Citation Nr: 21065174 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-20 548 DATE: October 25, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to survivor's pension benefits is remanded. FINDINGS OF FACT 1. The Veteran died in March 2017 and the death certificate lists the immediate cause of death as cardiopulmonary arrest secondary to hypoxia. 2. The Veteran's cardiopulmonary arrest and hypoxia did not begin during service or within one year of separation from service, was not otherwise related to service, to include in-service herbicide agent exposure or conditions related to herbicide agent exposure, and was not otherwise caused by his service-connected disabilities. 3. The Veteran was not a former prisoner of war (POW) and was not in receipt of, or entitled to receive, compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after discharge from active service, or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2020). 2. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 5107 (2012); 38 C.F.R. §§ 3.22, 3.102 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to July 1970, with service in the Republic of Vietnam from December 1967 to December 1968. He died in March 2017. The Appellant is recognized as his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2017 decision which denied entitlement to service connection for the Veteran's cause of death, denied entitlement to DIC benefits under 38 U.S.C. § 1318, and denied entitlement to survivor's pension benefits. In June 2019 and August 2020, the Board remanded the matters for further development, to include obtaining a VA medical opinion and information on the Appellant's net worth, income, and unreimbursed medical expenses. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). Service connection for the cause of a veteran's death is warranted when 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. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially and 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). When it is determined that a veteran's death was service-connected, his surviving spouse is generally entitled to dependency and indemnity compensation (DIC). See 38 U.S.C. § 101. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. 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 v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for the Veteran's cause of death. The Appellant contends that service connection is warranted for the Veteran's cause of death. Specifically, she contends that cardiopulmonary arrest secondary to hypoxia should be recognized as ischemic heart disease. See January 2018 VA Form 21-0958 (Notice of Disagreement). At the time of the Veteran's death, he was service-connected for PTSD, bilateral hearing loss, and tinnitus. However, the Board acknowledges that in-service exposure to herbicide agents has been conceded. A certificate of death for the Veteran was issued in April 2017. The certifying physician found that the immediate cause of death was cardiopulmonary arrest secondary to hypoxia with approximate onset 30 minutes prior to death. There are no listed significant conditions contributing to death. An autopsy was not performed. A review of the Veteran's service treatment records shows no complaints of, treatment for, or a diagnosis of the conditions that caused his death. Post-service treatment records reflect a history of tobacco use and alcoholism, with an incidental finding and diagnosis of hypertension in January 1997. In early-January 2017, the Veteran was admitted to the hospital with complaints of shortness of breath. Upon admission, his blood pressure was noted to be elevated, but the Appellant reported that the Veteran no longer took any medication for his hypertension as it was controlled. Chest imaging studies were suggestive for pneumonia and a transesophageal echocardiogram (TEE) was ordered due to fluid overloading. The TEE revealed left ventricular diastolic dysfunction and ruptured mitral valve chordae with partially flailed anterior leaflet along the A2 segment with secondary severe mitral regurgitation with retrograde flow into the left and right upper and lower pulmonic veins and left atrial appendage. There was no evidence of mitral valve prolapse or stenosis. The Veteran was assessed with hypoxemia and sepsis secondary to community acquired pneumonia and heart failure with preserved ejection fraction. His assessment was updated a few days later to acute hypoxemic respiratory failure secondary to acute heart failure exacerbation and community acquired pneumonia, sepsis secondary to community acquired pneumonia, and heart failure with preserved ejection fraction. In late-January 2017, the Veteran was admitted to the hospital due to lethargy. An imaging study revealed right frontal corona radiata stroke and the Veteran was assessed with acute encephalopathy and cerebral vascular accident. Discharge diagnoses in January 2017 included cardioembolic stroke. A February 2017 hospital discharge after a gastrointestinal bleed noted chronic diastolic congestive heart failure due to valvular disease. In March 2017, the Veteran was brought to the emergency room in cardiopulmonary arrest after being found unresponsive and not breathing. Resuscitation efforts were unsuccessful, and the Veteran died. The emergency room physician noted that one risk factor for cardiopulmonary arrest was hypertension. Cause of death was cardiopulmonary arrest secondary to hypoxia. In an April 2020 VA medical opinion, the examiner noted the above history and explained that cardiopulmonary arrest is not a cause of death but a means of stoppage of the heart beating and breathing, which is what occurs when every human dies. In determining the Veteran's cause of death, the examiner noted the Veteran had several life threatening, comorbid conditions. The Veteran had severe mitral valve disease causing congestive heart failure and hypoxemia contributing to right heart failure, as well as hepatitis C with hepatocellular disease, history of stroke, and history of gastrointestinal bleed, all of which, the examiner explained, could have caused his death, alone or in combination. Furthermore, none of