Citation Nr: 21066485 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-50 968 DATE: November 1, 2021 ORDER Entitlement to service connection for cause of death is denied. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is denied. Entitlement to death pension benefits is denied. FINDINGS OF FACT 1. The Veteran's certificate of death lists the immediate causes of death as cerebrovascular accident (CVA). 2. At the time of the Veteran's death, service connection was established for post-traumatic headaches, a left forehead scar, and a left ankle ligament repair. 3. The medical evidence of record does not demonstrate that any of the Veteran's service-connected conditions caused or were contributing factors to his death. 4. The Veteran did not have a total disability rating for ten years prior to his death, was not rated totally disabled continuously after his discharge from service for a period of not less than five years immediately preceding death, and he is not a former prisoner of war (POW). 5. The appellant's countable annual income exceeds the maximum annual death pension rate. CONCLUSIONS OF LAW 1. The criteria for service connection for cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1310, 5103, 5103A (2018); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.306, 3.312 (2020). 2. The criteria for entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318(b) (2018); 38 C.F.R. § 3.22 (2020). 3. The criteria for death pension benefits are not met. 38 U.S.C. §§ 101, 1503, 1541 (2018); 38 C.F.R. §§ 3.2, 3.3, 3.23, 3.271, 3.272, 3.274, 3.275 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1974 to January 1978. The Veteran died in April of 2014. The appellant asserts that she is the surviving spouse of the decedent. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 1. Entitlement to service connection for cause of death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, and after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). a) Principal Cause of Death The appellant contends that the Veteran's cause of death, a cerebrovascular accident (stroke), was due to his service-connected disabilities. The service-connected disability will be considered as the principal (primary) cause of death when such disability, 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 Veteran's service treatment records (STRs) are silent for complaints, symptoms, treatment for or a diagnosis of stroke. See June 2013 STRs. The Veteran's November 1977 separation examination indicates he had a history of head trauma in 1975, but was treated with good results, no complications, and no sequelae. Id. The examination also indicated surgery to his left ankle in October 1975 and that the Veteran still experienced some discomfort. Id. An April 2014 primary care note indicated the Veteran died in April 2014 from a massive stroke. See December 2017 VA Medical Treatment Records. At the time of death, the Veteran was diagnosed with depressive disorder, migraine headaches, foot pain, low back pain, neck pain, lateral epicondylitis, anxiety disorder, dyslipidemia, hypertension and was an active smoker. Id. The Veteran's medical treatment records are silent for any treatment or diagnosis of a stroke prior to April 2014. Id. In a July 2016 VA medical opinion, the examiner opined that the Veteran's death, caused by a stroke, was less likely than not due to or related to a service-connected disability. The examiner noted that at the time of death, the Veteran was service connected for a left ankle ligament repair, a left forehead scar and post-traumatic headaches, none of which were established risk factors for stroke. The examiner stated the primary risk factor for a stroke is hypertension. At the time of death, the Veteran was diagnosed with hypertension and the examiner opined this was likely the cause of the Veteran's stroke. Id. The examiner stated in addition to hypertension, there are other well-established risk factors for stroke including cigarette smoking, artery disease, atrial fibrillation, elevated cholesterol, and obesity, and the Veteran was not service connected for any of those conditions. Id. The Board finds that the July 2016 VA medical opinion is entitled to probative weight as the VA examiner thoroughly reviewed the record and supported their opinion by adequate rationale that contains clear conclusions and provides a detailed reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is also supported by the Veteran's service and medical treatment records. The evidence of record does not support that the Veteran's service-connected left ankle ligament repair, left forehead scar and post-traumatic headaches, singly or jointly with some other condition, immediately caused the Veteran's death, were an underlying cause of his death, or were etiologically related to his death. Therefore, the claim for service connection for the cause of the Veteran's death must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. b) Contributory Cause of Death The Board has also considered whether the Veteran's service-connected disabilities may be found to have contributed to his death. