Citation Nr: 21066555 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-41 519 DATE: November 1, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (D.I.C.) based on service connection for the cause of the Veteran's death is denied. Entitlement to D.I.C. under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran's fatal vascular disease was not present during service or for many decades after service, and was not etiologically related to his military service. 2. The Veteran died in August 2016; the death certificate lists the immediate cause of death as vascular disease. 3. The Veteran was not diagnosed with posttraumatic stress disorder (PTSD) prior to his death. 4. Prior to his death, the Veteran had not been service-connected for any disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.312. 2. The criteria for establishing D.I.C. benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to April 1994. He died in August 2016. The appellant is the Veteran's spouse. This matter comes on appeal from a November 2016 rating decision. The appellant had a hearing before the undersigned Veterans Law Judge in May 2020. In June 2020, the Board remanded this matter for additional development. D.I.C. Claims 1. Entitlement to D.I.C. based on service connection for the cause of the Veteran's death. The appellant contends that the Veteran had undiagnosed posttraumatic stress disorder (PTSD) from his service in Southwest Asia, and that it caused him to self-medicate with drugs and alcohol, and subsequently caused his death. Alternatively, the appellant contends that the Veteran had hypertension due to service, which led to his death. Per his death certificate, in August 2016, the Veteran died of vascular disease. Dependency and Indemnity Compensation (D.I.C.) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For such a benefit to be granted, a service-connected disorder must have caused death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that his death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board initially notes that the November 2020 VA examiner, a medical doctor, noted that no autopsy had been performed and the death certificate listing the Veteran's cause of death had been decided by a "justice of the peace" based solely on history. As no autopsy had been done on the Veteran, the examiner found that cause of death listed was speculative and that the death certificate was signed out by a non-medical justice of the peace. Because the listed cause of death "vascular disease," was speculative, it was very general and non-specific, and did not really lend information as to the actual cause of death. Rather, dozens of more specific and diverse conditions would fall into the generic term of "vascular disease." Furthermore, it was also possible that the actual cause of death could have been outside the realm of "vascular disease." Without an autopsy, it would not be possible to determine the actual cause of death, without resorting to mere speculation. To determine otherwise would be adding speculation on top of speculation. Even if the Board were to give the appellant the benefit of the doubt as to the Veteran's cause of death being to vascular disease, the most probative evidence of record does not support finding that the Veteran had hypertension due to service or that it was the cause of his death. The November 2020 VA examiner for the hypertension claim specifically found that it was less likely as not that the Veteran's hypertension developed during service or was caused by service. She explained that there is nothing intrinsic to military service that causes hypertension. Additionally, there was insufficient evidence of the criteria being met for stage 1 hypertension in service. She noted consideration of multiple blood pressure readings during service, and that the average of blood pressures for the entire 1983 to 1994 active service period was 130/80, with the average of the last 4 years of service being 136/86, which was actually lower than his entrance blood pressure of 142/88. Neither of those average blood pressures met the criteria for diagnosing stage 1 hypertension. She further noted consideration of isolated, elevated blood pressures in September and October of 1990, in visits for knee pain. However, as pain can temporarily elevate blood pressure, hypertension cannot be diagnosed under such circumstances. Furthermore, the four remaining blood pressures, between 1992 and discharge in 1994 were both individually and on average lower, and not meeting criteria for stage 1 hypertension, with two of them being similar to his entrance blood pressure and the other two being much lower. The examiner found that it was less likely as not that the claimed disorder was either the principle/primary cause or contributory cause of death. As to the appellant's claim that the Veteran had undiagnosed PTSD that caused his death, the Board finds that the most probative evidence of record does not support her claim. Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125, (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board further notes that combat status has not been claimed and there is no indication of combat status; also, no specific stressor has been proffered as to being the cause of the Veteran's PTSD. The appellant appears to generally contend that the Veteran had PTSD due to fear of hostile military activity as no specific stressor has been identified. As such, a diagnosis of PTSD based on such activity must be made by a VA psychiatrist or psychologist, per 38 C.F.R. § 3.304(f)(3). The only VA psychologist to provide an opinion as to whether the Veteran had PTSD prior to his death is the March 2018 VA examiner, who specifically found that he did not meet the criteria for a PTSD diagnosis. In contrast, the Board finds that the October 2020 VA examiner was not competent to provide a PTSD diagnosis as he was not a licensed psychologist or psychiatrist, but only a family medicine doctor. Moreover, the October 2020 VA examiner appears to have based his medical opinion solely on the appellant's unsupported lay statements. The Board is not bound to accept diagnoses and opinions by physicians who base a diagnosis of PTSD solely on the Veteran's, or in this case the appellant's, unsupported statements. See generally Swann v. Brown, 5 Vet. App. 229 (1993). As to the lay diagnoses of PTSD provided in lay statements, the Board notes that none of the lay statement providers have shown that they have medical knowledge or training to have diagnosed the Veteran with PTSD prior to his death. See 38 C.F.R. § 3.304(f) ("Service connection for [PTSD] requires medical evidence diagnosing the condition...."). Consequently, such assertions of PTSD are not competent evidence of a PTSD diagnosis. