Citation Nr: 21066655 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-50 276 DATE: November 1, 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. FINDINGS OF FACT 1. The Veteran died in June 2008 and the death certificate lists the immediate cause of death as squamous cell head and neck cancer. 2. The Veteran's squamous cell carcinoma did not begin during service or within one year of separation from service, was not otherwise related to service, and was not otherwise caused by a service-connected disability. 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. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. 2. The criteria for DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 5107; 38 C.F.R. §§ 3.22, 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to April 1975. He died in June 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision which denied entitlement to service connection for the Veteran's cause of death and entitlement to Dependency and Indemnity Compensation under 38 U.S.C. §§ 1318. The Board notes that while the appellant asserts that she is the Veteran's surviving spouse, VA has not yet received information needed to determine the appellant's status as surviving spouse. Rather, VA adjudicated and denied the claims on the merits. See March 2017 Decision Notification Letter. In July 2021, the appellant testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. 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 seeks to establish service connection for the Veteran's cause of death. She contends that the Veteran's personality changed after his service, that his overall health was worse after service, and that the ocular albinism and foveal hypoplasia diagnosed during service predisposed him to squamous cell carcinoma. At the time of the Veteran's death, he was not service-connected for any disability. A death certificate for the Veteran was issued in July 2008. The certifying physician found that the immediate cause of death was squamous cell cancer of the head and neck with onset in July 2007. There are no listed significant conditions contributing to death; however, the certifying physician indicates that tobacco use contributed to death. An autopsy was not performed. An entrance examination is not associated with the Veteran's service treatment records. Service treatment records reflect that in January 1975, shortly after entrance to service, an ophthalmology consult was placed. Upon examination by ophthalmology, the Veteran was found to have nystagmus and the examining clinician questioned whether the Veteran was qualified for active duty. A March 1975 narrative summary reflects the Veteran reported having nystagmus and poor vision his entire life with an uncertain amount of correction with the use of glasses in the past. After examining the Veteran, the clinician provided diagnoses of ocular albinism, foveal hypoplasia, nystagmus secondary to ocular albinism and foveal hypoplasia, and amblyopia secondary to ocular albinism, foveal hypoplasia, and nystagmus. The clinician recommended a medical discharge. A March 1975 Medical Board Proceedings reflect diagnoses of ocular albinism, foveal hypoplasia, nystagmus, and amblyopia, all of which existed prior to service with approximate onset of the Veteran's date of birth. The Medical Board found that these conditions were not caused by service, as they existed prior to entry on active duty, and they were not aggravated by active duty. On a March 1975 Disposition Form, the Veteran indicates that he requested discharge from service for physical disability as he had been found unfit for retention by reason of physical disability which was found to exist prior to enlistment, and which was neither incident to nor aggravated by service. A review of his service treatment records shows no complaints of, treatment for, or a diagnosis of squamous cell carcinoma. The Veteran was discharged in April 1975. In January 1979, the Veteran filed a claim for service connection for an eye disability. A September 1979 rating decision denied service connection for an eye disability, noting that shortly after entrance to service, the Veteran was seen by the ophthalmology clinic where he reported he had nystagmus, a congenital condition, with resulting poor vision and amblyopia all his life. He was subsequently medically discharged for ocular albinism and foveal hypoplasia, with the Medical Board concluding that such existed prior to service and was not aggravated by the Veteran's short period of service. VA concluded that the evidence of record did not demonstrate that the Veteran's congenital eye condition was aggravated by service. Post-service treatment records reflect a history of tobacco abuse disorder and nicotine dependence. In July 2007, the Veteran presented with swelling of the neck and trismus for approximately one week. He reported a half-pack per day use of tobacco. Upon examination, the Veteran was found to have a right neck abscess, fever, elevated white blood cell count, and trismus. The right lateral tongue had an exophytic lesion and imaging studies revealed a large, organized fluid collection in the right neck. A biopsy of the mouth lesion revealed squamous cell carcinoma which had metastasized to his lymph nodes, lungs, and ribs. He was diagnosed with Stage T4, N2, MX squamous cell carcinoma of the head and neck. He received radiation, but declined chemotherapy and other aggressive treatment, and eventually succumbed to cancer in June 2008. After careful review, the Board finds that the weight of the evidence is against a link between the Veteran's squamous cell carcinoma, the immediate cause of his death, and his service in 1975. Here, there is no objective medical evidence of record that the Veteran's squamous cell carcinoma is related to service. Rather, his squamous cell carcinoma was diagnosed in July 2007, more than three decades after service. Furthermore, the evidence of record reflects that tobacco use, rather than any incident during service, was a contributor to the Veteran's death due to squamous cell carcinoma. Although a VA medical opinion was not obtained in this case as to whether the Veteran's squamous cell carcinoma was related to service, such an examination is not necessary. In determining whether the duty to assist requires that a VA examination be provided or a medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). With respect to the factors above, the evidence does not establish an in-service event, injury, or disease, that the Veteran's squamous cell carcinoma manifested during an applicable presumptive period, or that his squamous cell carcinoma is otherwise related to his service. As such, in this case, no examination is necessary in order to adjudicate whether service connection is warranted for the Veteran's cause of death. As to the appellant's contention that the Veteran's vision disability predisposed him to squamous cell carcinoma, the Veteran was not service-connected for ocular albinism, foveal hypoplasia, nystagmus, and amblyopia. The evidence of record reflects that these conditions preexisted the Veteran's service, and the evidence does not reflect that these conditions were aggravated by service or than the Veteran experienced a superimposed disability due to service. Even if the Board were to consider or find that service connection was warranted for the Veteran's vision disability, the appellant has not provided any specific details as to how the Veteran's vision disability predisposed him to squamous cell carcinoma, beyond a general assertion. Beyond this conclusory generalized statement, there is no competent evidence of an in-service incurrence or of a relationship between the Veteran's squamous cell carcinoma and his active service. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (a claimant's mere "conclusory generalized statement" that an in-service illness caused his current disability did not trigger VA's requirement to obtain an examination, and it rejected the theory "that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues"). While the appellant believes that the Veteran's death is related to his military service, she is not competent to provide a nexus in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. While the Board is sympathetic to the arguments raised by the appellant, that the Veteran's death was the result of the vision disability for which he was discharged from service and which predisposed him to squamous cell carcinoma, and ultimately resulted in the Veteran's death, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve, and service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318. The appellant seeks to establish Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 for the Veteran's death. 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 prisoner of war (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 April 1975 and died in June 2008. The Veteran was not service-connected for any disabilities at the time of his death. The Veteran was at no time in receipt of a total disability rating, to include as due to individual unemployability due to service-connected disabilities. The appellant does not claim that the Veteran was 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. YVETTE R. WHITE 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.