these conditions were due to herbicide agent exposure. Thus, the examiner opined that it was less likely than not that there was any disability arising from herbicide exposure that caused, contributed substantially or materially, or combined with any other condition or abnormality to cause the Veteran's death. In August 2020, the Board remanded the matter, finding that the April 2020 examiner had not provided an adequate rationale or basis for the opinion, to include whether the conditions listed were related to ischemic heart disease, which is presumptively related to herbicide agent exposure, or to the Veteran's hypertension, which the National Academy of Sciences (NAS) has found sufficient evidence of an association related to herbicide agent exposure. The Board also found that an opinion was needed as to whether the Veteran's now-service-connected PTSD caused or contributed to the Veteran's death. In a September 2020 VA medical opinion, the examiner noted the Veteran's cause of death as cardiopulmonary arrest secondary to hypoxia. The examiner explained that cardiopulmonary arrest simply means that the heart and lungs stopped and is general information that does not actually identify the cause of death. In other words, it is a mechanism of death, not a cause. The examiner further explained that hypoxia simply means lack of oxygen and is also very general and not a cause of death. As an autopsy was not performed, the examiner indicated that to determine the Veteran's cause of death, it was necessary to examine the Veteran's medical records prior to death. Upon review of the medical records, the examiner noted that the Veteran was in end-stage hypoxia leading up to his death. In January 2017, the Veteran was admitted to the hospital with acute hypoxic respiratory failure due to acute heart failure exacerbation and pneumonia. The examiner explained that a January 2017 echocardiogram did not reveal damage to the left ventricle which would indicate coronary artery disease. Rather, the right ventricle was failing due to his hypoxia. The TEE showed severe mitral regurgitation with flail interior leaflet. In late-January 2017, the Veteran was admitted to the hospital due to cardioembolic stroke which was caused by his moderate to severe mitral regurgitation due to the floppy mitral valve leaflet. An early-February 2017 discharge noted chronic diastolic congestive heart failure due to valvular disease, and in March 2017, he was found unconscious and not breathing. After reviewing the medical records leading up to death, the VA examiner found that there was no basis to warrant a diagnosis of coronary artery disease or ischemic heart disease and that his treating clinicians never diagnosed coronary artery disease or recommended a cardiac catherization. The examiner explained that this was because the Veteran's congestive heart failure was due to mitral valve disease, which was shown on repeated tests. The mitral valve disease led to non-ischemic cardiomyopathy and pulmonary hypertension, progressive cardiac conditions, none of which were related to coronary artery disease or ischemic heart disease. Thus, the examiner opined that it was less likely than not that any of the Veteran's fatal disease/conditions were related to ischemic heart disease. As to the effect of the Veteran's hypertension, the September 2020 VA examiner noted that testing did not reveal any significant effect of hypertension on the Veteran's heart. Rather, his medical records reflected that his hypertension was controlled. After reviewing the medical literature, the examiner found that mitral valve disease, hypoxia, and cardioembolic stroke are not caused by hypertension, and that in this case specifically, the Veteran's cardioembolic stroke was caused by vegetations forming on his diseased mitral valve, breaking off, and embolizing to the brain. Thus, the examiner opined that it was less likely than not that the Veteran's hypertension was a contributory cause of death, contributed substantially or materially to his death, combined to cause death, or aided or lent assistance to the production of death. In an October 2020 VA medical opinion, the examiner noted that the Veteran sought mental health treatment in 2003 and the last mental health treatment record was dated in October 2006. PTSD was diagnosed in May 2006 and determined to be related to service. Alcohol use disorder was also diagnosed but was determined to not be related to service. The Veteran was last screened for alcohol use in February 2015, where he reported consuming seven drinks a day. The October 2020 VA examiner noted that the September 2020 examiner had found that the Veteran congestive heart failure was due to mitral valve disease, and that these led to non-ischemic cardiomyopathy and pulmonary hypertension, progressive and deadly cardiac conditions unrelated to coronary artery disease or ischemic heart disease. The examiner noted that in the years preceding death, there was no indication that the Veteran's PTSD was a condition of focus by his care providers or the Veteran. The examiner found that the available medical records and available medical literature did not offer a causal pathway by which the Veteran's PTSD could conceptualize to present a material contribution to death. Of note, testing did not show any significant effect on the Veteran's heart or health by his hypertension. His hypertension was controlled and the cardioembolic stroke was not caused by hypertension but rather, vegetations forming on his diseased mitral valve which broke off and embolized to his brain. Given these findings, the examiner opined that it was less likely than not that the Veteran's PTSD caused or materially contributed to the Veteran's death. Unfortunately, the weight of the probative evidence of record does not support that the Veteran's cause of death began during his active service or within one year of separation from service, was otherwise related to service, to include in-service herbicide agent exposure or conditions related to herbicide exposure, and was not otherwise caused by his service-connected PTSD. The evidence of record does not show that the Veteran's mitral