequelae suggests the high unlikelihood that a residual lung condition developed such that it would predispose an individual to infection. The Board finds that this VA opinion is of probative value, as it was based upon a complete review of the evidence of record and consideration of the appellant’s lay statements and contentions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). This opinion is also probative because it is based on an accurate medical history and provide an explanation that contain a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A rationale for the opinion was provided. The Board finds that there is no competent evidence linking the service-connected residuals, gunshot wound penetrating thorax, right posterior, injury to Muscle Group XXI was a principal or contributory cause of death. There is no evidence on record that suggests an etiological connection between the Veteran’s service-connected disability and aspiration pneumonia or community-acquired pneumonia. Accordingly, service connection for the cause of the Veteran’s death cannot be established on this basis. Additionally, the medical evidence of record does not indicate that the Veteran developed aspiration pneumonia or community-acquired pneumonia during service. Indeed, the medical evidence demonstrates that he developed aspiration pneumonia and community-acquired pneumonia many years after discharge from service. As such, there is no evidence relating any of these terminal conditions to service. Consequently, service connection is not warranted for any of the illnesses that caused the Veteran’s death. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The appellant contends that the Veteran’s cause of death was the result of his military service. While the appellant may be credible to describe the particular symptoms which she observed, determining the exact nature and diagnosis of aspirational pneumonia or community-acquired pneumonia requires specialized testing and medical knowledge or training which the appellant is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, her opinion as to the whether the cause of the Veteran's death was linked to active duty is without probative value. The appellant has not submitted any corroborating evidence to support her contentions, such as medical records or medical treatises demonstrating a link between the Veteran’s pneumonia diagnoses and his military service, including his service-connected disability. Since the preponderance of the evidence weights against the Appellant, the Appellant is not entitled to the benefit of the doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, the appellant’s claim of service connection for cause of death is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.