Citation Nr: 21070941 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-42 281 DATE: November 27, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. REMANDED Entitlement to survivor's pension benefits at the aid and attendance rate is remanded. FINDINGS OF FACT 1. The Veteran died in January 2013 and the death certificate lists the immediate cause of death as a heart attack due to, or as a consequence of, a cerebrovascular accident. 2. The Veteran's cardiac and cerebrovascular conditions did not begin during service or within one year of separation from service, were not otherwise related to service, to include in-service gastrointestinal complaints, complaint of chest pain, or diagnosis of ancylostomiasis, and were not otherwise caused by his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1955 to November 1957. He died in January 2013. The Appellant is his surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2017 decision which, in pertinent part, denied service connection for the Veteran's cause of death and denied entitlement to survivor's pension benefits. In September 2020 and April 2021, the Board remanded the matters for further development, to include obtaining a VA medical opinion and information on the Appellant's caregiver. 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). Entitlement to service connection for the Veteran's cause of death. The Appellant contends that service connection is warranted for the Veteran's cause of death. Specifically, she contends that his cardiac and cerebrovascular conditions were related to his stomach complaints and hospitalization during service. See November 2016 VA Form 21-4138 (Statement in Support of Claim). At the time of the Veteran's death, he was service-connected for bilateral hearing loss and tinnitus. A certificate of death for the Veteran was issued in January 2013. The certifying physician found that the immediate cause of death was a heart attack due to, or as a consequence of, a cerebrovascular accident. There are no listed significant conditions contributing to death. An autopsy was not performed. A review of the Veteran's service treatment records shows that in August 1955, the Veteran was diagnosed with rubella. In July 1956, he was seen for chest pain lasting for one month. A chest x-ray was normal. The Veteran was also seen for chronic stomach complaints during service, the first time in January 1957 when he complained of stomach trouble lasting for two months. He was diagnosed with gastrointestinal upset of unknown etiology. In April 1957, he was hospitalized in conjunction with his gastrointestinal complaints and was subsequently diagnosed with ancylostomiasis and a cestode infection. Upon separation in October 1957, the Veteran reported continued stomach complaints, but the examiner noted imaging studies were taken and no pathology was found. Post service, the Veteran continued to have stomach complaints. In 1971, he filed a claim of service connection for stomach ulcers, which was ultimately denied by the Board in an unappealed October 1976 decision. Post-service VA treatment records reflect the Veteran first reported a history of heart problems in May 2008, with onset since his last audiological evaluation in May 2006. In October 2010, the Veteran was seen for worsening weakness after a cerebrovascular accident a year earlier. A second cerebrovascular accident was suspected. The Veteran's medical history noted coronary artery disease with two previous coronary artery bypass grafts. In a January 2021 medical opinion, the VA examiner noted that the record was silent for chronicity of care, complaints of, or treatment related to a cerebrovascular accident and/or cardiopulmonary arrest during service or within five years after discharge from service. Furthermore, as rubella and stomach conditions are different disease entities with different pathophysiological processes from cerebrovascular accidents and cardiopulmonary arrests, these conditions were unrelated to each other. Thus, the examiner opined that the Veteran's cerebrovascular accident and cardiopulmonary arrest were less likely than not related to service, including his diagnosis of rubella and stomach complaints. As to the Veteran's service-connected bilateral hearing loss and tinnitus, the VA examiner noted that the evidence did not reflect that his bilateral hearing loss and tinnitus aggravated his cerebrovascular or cardiopulmonary disorders beyond their natural progression. The examiner further explained that bilateral hearing loss and tinnitus are different disease entities with different pathophysiological processes from cerebrovascular accidents and cardiopulmonary arrests and are unrelated to each other. Thus, the examiner opined that it was less likely than not that the Veteran's service-connected bilateral hearing loss and tinnitus caused or aggravated his cerebrovascular accident or cardiopulmonary arrest. In a June 2021 addendum opinion, the January 2021 VA examiner noted that there was evidence that the Veteran complained of chest pain during service in July 1956. However, an imaging study and evaluation were normal, and there were no additional complaints of chest pain during service. An October 1957 separation examination was negative for complaints related to a heart condition. Thus, the examiner found that the July 1956 complaint of chest pain was acute and transient. Furthermore, the record was silent for chronicity of care, complaints of, or treatment related to a cardiac condition during service or within five years after discharge from service. Rather, the Veteran was first diagnosed with these conditions over twenty years after discharge. Thus, the examiner opined that the Veteran's cerebrovascular accident and cardiopulmonary arrest were less likely than not related to service, including his acute complaint of chest pain. As to the Veteran's diagnosis of ancylostomiasis (hookworm infection) during service, the examiner acknowledged that chronic ancylostomiasis can lead to anemia and occasionally heart failure. The examiner explained that while the Veteran was evaluated with and treated for ancylostomiasis in April 1957, the evidence of record did not show further treatment during service or within five years of service. Laboratory findings after treatment in April 1957 indicated that no ova or parasites were found. As such, his infection resolved with treatment given at the time. While there was evidence that the Veteran continued to have complaints related to stomach trouble, to include that reported upon separation in October 1957, the evidence of record does not show that his cerebrovascular accident or cardiopulmonary arrest were related to his stomach complaints. Additionally, are previously discussed, stomach complaints are a different disease entity with a different pathophysiological process from cerebrovascular accidents and cardiopulmonary arrests and are unrelated to each other. Thus, the examiner opined that the Veteran's cerebrovascular accident and cardiopulmonary arrest were less likely than not related to service, including his complaints of stomach pain and diagnosis of ancylostomiasis. Unfortunately, the weight of the probative evidence of record does not support that the Veteran's cause of death began during his active service or within one year of separation from service, was otherwise related to service, to