Citation Nr: 20046579 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 12-21 494 DATE: July 13, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in December 2010 as the result of metastatic prostate cancer. Tuberculosis of the lung was noted to be a contributory condition. 2. Prior to his death, the Veteran was in receipt of service connection for inactive pulmonary tuberculosis. 3. The evidence of record is against a finding that the Veteran’s cause of death was related to any injury, disease, or exposure incurred during the Veteran’s active service, to include his service-connected inactive pulmonary tuberculosis. 4. At the time of the Veteran’s death, service connection had been in effect since July 27, 1947, for inactive pulmonary tuberculosis, at which time he was noted to be 100 percent disabled. It was subsequently rated as zero percent disabling. 5. The Veteran was not rated as totally disabled for service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. 2. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1945 to July 1947. He passed away in December 2010. The appellant is the Veteran’s surviving spouse. In March 2013, the appellant testified at a videoconference hearing. A transcript of the hearing is of record. This matter returns to the Board of Veterans’ Appeals (Board) following a Joint Motion for Remand (JMR) from the United States Court of Appeals for Veterans Claims (Court) in July 2017 and a subsequent Remand by the Board in February 2018. In a prior December 2014 Remand and in the February 2018 Remand, the Board sought information from the Agency of Original Jurisdiction (AOJ) on the disability rating the Veteran received throughout his lifetime for his service-connected inactive pulmonary tuberculosis, on account of the Veteran’s claims file being incomplete and having to be reconstructed over the years. Following the February 2018 Remand, the AOJ sent the appellant a letter in November 2019 requesting that she submit any copies of disability ratings and notification letters the Veteran received throughout his lifetime, especially those records related to his service-connected inactive pulmonary tuberculosis. The AOJ also asked her to provide the name of any Veterans Service Organizations that assisted the Veteran with his claims at any point during his life. The appellant did not respond to the AOJ’s requests for information. A subsequent document shows that no file with the Veteran’s claims file number was found in the records management center database. The AOJ also requested from the Internal Revenue Service (IRS) information on payments sent to the Veteran for as long a period as was available, which included payments as far back as 1997. Email correspondence indicated that was as much information as could be obtained from the IRS. In January 2020, the AOJ made a formal finding on the unavailability of the missing documents from the Veteran’s rebuilt claims file. In a January 31, 2020 letter, the AOJ informed the appellant what steps had been taken to rebuild the Veteran’s file and informed her of the determination that the missing VA disability ratings and notification letters the Veteran received during his lifetime could not be located and were therefore unavailable for review. Again, the AOJ requested that the appellant send any responsive documents that would aid in rebuilding the Veteran’s claims file. She did not respond. Given the foregoing, the Board finds that there has been substantial compliance with the February 2018 Remand, and that the Board may proceed with adjudication. Dependency and Indemnity Compensation VA Dependency and Indemnity Compensation can be awarded either under the provisions of 38 U.S.C. § 1310 or § 1318. The appellant seeks compensation under both provisions. 1. Entitlement to service connection for the cause of the Veteran’s death. Service connection for the cause of a Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, 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. Determinations as to whether service connection may be granted for a disability that caused or contributed to the Veteran’s death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. 38 U.S.C. § 1310. The Veteran died in December 2010. The Veteran’s March 2011 amended death certificate shows that his immediate cause of death was metastatic prostate cancer. Tuberculosis of the lung was listed as a significant condition contributing to death but not resulting in the underlying cause. During his lifetime, the Veteran was service-connected for a “chest condition” determined to be inactive pulmonary tuberculosis. The Board initially notes that the appellant has never contended, and the evidence does not demonstrate, that the Veteran’s terminal prostate cancer was incurred in or aggravated by the Veteran’s active service. Rather, the appellant contends that the Veteran’s service-connected inactive pulmonary tuberculosis contributed substantially and materially to cause the Veteran’s death. The Veteran’s relevant medical history has been laid out in detail in the Board’s October 2016 decision that denied service connection for the cause of the Veteran’s death, however, for the sake of completeness, the Board will include the relevant history here. VA