valve disease began during service. Furthermore, while endocarditis, including all forms of valvular disease, is a condition for which presumptive service connection is available, there is no indication that the Veteran's mitral valve disease began within one year of separation from service. As to whether the Veteran's cardiac condition leading to death was related to ischemic heart disease or diagnosed hypertension and PTSD, the examiners' opinions, taken together, are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions were rendered by medical professionals who are competent to offer an opinion in the matter, and who thoroughly reviewed the Veteran's claims file, the medical literature, and considered the Appellant's lay assertions. While the Appellant believes the Veteran's cardiopulmonary arrest secondary to hypoxia is related to an in-service injury, event, or disease, including exposure to herbicide agents, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiners' opinions as discussed above. As such, the Board finds that the weight of the competent evidence of record is against a finding that the Veteran's PTSD either caused, or substantially or materially contributed to, the Veteran's death. See 38 C.F.R. §§ 3.102, 3.303, 3.312. The Board also finds that the competent evidence weighs against a finding that any condition that should or could have been service-connected caused, or substantially or materially contributed to, the Veteran's death. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are inapplicable. The claim of entitlement to service connection for the cause of the Veteran's death must be denied. 2. Entitlement to Dependency and Indemnity Compensation (DIC) 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 was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW 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). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of the statute and regulation, "entitled to receive" includes a situation in which the veteran would have received total disability compensation at the time of death but for clear and unmistakable error (CUE) in a decision on a claim filed during the veteran's lifetime. 38 C.F.R. § 3.22(b)(1). The Veteran was discharged from active service in July 1970 and died in March 2017. The Veteran was in receipt of a 50 percent disability rating from April 8, 2005 for posttraumatic stress disorder (PTSD), and a 10 percent and noncompensable rating from September 16, 2002 for tinnitus and bilateral hearing loss, respectively. The Veteran was at no time in receipt of a total disability rating, to include as due to individual unemployability. A VA Form 21-534EZ (Application for DIC, Death Pension, and/or Accrued Benefits) dated in April 2017 and received in May 2017 notes that the Veteran was not a POW and a review of the Veteran's military personnel records does not reflect that he was a POW. Based on the foregoing evidence, the Veteran was at no time rated totally disabled due to service-connected disabilities, nor was he at any time in receipt of a total disability rating due to individual unemployability. Therefore, he does not meet the requirements that the Veteran be continuously rated totally disabled for a period of 10 or more years immediately preceding his death, or be continuously rated totally disabled for a period of not less than five years from the date of the veteran's discharge or other release from active duty, or be a former POW whose 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). In addition, the Appellant has not alleged any specific error in any prior final rating decision, which would rise to the level of an allegation of CUE. See Andrews v. Principi, 18 Vet. App. 177, 181 (2004) (holding that "[a] CUE allegation must identify the alleged error with some degree of specificity"). Therefore, there is no basis to find that the Veteran was entitled to receive total disability compensation at the time of death but for CUE in a decision on a claim filed during the Veteran's lifetime, pursuant to 38 C.F.R. § 3.22(b)(1). For the foregoing reasons, the Board finds that the Veteran was not continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. The Appellant has not asserted that the Veteran met these requirements. Because the durational requirements for a total disability rating under 38 U.S.C. § 1318 have not been met, and the evidentiary record has not shown that the Veteran was a former POW, entitlement to DIC benefits under 38 U.S.C. § 1318 must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to survivor's pension benefits is remanded. The Board cannot make a fully informed decision on the issue of entitlement to survivor's pension benefits at this time. In January 2020, the Appellant submitted numerous documents in support of her claim for survivor's pension benefits. However, upon review of the medical expense reports submitted for 2017 through 2020, it is not clear whether the Appellant understood that she was to report her unreimbursed medical expenses. Specifically, for each year, she wrote in that the Veteran had passed away in 2017. As VA denied entitlement to survivor's pension benefits on the basis of excessive income, and it is not clear to the Board that the Appellant understood that she was to report her unreimbursed medical expenses, the Board will provide the appellant with an additional opportunity to clarify and provide information on any of her unreimbursed medical expenses from 2017 to present. The matter is REMANDED for the following actions: 1. Contact the Appellant and request she provide updated and complete information regarding her net worth, income, and medical expenses from March 2017 to the present. Specifically inform the Appellant that she should report any of her unreimbursed medical expenses, if any. Document all requests made, including by telephone, and responses received in the Veteran's claims file. 2. After completing the above, and any other development as may be indicated, the Appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Appellant and her representative, if one is appointed, should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.