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; and 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)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Prior to his death, the Veteran was service connected at 40 percent for a left ankle ligament repair, 10 percent for a left forehead scar and 30 percent for post-traumatic headaches. See December 2013 Rating Decision. The evidence of record does not support a finding that the Veteran's service-connected disabilities were contributory causes of the Veteran's death, as the only cause of death listed on the death certificate was cerebrovascular accident. In a July 2016 VA medical opinion, the examiner opined the Veteran's service-connected disabilities, including the course of treatment for the condition, did not cause debilitating effects and general impairment of health to an extent that would render a person materially less capable of resisting the effects of other disease or injury primarily causing death. The Board finds there is no evidence of record to suggest that the Veteran's service-connected left ankle ligament repair, left forehead scar or post-traumatic headaches made the Veteran materially less able to resist the effects of his stroke. As such, the claim for service connection for the cause of the Veteran's death, based on consideration of his service-connected disabilities as contributory causes of the Veteran's death, must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 Dependency and indemnity compensation (DIC) is available to survivors of certain totally disabled veterans who died from non-service-connected causes. Under 38 U.S.C. § 1318, VA will pay DIC benefits in the same manner as if the Veteran's death were service-connected if: (a) the Veteran's death was not the result of willful misconduct, and (b) the Veteran (1) was continuously rated totally disabled for at least 10 years immediately preceding death; (2) was continuously rated totally disabled upon separation from service and for at least 5 years immediately preceding death; or (3) was a former prisoner of war who was rated totally disabled for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. During his lifetime, the Veteran was not rated as totally disabled for VA purposes and there is no evidence that he was a former prisoner of war. The appellant has not alleged that a total disability rating would have been assigned but for clear and unmistakable error in a decision issued in the Veteran's lifetime. Thus, the requirements for DIC benefits under 38 U.S.C. § 1318 are not met, and the appeal as to this issue is denied. 3. Entitlement to death pension benefits Death pension benefits are available for a surviving spouse pursuant to 38 U.S.C. § 1541(a) and its implementing regulation 38 C.F.R. § 3.3(b)(4). A surviving spouse is entitled to such benefits if two criteria are met. First, the veteran had qualifying wartime service as defined in 38 C.F.R. § 3.3(a)(3)(i), (ii), and (iii). Second, the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual death pension rate (MAPR) specified in 38 C.F.R. §§ 3.23 and 3.24. See M21-1, Part I, Appendix B. The Veteran's period of service began in January 1974, during the Vietnam era period of war, which began on August 5, 1964 and ended May 7, 1975. 38 U.S.C. § 101; 38 C.F.R. § 3.2. In this case, the Veteran's service met the qualifying service criteria as defined in 38 C.F.R. § 3.3(a)(3)(i), consisting of more than 90 days of active service during the war period from August 5, 1964 through May 7, 1975. Similarly, there is no question that the appellant is the Veteran's surviving spouse. Thus, the question in this appeal is whether the appellant's annual income is not in excess of the applicable MAPR. Entitlement is established if, among other things, the appellant's income is not in excess of the applicable MAPR, and specified at 38 C.F.R. § 3.23, as changed periodically, and reported in the Federal Register. See 38 U.S.C. § 1521. The maximum pension rate is reduced dollar for dollar by the amount of the countable income of the appellant and any dependent. 38 U.S.C. § 1521; 38 C.F.R. § 3.23(d). In determining income for this purpose, payments of any kind from any source are counted as income during the 12-month annualization period in which received unless specifically excluded. 38 U.S.C. § 1503; 38 C.F.R. § 3.271. The MAPRs are specified in 38 U.S.C. §§ 1521 and 1542, as increased from time to time under 38 U.S.C. § 5312. With respect to the income threshold requirement, the evidence of record is insufficient to determine the appellant's income is not in excess of the applicable MAPR amounts. On her June 2014 VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, the appellant left the sections for gross monthly income, expected income and medical expenses blank. The appellant was notified in July 2014 that she had not submitted all of the evidence necessary to process the claim, including the income and net worth sections on their application, and had until June 2, 2015 to submit the evidence. Neither the appellant nor her representative provided any additional evidence of income for the purpose of calculating countable income for death pension purposes. Based on the foregoing, the Board finds that there is insufficient evidence to determine if the appellant's countable income has exceeded the MAPR. Accordingly, the appellant does not meet the annual income requirement set forth in 38 C.F.R. § 3.3(b)(4)(iii), and therefore nonservice-connected death pension is not warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.