treatment records dated from January 1997 to December 2010 do not show any chest complaints until March 2003 at which time the Veteran reported a history of chest pain for four or five years which he said occurred whenever he walked at a rapid pace. The Veteran reported that he got some shortness of breath with these symptoms. In April 2003, a catherization was recommended given the high suspicion for coronary artery disease. Pulmonary function testing in May 2003 showed normal pulmonary mechanics. In June 2003, the Veteran underwent coronary artery bypass graft (CABG) surgery and postoperative respiratory therapy. On his routine, two-month follow-up post-CABG, he denied any shortness of breath. From May 2003, the Veteran consistently denied shortness of breath and chest pain until September 2010 when the Veteran learned that his prostate cancer was widely metastatic. The Veteran complained of shortness of breath for several weeks with exertion. The Veteran’s shortness of breath was noted to be of unclear etiology. The Veteran’s primary care provider noted that a recent CT of the chest showed no acute changes to lungs, and there was no wheezing on examination. The provider hypothesized that it could be cardiac, possibly related to when the Veteran’s blood pressure was running high or related to pain due to multiple bone metastases. The provider also noted that once the Veteran had been given morphine for pain, it should help decrease the sensation of shortness of breath. The Veteran was also provided with an albuterol inhaler for his symptoms. A VA oncologist noted that a September 2010 bone scan showed significant interval progression of metastatic disease to include the skull, right lower ribs, bilateral sacroiliac joints, pelvis, and left proximal femur. A CT showed interval progression of metastatic disease as characterized by new abdominal and pelvic lymph node enlargement. Interval development of new or larger sclerotic bone lesions in the pelvis, consistent with osseous metastatic progression. A CT of the thorax was also consistent with progression of disease. In December 2011, the appellant requested a letter from the Veteran’s primary care provider indicating that he had a respiratory disease. The primary care provider reviewed the Veteran’s medical record and determined that she was unable to write a letter supporting the request. In August 2012, a private physician, L.A.H., noted that the Veteran died as a result of metastatic prostate cancer in December 2010 on Hospice service of which she was the Medical Director. The physician noted that old records from treatment for tuberculosis had been burned in a fire many years ago, but the Veteran’s siblings were able to attest to his care and that the Veteran’s discharge from service was due to complications of tuberculosis (“chest condition”). The physician noted that the Veteran’s death certificate was amended by her to reflect the significant history and that he was disabled from this for many years prior to his death. The physician noted that the appellant and her daughter indicated that the Veteran was never able to pass an employment physical due to his chronic “chest condition,” and that he worked in farming with his family as he was unable to gain employment and was always self-employed. It was noted that the Veteran had to work slowly and took frequent rests. The physician noted that a chest x-ray showed old scar tissue in right middle lobe as well as diffuse interstitial changes and that VA noted, “stable appearing biapical and right lower lobe scarring,” typical of post tuberculosis findings. A VA medical opinion was obtained in March 2015. The physician opined that the Veteran’s pulmonary tuberculosis did not substantially or materially contribute to his death, nor combine to cause his death nor aid or lend assistance to the production of death. By way of rationale, the examiner explained, There is no medical nexus establishing causality between Veteran’s death and pulmonary tuberculosis. Veteran died [in December 2010], 63 years after discharge form the military. No permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evid[en]ce following service. Death certificate evidences cause of death as metastatic pro[s]t[at]e cancer. The addendum to the death certificate by the hospice director added tuberculosis lung - SC. There is no medical nexus establishing this addition to the death certificate as contributing substantially or materially to his death, combining to cause his death or aiding or lending assistance to the production of his death. Medical records from VA social Worker, [December] 2010 evidence, “Veteran’s Prima[]ry Care Provider Dr. P. is unable to write letter supporting wife’s request. She (wife) requested letter form Veteran’s Prima[]ry Provider indicat[ing] he had a respiratory disease to help support her claim for survivors benefits.” Furthermore, Oncology medical note, [August] 2010 by Dr. BP evidences, “84 year old man experiencing decline in energy and performance-unclear how much can be attributed to his prostate c[a]ncer, despite climbing PSA because his burden is low, his progressive Parkinsonism may better explain his decline.” Chest xray report of 2003 evidences, “Stable appearing biapical