Citation Nr: 21070630 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-32 377 DATE: November 24, 2021 ORDER Service connection for the cause of the Veteran's death is denied. Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1151 are denied. DIC benefits under 38 U.S.C. § 1318 are denied. FINDINGS OF FACT 1. The Veteran died in May 2016; his death certificate listed the causes of death as septic shock due to pneumonia, pneumonia, and chronic respiratory failure. 2. The Veteran's death was not the result of carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. 3. At the time of his death, the Veteran was service-connected for disabilities associated with his right knee; he did not have a combined rating of 100 percent or an award of a total disability rating at any time. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 2. The criteria for compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death due to VA treatment are not met. 38 U.S.C. § 1151, 5107; 38 C.F.R. § 3.301, 3.361. 3. The criteria for DIC benefits under 38 U.S.C. § 1318 are not 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 December 1966 to November 1968. The Veteran died in May 2016; the appellant is his surviving spouse. Cause of Death To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310, 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 3 8 C.F.R. § 3.312(c)(1). Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312. As with all claims for disability compensation, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this matter, the Veteran's death certificate showed that his causes of death were listed as septic shock due to pneumonia, pneumonia, and chronic pulmonary failure. At the time of this death the Veteran was service connected for disabilities associated with his right knee. There is no evidence of record which connects the Veteran's right knee disabilities to his listed causes of death. Thus, there is no link between the Veteran's service-connected disabilities and his listed causes of death. However, the appellant has claimed that the Veteran's causes of death were associated with his active duty service, including that the Veteran was exposed to herbicides while on active duty. A review of the Veteran's service treatment records (STRs) did not indicate that the Veteran had treated for or been diagnosed with any pulmonary disorder while on active duty. Additionally, an April 2017 administrative decision found that there was insufficient evidence to find that the Veteran had been exposed to herbicides while on active duty and the appellant did not provide any information which would identify the Veteran's exposure to such herbicides. After review of the military personnel file, the Board is unable to find any potential exposure to herbicides while the Veteran was on active duty. His records do not show that he had foreign service or had any active service in any foreign country where use of herbicides has been conceded. While the Veteran was considered a Vietnam era veteran, that designation does not mean that the Veteran had active duty service in the Republic of Vietnam. His military personnel records establish that the Veteran did not have such duty and the appellant has not provided any evidence to contradict the Veteran's military record or provide any further information on when or where the Veteran was exposed to any chemicals during his active duty which could have contributed to his chronic pulmonary conditions. As such, the evidence does not show that the Veteran's pulmonary conditions were incurred in or caused by his active military service, nor does it show that any such disability manifested to a compensable degree within one year of the Veteran's discharge from active military service. In addition, the evidence does not provide that the Veteran's service-connected right knee conditions in any way caused, aggravated, or hastened the death of the Veteran. The Board is deeply sympathetic to the appellant's claim and grateful for the Veteran's honorable service. However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DIC Benefits The appellant also sought service connection for DIC benefits under 38 U.S.C. §§ 1151 and 1318. 1151 Under 38 U.S.C. § 1151 a Veteran who sustains a qualifying additional disability or a qualifying death as a result of VA medical treatment or hospital care is entitled to benefits in the same manner as if such additional disability or death were service-connected, when the disability or death is not the result of the Veteran's willful misconduct, the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran, and the disability or death was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or by an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). When broken into elements, there first must be evidence of an additional disability or death, which is shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.61(b). Second, the additional disability or death must be caused by hospital care or medical or surgical treatment furnished the Veteran by VA. 38 C.F.R. § 3.361(c). Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability or is deceased does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of the disability or death must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151(a)(1)(A). The proximate cause of the disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability or death; it must be shown that the medical or surgical treatment caused the Veteran's additional disability or death and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical or surgical treatment without the Veteran's informed consent. Id. Alternatively, the proximate cause of the disability or death may be an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable in each claim is to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. A review of the record shows that the appellant's claim regarding the Veteran's death does not meet the criteria for service connection for DIC benefits under § 1151. Records show that the Veteran suffered a heart attack at a hemodialysis center for treatment for end-stage renal disease in January 2016. The Veteran was then transferred to a private medical facility to a VA facility for secondary opinions regarding his anoxic encephalopathy secondary to multiple heart attacks. While at the VA facility the Veteran suffered from respiratory failure with tracheostomy and developed recurring septic shock secondary to pneumonia. See VA medical records. A VA medical opinion was issued in September 2016 which found that there was no evidence of inadequate, careless, negligent, or improper care on the part of VA. The examiner found that it was less likely than not that the Veteran's death resulted from any fault on the part of VA. The examiner also found that the Veteran's death could be attributed to events that were reasonably foreseeable. The examiner noted that the Veteran had been admitted to VA after a stay at a private facility with an established history of pulseless electrical activity and anoxic encephalopathy, fevers, and leukopenia concerning for sepsis prior to his admit into the VA facility. The examiner stated that the Veteran was essentially on a course that was going to result in death regardless of what the interventions were. There is no evidence which contradicts the opinion of the examiner and the appellant has not provided any information which calls into question the opinion of the VA examiner. As such, there is no evidence which supports a finding that the Veteran's death was a result of VA medical treatment or hospital care. Indeed, the preponderance of the evidence is against such a finding. The Board is again sympathetic to the appellant's claim and sensitive to the nature of her claim. However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1318 DIC benefits may be granted under 38 U.S.C. § 1318 when the Veteran's death was not a result of willful misconduct, and if at the time of death the Veteran was receiving or was entitled to receive compensation for a service-connected disability that was (1) continuously rated totally disabling for a period of ten or more years immediately preceding death; or (2) continuously rated totally disabling for a period of not less than five years from the date of the Veteran's separation from active duty; or (3) continuously rated totally disabling for a period of not less than one year immediately preceding death, and the Veteran was a former prisoner of war. 38 U.S.C. § 1318, 38 C.F.R. § 3.22 (a). Under 38 U.S.C. § 1318 "entitled to receive" includes a situation in which the Veteran would have received total disability compensation at the time of death but for a clear and unmistakable error in a decision on a claim filed during the Veteran's lifetime. 38 C.F.R. § § 3.22(b)(1). In this matter, the Veteran was service connected for disabilities associated with his right knee. His total disability rating was never 100 percent and he was never awarded a total disability rating at any time. As such, the criteria for DIC benefits pursuant to § 1318 are inapplicable and must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.