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). In a July 2020 letter, from A.D., Ph.D., a middle school science instructor and assistant cheerleading coach, reported that she had been asked by the Veteran's family to provide a medical opinion. She reported consideration of multiple medical articles and journals that showed there is a positive connection between PTSD and cardiovascular disease. She requested that VA find that the Veteran's death was the result of cardiovascular disease stemming from PTSD caused by war service. There is no indication that A.D. is a licensed psychiatrist or a psychologist. There is also no indication that she knew the Veteran or reviewed any information to render a diagnosis of PTSD. The Board finds that such a medical opinion is not competent evidence to provide for a diagnosis of PTSD. To the extent she has provided an opinion in general on PTSD causing the Veteran's cardiovascular disorders and thus death, the Board finds that the November 2020 VA examiner adequately addressed such findings and is generally a more probative medical opinion. The November 2020 VA examiner noted consideration of A.D., Ph.D.'s letter, which cited research collected by the family research indicating a potential relationship between PTSD and elevated risk of heart disease or stroke. The VA examiner found that this research was used to support a conclusion that the Veteran's death was an "undeniable risk of cardiovascular disease stemming from years of dealing with PTSD." The VA examiner explained that the research cited relating PTSD and other health conditions is not in question, but explained that the conclusions drawn in the contending letter were not appropriate to the information offered, as the writer (A.D.) conflated correlation with causation, failing to account for either other known factors contributing to the Veteran's cardiovascular concerns as are cited in available medical records or for the absence of any PTSD diagnosis or treatment rendered in the Veteran's remote past. The Board notes that private medical providers, in September 2007, indicated significant family history to include that the Veteran's mother had died of end stage renal disease secondary to diabetes and hypertension. The Board thus finds that the November 2020 VA examiner's opinion, made by a VA psychologist, is the most competent and probative medical evidence of record as to the question of whether the Veteran had undiagnosed PTSD prior to his death. That VA examiner found that available records indicated that the Veteran had no history of mental health diagnosis or treatment, that the Veteran self-reported denials of mental health concerns or conditions throughout his military service, and that there was no indication by family of mental health concerns or conditions beyond known substance use (as noted in service treatment and community medical records) and potentially associated behavior changes. Available evidence did not suggest the presence of Criterion A stressor or associated PTSD symptoms. The examiner noted that the Veteran may have met DSM 5 diagnostic criteria for alcohol use disorder at periods in his life, which potentially began in military service given in-service noted DUI and SUD treatment. The Board notes that such in-service DUI and treatment occurred prior to the Veteran's Gulf War service, which the appellant currently contends was the cause of alcohol use. The examiner found that it is unclear whether the Veteran's alcohol use was a source of distress or functional impairment throughout his life. There was no further indication of additional treatment or impairment following military discharge. As such, as noted above, the examiner found that it was less likely than not that the Veteran had a mental health diagnosis incurred or caused by his military service. The November 2020 VA examiner provided a very detailed explanation of how she reached her medical conclusions, including an extensive review of the medical records. The opinion proffered considered all the pertinent evidence of record, to include the lay statements of record, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). As the preponderance of the most probative evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for cause of the Veteran's death is denied. 2. Entitlement to D.I.C. under 38 U.S.C. § 1318. Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran (i) was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or (ii) was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or (iii) was rated as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former prisoner of war (POW) and died after September 30, 1999. 38 U.S.C. § 1318. The facts in this case are not in dispute. The Veteran was not an ex-POW. He had not established service connection for any disabilities. The Veteran had never been awarded individual unemployability during his lifetime and had not been continuously rated totally disabled since his discharge from service (April 1994). Thus, the legal criteria for D.I.C. under 38 U.S.C. § 1318 are not met, and the appellant's claim for this benefit must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.