Citation Nr: 21001358 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 19-25 864 DATE: January 7, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The most competent, probative evidence of record demonstrates that the Veteran’s death-causing conditions were not present until many years after service and were unrelated to his service. CONCLUSION OF LAW The criteria to establish service connection for cause of death of the Veteran have not been met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1963 to May 1965. Sadly, the Veteran died in April 2015; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that jurisdiction currently rests with the Pension Management Center (PMC) in Philadelphia, Pennsylvania. In June 2019, the appellant and her son provided testimony at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the Agency of Original Jurisdiction (AOJ). A copy of the transcript is associated with the record. Addressing the relevant procedural history, this case was previously before the Board in July of 2020 at which time it was remanded for additional development, to specifically include obtaining a VA medical opinion. The case has now been returned to the Board for further adjudication. The Board notes that five additional issues that are currently on appeal are awaiting a hearing and will not, therefore, be addressed at this time. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for the cause of the Veteran’s death is denied. The appellant contends that the Veteran died of a disability that was related to his military service. Specifically, she asserts that that the Veteran’s service-connected lumbar spine degenerative arthritis was a contributory cause of his death because of her contention that the Veteran’s lumbar spine degenerative arthritis caused the fall that led to central cord syndrome and quadriplegia and contributed to his continued decline until his death. See e.g. June 2019 Board Hearing Transcript. VA service-connected death 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, 3.312. In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To constitute the principal cause of death, a service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. To be a contributory cause of death requires a showing that the service-connected disability contributed substantially or materially to cause 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 the service-connected disorder casually shared in producing death. Rather, it must be shown that there was a causal connection between the service-connected disability and the Veteran’s death. 38 C.F.R. § 3.312 (b), (c). If the evidence shows that the Veteran died of a disorder that was ultimately related to service, the regulations do not require a service-connected disability to be the primary cause of death, only to be etiologically related or causally connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the relevant evidence, the Veteran’s death certificate shows that he died in April of 2015. His death certificate lists cardiopulmonary arrest, respiratory failure, and pneumonia as the primary causes of death and lists quadriplegia as a significant condition contributing to his death. As an initial matter, at the time of the Veteran’s death, the Veteran was service connected for lumbar spine degenerative arthritis for which he was rated at 10 percent, but not for any of the conditions listed on his death certificate. Regardless, the Board has considered the competent, probative evidence of record which indicates that service connection for the cause of death of the Veteran is not warranted in this case. The Veteran’s service treatment records do not show complaints of or treatment for any of the conditions listed as causes of death on his death certificate. Significantly, the Veteran’s February 1965 separation examination fails to document any complaints of or observed symptoms related to a heart disability, respiratory failure, pneumonia or quadriplegia. Upon examination, his lungs, chest, heart, spine, and upper and lower extremities were all evaluated as “normal”. An April 1965 Report of Medical History obtained in anticipation of separation from service indicates that while the Veteran reported “ear, nose, or throat trouble”, he also explained this as “recurrent sinus trouble”. He also affirmed that there had been no adverse changes in his medical status since his separation examination. Moreover, post-service evidence does not reflect symptoms or complaints related to any of the death-causing conditions until many years after the Veteran left active duty service. In that regard, a nexus opinion was obtained in September of 2020 in order to comply with the Board’s July 2020 remand. After a review of the Veteran’s claims file and the relevant medical literature, the examiner concluded that the Veteran’s death-causing conditions were “less likely than not (less than 50 percent probability) proximately due to the result, ‘contribution’, or ‘related to the production’ (etiology) of death or caused by Veteran’s service-connected lumbar spine degenerative arthritis”. The examiner specifically addressed the contentions made by the appellant in asserting that “Quadriplegia is a paralysis caused by an injury of the cervical spinal” and “lumbar spine degenerative arthritis never cause[s] a Quadriplegia”. Further, “according with the VA note below dated FEB 11, 2015, ‘he had a fall when he tripped over his feet and hit his head and became weak shortly after the incident’. There is no documentation of any etiological relationship between this accident and his lumbar spine degenerative arthritis.” The examiner also pointed to several non-military-related reasons for the Veteran’s listed death-causing conditions, including his age and other medical issues. This examiner addressed the lay statements made by the appellant and referenced several sources of medical literature in so opining. The examiner was also aware of the Veteran’s medical history, provided a fully articulated opinion, and furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Significantly, there are no contrary opinions of record that would support the appellant’s contentions and establish a nexus between any of the Veteran’s lumbar spine arthritis and his quadriplegia, nor is there otherwise medical evidence of a link between his military service and death. Thus, the Board relies on this opinion, as well as the objective evidence of record, in determining that it is less likely than not that the Veteran’s death was related to his military service. In so finding, the Board acknowledges the appellant’s belief that the Veteran’s death was connected to his military service, as well as the statements made at her Board hearing by both her and her son. However, while the appellant believes that the Veteran’s service-connected lumbar spine degenerative arthritis began a chain of events that led to his death, as a lay person, she has not shown that she nor her son has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of quadriplegia, as well as the other conditions noted on the Veteran’s death certificate, are not matters capable of lay observation, and require medical expertise to determine. Accordingly, the opinions of the appellant and her son as to the diagnosis or etiology of the Veteran’s cause of death, while acknowledged, unfortunately are not probative medical evidence. In addition, the Board has considered the fact that certain diseases may be presumed to have been incurred in service where a veteran was exposed to herbicide agents while on active service, even when there is no evidence of such a disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). In this case, while the Veteran served during the Vietnam Era and his DD 214 indicates he had some foreign service, there is no evidence that he served in a specified area during a specified time period from which service connection may be presumptively established. And more importantly, this presumption is specifically limited to those diseases listed. 38 C.F.R. § 3.309 (e). Neither cardiopulmonary arrest, respiratory failure, pneumonia nor quadriplegia is among the listed diseases. VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See e.g. Notice, 67 Fed. Reg. 42,600-42,608 (2002). Further, the Board notes that a surviving spouse may also establish entitlement to DIC benefits under 38 U.S.C. § 1318 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 continuously rated totally disabled for a period of not less than 5 years from the Veteran’s discharge from active duty; or (3) was rated by VA as totally disabled for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). However, in this case, the Veteran was not in receipt of, or entitled to receive, compensation for a service-connected disability rated as totally disabling for any time period whatsoever nor is there any evidence of record that he was a prisoner of war. As such, entitlement to DIC benefits under 38 U.S.C. § 1318 is not warranted. Based on the foregoing evidence, the appellant’s claim for service connection for cause of the Veteran’s death must be denied. No disability incurred in or aggravated by service caused or contributed to the Veteran’s death, and thus there is no basis to award service connection for the cause of the Veteran’s death. Thus, the Board finds that the preponderance of the evidence is against the claim and, therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In making this determination, the Board does not wish to convey any lack of sympathy for the appellant in this matter, nor for the unfortunate circumstances which resulted in the Veteran’s death. Moreover, the Board does not doubt the sincerity of the appellant’s contentions. That being said, the Board is bound by the laws and regulations governing the payment of benefits, which, in this case, do not support the award of benefits. Based on the evidence, the appellant’s claim for service connection for cause of the Veteran’s death must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.