include in-service gastrointestinal complaints, a complaint of chest pain, or his diagnosis of ancylostomiasis. The evidence of record does not show that the Veteran's cerebrovascular accident or cardiopulmonary arrest began during service, to include related to the July 1956 complaint of chest pain. Rather, the evidence reflects that the complaint of chest pain resolved, and his heart was normal upon separation in October 1957. Furthermore, the evidence does not show evidence of a cardiac condition until 2006 or later, decades after the Veteran's separation from service. Additionally, the evidence of record does not reflect that his cerebrovascular accident or cardiopulmonary arrest leading to death was related to his stomach complaints or diagnosis of ancylostomiasis during service. The evidence shows that his hookworm infection resolved upon treatment during service and the post-service treatment records do not reflect that he had chronic ancylostomiasis. The evidence also does not show a relationship between his cardiac and cerebrovascular conditions and his stomach complaints. Finally, the evidence does not show that his service-connected bilateral hearing loss or tinnitus caused or aggravated his cerebrovascular accident or cardiopulmonary arrest leading to death. The Board finds the examiner's opinions, taken together, are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions were rendered by a medical professional who is competent to offer an opinion in the matter, and who thoroughly reviewed the Veteran's claims file, the medical literature, and considered the Appellant's lay assertions. The Board acknowledges that there appear to be outstanding private treatment records related to the Veteran's cardiac conditions, and that these records may contain evidence favorable to the Appellant's claim. The Board remanded this claim specifically to obtain these records, but as of date, the Appellant has not responded to VA's request to provide these records nor has she provided authorization so that VA could obtain these records on her behalf. While the Appellant believes that the Veteran's death is related to an in-service injury, event, or disease, including his stomach complaints and hospitalization, she is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of pathology and the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner's opinions as discussed above. As such, the Board finds that the weight of the competent evidence of record is against a finding that the Veteran's service-connected bilateral hearing loss and tinnitus either caused, or substantially or materially contributed to, the Veteran's death. See 38 C.F.R. §§ 3.102, 3.303, 3.312. The Board also finds that the competent evidence weighs against a finding that any condition that should or could have been service-connected caused, or substantially or materially contributed to, the Veteran's death. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are inapplicable. The claim of entitlement to service connection for the cause of the Veteran's death must be denied. REASONS FOR REMAND Entitlement to survivor's pension benefits at the aid and attendance rate is remanded. The Board cannot make a fully-informed decision on entitlement to survivor's pension benefits at the aid and attendance rate at this time. VA denied survivor's pension benefits on the basis that the Appellant's income exceeded the maximum applicable pension rate (MAPR) for a surviving spouse at the aid and attendance rate. VA did not adjudicate the underlying issue as to whether the Appellant is entitled to aid and attendance, but rather, presumed that she was entitled to the aid and attendance to adjudicate her income for pension purposes. At issue in this case is whether the yearly $12,000 caregiver expense the Appellant reported on her August 2017 VA Form 21-534 is deductible from her income as an unreimbursed medical expense. Payments for assistance with activities of daily living (ADLs) and instrumental activities of daily living (IADLs) by an in-home attendant are considered a deductible medical expense for VA pension purposes as long as the attendant provides the disabled individual with health care or custodial care. Payments must be commensurate with the number of hours that the provider attends to the disabled person. The attendant must be a health care provider unless (i) the disabled individual needs aid and attendance or is housebound, or, (ii) a physician, physician assistant, certified nurse practitioner, or clinician nurse specialist states in writing that, due to a physical, mental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides. 38 C.F.R. § 3.278(d)(2). Here, the Appellant indicated on her application that her daughter provides her in-home care. Thus, in order to consider this expense a deductible medical expense for VA pension purposes, her daughter needs to be a healthcare provider or the Appellant needs to be in receipt of aid and attendance benefits or provide a statement from an appropriate clinician that she requires the health care or custodial care that her daughter provides. In January 2021 and July 2021 letters, VA requested additional information on the status of the Appellant's caregiver. To date, no response has been received. While a May 2018 VA Form 21-2680 (Examination for Housebound Status or Permanent Need for Regular Aid and Attendance) was completed by the Appellant's physician, the physician did not provide a statement that the Appellant requires the care her daughter provides. Thus, the question remains whether the Appellant is in need of aid and attendance such that her caregiver expense may be considered a deductible medical expense for VA pension purposes. As discussed above, VA did not adjudicate the issue of whether the Appellant is entitled to aid and attendance, which is a separate determination from her entitlement to survivor's pension benefits. Remand is required so that VA can adjudicate entitlement to aid and attendance in the first instance. Because a remand is required, and due to the Appellant's pro se status, upon remand, the Appellant should be afforded another opportunity to provide caregiver information or a statement from an appropriate clinician that she requires the health care or custodial care provided by her caregiver. Finally, the most recent income and medical expense information provided by the Appellant is dated in 2016. Upon remand, VA should request information on the Appellant's income and medical expenses for the 2017, 2018, 2019, 2020, and 2021 calendar years. The matter is REMANDED for the following actions: 1. Request the Appellant complete and return the appropriate forms for reporting her income and medical expenses for 2017, 2018, 2019, 2020, and 2021. 2. Request the Appellant provide information as to whether her caregiver is a health care provider, or that she provide a statement from a physician, physician assistant, certified nurse practitioner, or clinician nurse specialist that the Appellant requires the care her caregiver provides. 3. Adjudicate whether the Appellant is in need of aid and attendance. 4. After completing the above, and any other development as may be indicated, the Appellant's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Appellant should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal 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.