and RLL scarring-this would be typical of tb finding. Normal sized heart silhou[e]tte noted on 2003 chest xray. This was prior to Vetera[n]’s CABG and spread of cancer.” Full consideration of all pertinent and available medical facts is rendered. Following a JMR and subsequent Board remand in February 2018, an additional VA medical opinion was obtained in March 2020. Based on a review of the evidence and relevant medical literature, and in accordance with accepted medical principles, the examiner opined that it was less likely than not that the Veteran’s service-connected pulmonary tuberculosis contributed substantially or materially to the Veteran’s death; combined to cause his death; or aided or lent assistance of the production of his death. By way of rationale, Dr. M.S. initially noted that if the Veteran had respiratory compromise from his service-connected tuberculosis, it is likely that the Veteran would have reported such to his treating providers. However, medical treatment records from 1996 through 2010 did not show that the Veteran reported symptoms that would suggest any respiratory disability. Instead, during that time period, the Veteran repeatedly denied shortness of breath or other respiratory symptoms. Dr. M.S. also hypothesized that if the Veteran had respiratory compromise from his service-connected tuberculosis, such would be reflected in his physical functioning. However, Dr. M.S. noted that a review of the Veteran’s records showed that at age 76, the Veteran was working in his garden; at age 77, he scored a 100 percent on test designed to measure the ability to perform daily tasks; at age 78, he indicated that he was walking 1 to 2 miles a day, gardening, and lawn mowing; at age 79, he was shoveling snow and walking on a treadmill daily; at age 80, he was noted to be active and performed his activities of daily living; at age 81, he was noted to be active and energetic; at age 84, he changed sparkplugs, and at age 85, he reported a functional lifestyle that included walking around his block. To that end, Dr. M.S. stated that any respiratory symptoms or disability would have manifested in impaired respiratory functioning as measured by objective pulmonary function testing; however, treatment records show that in May 2003 – decades after separating from service – the Veteran had normal pulmonary function testing results. Dr. M.S. also indicated that any radiographic abnormalities from tuberculosis from the 1940s would have manifested during the tuberculosis illness or soon afterwards; yet, the Veteran had a normal chest X-ray on November 26, 1996 – evidence that excluded any radiographic changes from the Veteran’s service-connected tuberculosis condition. Dr. M.S. also added that the Veteran’s primary care physician declined to write a statement in support of the appellant’s claim that the Veteran’s service-connected tuberculosis contributed to the Veteran’s death. Finally, Dr. M.S. noted various inconsistencies in the August 2012 opinion submitted by L.A.H., the hospice director. Dr. M.S. noted the inconsistent statement that the Veteran worked as a farmer but was disabled from tuberculosis for many years prior to his death. It was also noted that there was no medical rationale explaining how tuberculosis or any respiratory condition would have contributed to the Veteran’s death, and finally, Dr. M.S. noted that L.A.H. did not report that it was “more likely” than not that tuberculosis contributed to the Veteran’s death. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). Here, there are three medical opinions of record – the August 2012 opinion authored by L.A.H., and two VA medical opinions from March 2015 and March 2020. The Board affords the highest probative value to the March 2020 VA opinion. In this regard, the examiner provided a comprehensive history of the Veteran’s relevant medical history as it pertained to the question of whether service-connected pulmonary tuberculosis contributed to or lent assistance to the Veteran’s death, provided a fully articulated opinion that considered the private opinion submitted by L.A.H. in support of the appellant’s claim, and furnished a well-reasoned analysis. The Board, therefore, attaches the most probative value to this opinion as it is well-reasoned, detailed, and consistent with the other evidence of record, specifically, the Veteran’s medical history and statements to his providers during the years preceding his death. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has also considered the many lay statements submitted by the late Veteran’s family and friends which depicted the declining state of the Veteran’s health in the years preceding his death. Friends and family recount witnessing the Veteran being short of breath and tired and having prolonged coughing spells. His stepson noted that it was difficult for the Veteran to do any physical work and the Veteran’s brother noted that the Veteran needed to take many breaks from his work due to his difficulty breathing and the fact that he tired easily. Most recently, in a May 2020 letter, the appellant noted again that the Veteran had been unable to pass an employment physical during his lifetime, and that in his capacity as a farmer, he had to rest frequently. The