Citation Nr: 21070282 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-13 998A DATE: November 23, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) based upon service connection for the cause of the Veteran's death is denied. INTRODUCTION The Veteran served on active duty from February 1951 to March 1954, and was the recipient of the Purple Heart Medal and Bronze Service Star. He died in March 2015, and the Appellant is his surviving spouse. In January 2021, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in April 2021, the above-noted issue was remanded for additional development. The case has since been returned for further appellate review. FINDING OF FACT The preponderance of the evidence is against finding that a service-related disability contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria have not been met for entitlement to dependency and indemnity compensation. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103 (a), the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Though the Appellant was not initially provided all required VCAA notice prior to the April 2016 rating decision on appeal, this notice deficiency was subsequently cured by way of a February 2017 statement of the case (SOC). In that letter, the RO informed the Appellant of the requirements necessary to satisfy a claim for DIC based on the cause of a veteran's death. The RO also provided the Appellant with an explanation of the disabilities the Veteran was service-connected for at the time of his death, and explained the evidence did not demonstrate those disabilities caused or contributed substantially to his death. Further, the RO provided an explanation of the evidence and information required to substantiate a DIC claim based on both a service-connected condition, as well as a yet service-connected condition. The SOC also informed her of the respective responsibilities of the claimant and VA, and actions taken on her behalf. The Board also finds VA has complied with its duty to assist the Appellant in the development of her claim. The Veteran's service treatment records (STRs) are substantially of record. All available post-service medical evidence identified by the Appellant have been obtained. The Appellant was also afforded a hearing before the undersigned Veterans Law Judge in January 2021. Finally, the Board acknowledges that a comprehensive VA independent medical opinion was obtained from a Pulmonary Disease specialist in response to the claim in May and August 2021. Accordingly, the Board will address the merits of the claim. Relevant Legal Criteria Dependency and indemnity compensation benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Factual Background and Analysis The Appellant initiated a claim for entitlement to DIC benefits based on service connection for the cause of the Veteran's death in March 2016. Prior to his death the Veteran was service connected for a gunshot wound to muscle groups V and VI; sensory impairment of the left hand, thumb, index, and middle flexor surface; lumbosacral degenerative disc and joint disease; right lower extremity radiculopathy; residuals of a bone graft at the anterior and posterior spine; tinnitus; and bilateral hearing loss. The central issue in this case is whether a service-related condition which either was or was not service connected prior to his death was the principle or contributory cause of his death. The Veteran died in March 2015. His death certificate shows the Veteran's death was due to severe sepsis, which was a consequence of recurrent aspiration pneumonia. His STRs indicate he was diagnosed and treated for pneumonia during his period of military service. Additionally, as noted in the Board's April 2021 remand, the evidence indicates the Veteran was wounded by small arms fire during his time in Korea, and the Appellant has asserted his gunshot wound may have contributed to his pneumonia recurrences. She also reported the Veteran experienced pneumonia roughly four times per year following his discharge from active duty. A September 1984 lateral chest radiograph also revealed evidence of old granulomatous changes in the right lower lung. Further, the Appellant provided an August 2020 statement from Dr. C.B., wherein the clinician found the Veteran's death was the result of his in-service gunshot wound, which severely damaged his left lung. However, in the April 2021 remand, the Board found this opinion provided limited probative value for multiple reasons. First, the clinician initially acknowledged he did not review the Veteran's STRs, as he believed those records were destroyed. More importantly, the Veteran's STRs indicate he sustained a through-and-through gunshot wound which initially penetrated the anterior portion of his lower left arm and exited through the posterior section of his arm. Repeat radiographs taken thereafter revealed no evidence of infiltrates or pulmonary damage. In the April 2021 remand the Board requested a comprehensive medical opinion from a Pulmonology Specialist, to determine whether the Veteran's death could have resulted from either his pneumonia or gunshot wound in service. In May and August 2021, the Board obtained medical opinions from a Pulmonary Disease specialist. The physician carefully reviewed the Veteran's entire medical history, paying close attention to both his in-service and post-discharge treatment notes. The physician noted the Veteran's death report indicated a contributory cause of death was recurrent pneumonia; however, the physician found insufficient medical evidence to establish a clinical diagnosis of pneumonia at any point other than the documented pneumonia shown in service. Here, the physician indicated a diagnosis of pneumonia requires radiographic findings establishing the disability. The examiner found no such evidence, only speculation by the Veteran and the Appellant that he experienced ongoing bouts of pneumonia after service. In this respect, both the VA examiner and the Board find the Veteran and the Appellant are not competent to facially diagnose this condition in such a manner. The Pulmonary Disease specialist further indicated the Veteran had a number of other conditionsboth confirmed and likely presentwhich could have accounted for his respiratory impairments. In particular, the examiner noted the Veteran's diagnosed obstructive sleep apnea, congestive heart failure, and chronic sinusitis could have accounted for his respiratory impairments. Additionally, the examiner found the Veteran likely had respiratory impairments resulting from his one pack per day tobacco use; however, like pneumonia, the examiner could not state with certainty whether the Veteran warranted a diagnosis of chronic obstructive pulmonary disease (COPD) or chronic bronchitis with airway reversibility, based on a lack of affirmative clinical evidence. Based on the overall clinical history and lay reported manifestations, the examiner concluded the Veteran less likely than not experienced recurrent and chronic pneumonia following his acute experience of the condition in service. Further, the physician also found insufficient evidence to conclude the Veteran's in-service gunshot wound led to significant pulmonary impairment. In this regard, the examiner noted the Veteran underwent recurrent radiographic testing in service, which revealed only humerus bone impact. These tests specifically revealed no evidence of chest wall, deglutition, intercostal, or diaphragm muscle involvement, which could have possibly accounted for subsequent pulmonary impairment. As such, the examiner concluded the Veteran's gunshot wound was less likely as not a causative agent in his demise. Upon careful and compassionate review of the evidence of record, the Board finds the Appellant is not entitled to service connection for the cause of the Veteran's death. In this respect, the Board concludes there is insufficient evidence to establish the Veteran's death was principally or contributorily caused by a disability that originated during his period of active duty or was otherwise connected to his active service. There is simply no medical evidence showing a causal connection between the Veteran's death and his active-duty service. With respect to whether the Appellant's own statements can establish that the Veteran's death was caused by any event or disability incurred in service, the Board notes that VA must consider all favorable lay evidence of record. 38 C.F.R. § 5107 (b); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, in addition to the medical evidence, the Board has carefully considered the Appellant's own lay statements. However, as a lay person the Board finds the Appellant is not competent to state whether the Veteran's gunshot wound in service contributed to his death, or whether he experienced ongoing bouts of pneumonia following service, because these determinations requires specialized education, training, testing, and experience. See 38 C.F.R. § 3.159 (a)(1). The Board has thoughtfully considered whether there is any other appropriate basis to grant this claim but has found none. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. As the overwhelming evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notwithstanding the above decision, the Board does extend its sincerest condolences to the Appellant for her loss, as well as its highest appreciation to the late Veteran for his honorable service. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.