Citation Nr: 21071402 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-50 268 DATE: November 30, 2021 ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1970 to March 1992, to include service in the Republic of Vietnam. 2. The Veteran died in October 2013 at the age of 71; the immediate causes of death were an intracranial hemorrhage, treatment for deep vein thrombosis (DVT), and pneumonia. Other significant conditions included myelodysplastic syndrome (MDS), atrial fibrillation, and chronic kidney disease. 3. At the time of his death, the Veteran was assigned noncompensable ratings for service-connected hemorrhoids, actinic keratosis, spider veins, fractured eighth and tenth ribs, and osteoarthritis of the bilateral wrists. 4. The Veteran's service-connected disorders did not have a material role in causing his death. 5. The causes of the Veteran's death were not etiologically related to service, to include in-service Agent Orange exposure and radiation exposure. 6. The Veteran had no claims for service connection pending or due but unpaid benefits at the time of his death. CONCLUSIONS OF LAW 1. A service-connected disability did not materially or substantially to the causes of the Veteran's death. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2021). 2. The causes of the Veteran's death were not incurred in or aggravated by service, cannot be presumed to have been incurred therein, and are not related to a service-connected disability. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1310, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.309, 3.311 (2021). 3. The criteria for entitlement for service connection for purposes of accrued benefits have not been met. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the appellant requested a hearing before the Board in a September 2016 VA Form 9. In April 2019 and July 2021 letters, she was informed that hearings were scheduled for June 2019 and September 2021, respectively. However, on both occasions, she failed to appear without explanation. She has not requested that a hearing be rescheduled. As such, the hearing request is considered withdrawn, and the Board will proceed accordingly. Service Connection for the Cause of the Veteran's Death VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be considered a principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For the disability to constitute a contributory cause, it must have substantially or materially contributed to death. It is not sufficient to show that it casually shared in producing death, but rather a causal connection must be shown. 38 U.S.C. §§ 1310; 38 C.F.R. § 3.312. A contributory cause of death is inherently one not related to the principal cause. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had a "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The Veteran died in October 2013 at the age of 71. His immediate causes of death were an intracranial hemorrhage, treatment for DVT, and pneumonia. Other significant conditions included MDS, atrial fibrillation, and chronic kidney disorder. At the time of his death, he received noncompensable ratings for hemorrhoids, actinic keratosis, spider veins, fractured eighth and tenth ribs, and osteoarthritis of the bilateral wrists. The appellant has not argued that the Veteran's death stemmed from his service-connected disabilities. Moreover, the medical evidence does not support a finding that hemorrhoids, a skin disorder, fractured ribs, and a wrists disability contributed to his death. Therefore, the medical evidence does not support a finding that a service-connected disability caused the Veteran's death. As to whether the cause of the Veteran's death was related to service, a review of the service treatment records (STRs) reveals that he had a history of bronchitis in service, but no breathing problems. To this end, a May 1975 treatment note found that his chest was clear to percussion and auscultation, and July 1982 and November 1988 imaging found that his heart was normal and his lungs were clear. Additionally, an August 1987 treatment note reported that the Veteran's risk index was less than 5 and his clinical data, fasting blood sugar, and ECG indicated were normal. Further, multiple examinations between July 1969 and August 1991 found that his lungs, chest, and heart were clinically normal. Rather, the medical evidence first diagnosed thrombocytosis in November 2011, symptoms of MDS and a chronic kidney disorder as early as February and August 2013, respectively, atrial fibrillation in August 2013, and pneumonia and an intracranial hemorrhage in October 2013. Therefore, the medical evidence does not support a finding that the disorders that caused the Veteran's death were directly related to service. Next, in a March 2014 lay statement, the appellant asserted that the Veteran had service in the Republic of Vietnam in combat "in the zone where Agent Orange was spread." She noted that Agent Orange was a known causative factor of MDS and explained that prior to his diagnosis, he was in excellent health, exercised frequently, and was an active part of his community and church. She opined that his decline in health and ultimate death was caused by MDS, and that MDS stemmed from his in-service exposure to Agent Orange. The Veteran's DD-214 reveals that he was awarded the Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and the Vietnamese Cross of Gallantry with Silver Star. As such, service in the Republic of Vietnam is established and herbicide exposure, to include exposure to Agent Orange, is presumed. However, none of the Veteran's causes of death, including MDS, constitute presumptive disorders for herbicide exposure under 38 C.F.R. § 3.309(e); therefore, service connection for the cause of the Veteran's death on the basis of presumptive in-service exposure to herbicides is not warranted. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board has considered the claim on a direct causation basis. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). In a November 2013 letter, a private clinician recounted that he cared for the Veteran as he developed MDS and myelofibrosis. The clinician asserted that there was "evidence [that could] be presented" which demonstrated the link between MDS and Agent Orange exposure, noting that in a prior Board decision pertaining to a different veteran, the Board determined that the veteran's exposure to Agent Orange was a factor in the development of MDS. Ultimately, the examiner opined that it was his feeling that the causes of the Veteran's death "were probably related to his exposure to Agent Orange." However, the clinician's rationale was based on unrelated prior Board decisions rather than either the Veteran's diagnoses and medical history or medical literature. Moreover, the opinion itself was speculative. Words such as "could be" and "probably" do not rise to the level to support service connection. As such, while the November 2013 clinical opinion is assigned lesser probative value. Therefore, the evidence does not establish service connection for the cause of the Veteran's death on the basis of in-service exposure to herbicides. Next, in the November 2013 opinion, the clinician asserted that "it also [was] possible that [the Veteran's MDS] could be related to the radiation exposure that he experienced." Under § 3.309(d), presumptive service connection may be warranted for a disability claimed to be attributable to in-service radiation exposure: (i) if a disease listed under 38 C.F.R. §§ 3.309(d) and 3.311 manifests in a radiation-exposed veteran; or (ii) if the VA Under Secretary for Benefits determines that a certain "radiogenic" disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311. Service connection may also be warranted for a disability claimed to be attributable to in-service radiation exposure with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the record does not establish that the Veteran was a radiation-exposed veteran under the provisions of 38 C.F.R. §§ 3.309(d). To this end, the STRs and personnel records do not demonstrate that he participated in a radiation risk activity. Indeed, his DD-214 shows that he did not serve in World War II or its immediate aftermath and that his military occupational specialties were servicing in general finance and as a comptroller. To the extent that direct causation is alleged, the clinician did not provide a rationale for the November 2013 opinion. Moreover, the opinion itself is speculative. As such, the November 2013 statement is also assigned lesser probative value as to a nexus between direct radiation exposure and the Veteran's MDS, and the medical record does not establish service connection for the cause of the Veteran's death on the basis of in-service radiation exposure. In sum, after careful review, the medical evidence does not establish that the causes of the Veteran's death were the product of in-service exposure to either Agent Orange or radiation exposure or were otherwise related to service. Entitlement to Accrued Benefits Accrued benefits are "periodic monetary benefits . . . authorized under law administered by [VA], to which a payee was entitled at his or her death or those based on evidence in the file at the date of death, and due and unpaid . . ." 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). An "application for accrued benefits must be filed within one year after the date of death." 38 C.F.R. § 3.1000(c). Claims for death pension, compensation, or dependency and indemnity compensation (DIC), by an apportionee, surviving spouse, child, or parent are deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000. In order to establish entitlement to accrued benefits, the deceased veteran must have had a claim pending at the time of his death or be entitled to benefits under an existing disability evaluation or decision. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Generally, only evidence contained in the file at the time of the veteran's death will be considered in reviewing a claim for accrued benefits. This includes STRs and VA medical records, which are considered to be constructively in the claims file at the date of death, even though they may not physically be in the file until after that date. 38 C.F.R. § 3.1000(d)(4). Thus, after the veteran's death, the appellant cannot furnish, and VA cannot develop, additional evidence that might better substantiate the claim of entitlement to accrued benefits. Ultimately, for a claim to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits; (ii) the veteran had a claim pending at the time of his or her death; (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000. Here, the appellant filed a claim of entitlement to service connection for the cause of the Veteran's death in November 2013, less than a month after the date of his death. However, the record does not show that he had a pending claim at the time of his death. Further, while he was service connected for hemorrhoids, rib fractures, osteoarthritis of the wrist, actinic keratosis, and spider veins, the disorders were each assigned noncompensable ratings at the time of his death and his combined rating was noncompensable. Accordingly, the evidence does not support entitlement to accrued benefits. The Board has considered prior Board decisions submitted by the appellant in which the Board granted service connection for another veteran based on exposure to Agent Orange and resolved reasonable doubt in their favor in doing so. However, Board decisions are not precedential, and each veteran's case is reviewed individually and decided on their own facts. As such, those decisions have no probative value as it relates to this appeal. 38 C.F.R. § 20.1303; See also McDowell v. Shinseki, 23 Vet. App. 207, 228 (2009). The Board has also considered statements submitted by the appellant regarding the Veteran's in-service exposure to Agent Orange and the causes of his death. While she is competent to report her observations because this requires only personal knowledge as it comes to her through her senses, she is not competent to provide a complex medical opinion such as the cause of the Veteran's death. Such competent evidence concerning the cause of his death has been provided by the medical personnel who have rendered pertinent opinions during the current appeal. The medical findings (as provided in the medical treatment records and examinations) directly address the criteria under which this issue is evaluated. Accordingly, the Board attaches greater probative value to the clinical findings than to the lay evidence and statements that have been submitted. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, Associate 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.