Board does not discount these statements and does not doubt that the Veteran’s health was in decline towards the end of his life. The Board, however, must address the specific question of whether a service-connected disability contributed substantially or materially to death; it is not sufficient to show that it casually shared in producing death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For all the reasons stated outlined above, and even in consideration of the various statements submitted in support of the appeal, the Board must conclude that the Veteran’s service-connected pulmonary tuberculosis did not contribute substantially or materially to the Veteran’s death. Even L.A.H.’s opinion in support of the Veteran’s claim, though stating that the Veteran was disabled from his tuberculosis for many years prior to his death, does not conclude that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. The Board is sympathetic to the appellant’s loss and is appreciative of the Veteran’s honorable service, to include during World War II. For the reasons above, however, the probative evidence demonstrates that the Veteran’s service-connected inactive pulmonary tuberculosis was less likely than not either the principal or a contributory cause of death. Accordingly, the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death. Consequently, the benefit-of-the-doubt rules does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC under the provisions of 38 U.S.C. § 1318. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran’s surviving spouse or children in the same manner as if the Veteran’s death is service-connected if the veteran’s death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that: (1) was continuously rated as totally disabling for the 10 years immediately preceding death; (2) was continuously rated as totally disabling since the veteran’s release from active duty and for at least 5 years immediately preceding death; or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the veteran was a former POW who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 (a). The total rating may be schedular, or may be a total disability rating based on individual unemployability due to service-connected disability (TDIU). 38 C.F.R. § 3.22(c). Here, at the time of his death, the Veteran was service connected for inactive pulmonary tuberculosis, rated as zero percent disabling. Therefore, the Veteran’s service-connected disability had not been rated totally disabling on a schedular basis. Moreover, the Veteran had not been awarded a TDIU. The Board acknowledges that, throughout the pendency of the appeal, there has been a question regarding the Veteran’s compensation benefits, as the Veteran’s claims file has been reconstructed. The Veteran was discharged from active service in July 1947 and he died in December 2010. Upon separation from service, the Veteran was awarded service connection for a chest condition which was rated as 100 percent disabling. See November 1947 Notification Letter. Although information regarding when the Veteran’s compensation benefits were decreased is not of record, the Board notes that pursuant to 38 C.F.R. § 4.97, veterans entitled to receive compensation for tuberculosis were rated under Diagnostic Codes 6701-6724. Since 1945, the general rating formula for inactive pulmonary tuberculosis provides a 100 percent rating for two years after the date of arrest, or inactivity, following active pulmonary tuberculosis. Thereafter, for four years, or in any event, to six years after the date of arrest, a 50 percent rating was assigned. Thereafter, for five years, or to 11 years after date of arrest, a 30 percent rating was assigned. Following far advanced lesions diagnosed at any time while the disease process was active, a minimum 30 percent rating was assigned. Following moderately advanced lesions, provided there was continued disability, emphysema, dyspnea on exertion, impairment of health, or other similar symptomatology, a 20 percent rating was assigned. Otherwise, only a noncompensable rating was assigned. While it is not clear from the record when the Veteran’s benefits were decreased, it is clear that in the 10 years preceding the Veteran’s death he was not rated totally disabled. In this regard, and as detailed in the Introduction above, following a February 2018 Board Remand, financial reports were associated with the record which show that the Veteran received $67.00 per month since at least 1997. An audit sheet shows that the Veteran had been receiving $67.00 per month effective February 1, 1960. Notification letters dated December 2009 and November 2010 show that the Veteran was rated as zero percent disabled and the November 2010 letter specifically indicated that the Veteran was not rated at the 100 percent rate. Thus, the evidence fails to show that the Veteran was continuously rated totally disabled during the 10 years preceding his death; was continuously rated totally disabled during the five years preceding his death; or was a former prisoner of war. In light of the above, the Board concludes that there is no legal basis to award entitlement to DIC under 38 U.S.C. § 1318, and the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.