Citation Nr: 21073065 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-55 616 DATE: December 7, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is dismissed. Entitlement to VA survivor's pension benefits is dismissed. FINDINGS OF FACT 1. The preponderance of the evidence is in favor of finding that the Veteran's service-connected depressive disorder and/or obstructive sleep apnea contributed materially and substantially to his death. 2. The claim for entitlement to DIC under 38 U.S.C.A. § 1318 is moot. 3. The claim for DIC compensation is a greater benefit than an award of death pension; therefore, the claim for death pension is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.312. 2. The claim for entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The claim for basic eligibility for VA survivor's pension benefits is dismissed. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the U.S. Marine Corps Reserve and had an initial period of honorable active duty for training from October 1957 to April 1958. The Veteran died in February 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s September 2018 rating decision. In March 2020, the Board remanded the appellant's claims for additional development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for the cause of the Veteran's death In March 2020, the Board remanded the appellant's claim for additional development to include obtaining a medical opinion as to whether the Veteran's service-connected disabilities of depressive disorder and/or sleep apnea caused or contributed to the Veteran's death. Dependency and indemnity compensation is payable to a surviving spouse, child, or parent either because of a service-connected death occurring after December 31, 1956, or pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. 38 C.F.R. § 3.5. Service connection may be established for the cause of a Veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 116667 (Fed.Cir.2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). The evidence shows the Veteran died of a myocardial infarction and coronary artery disease. During his lifetime, the Veteran was service-connected for a depressive disorder, obstructive sleep apnea, migraines, hearing loss and tinnitus. In February 2020, the appellant (via her attorney) submitted a private physician's medical opinion dated in January 2020 in which the private physician opined that it is as likely as not that the Veteran's depressive disorder and obstructive sleep apnea more likely than not contributed materially and substantially to his myocardial infarction and coronary artery disease and subsequent death. The private physician explained that the Veteran was diagnosed with aortic regurgitation and was considered for valve replacement. While the cause of the Veteran's valve dysfunction is unclear, the private physician stated that higher rates of blood pressure, such as during times of stress would cause further damage to the valve and heighten the Veteran's risk of a myocardial infarction. The private physician also stated that obstructive sleep apnea is a risk factor for coronary artery disease and the Veteran's obstructive sleep apnea was undertreated because he was unable to properly treat it due to his mental health symptoms, which also heightened his risk of coronary artery disease. In contrast, VA obtained a medical opinion from a VA clinician in July 2020 with and addendum in September 2020. In the July 2020 medical opinion, the VA clinician stated that the direct cause of the Veteran's death is listed as an acute myocardial infarction and coronary artery disease. Medical records determine the severity of the atherosclerosis causing the narrowing of the heart arteries that led to the ischemia causing the heart muscle damage or infarction in an 80-year-old person. The VA clinician opined that neither the major depressive disorder nor the obstructive sleep apnea can cause the atherosclerosis or the coronary artery disease that leads to narrowing or lumen obstruction of the heart arteries that led to the acute myocardial infarction. In addition, the Veteran also had aortic stenosis which can be an additional cause of ischemia. However, the clinician also stated that obstructive sleep apnea and depression can aggravate coronary artery disease, but not cause it. The RO sought clarification of this last statement with the VA clinician, to include asking the VA clinician to provide a secondary service connection opinion (i.e., the likelihood that the Veteran's coronary artery disease and myocardial infarction were proximately due to or the result of his service-connected depressive disorder and obstructive sleep apnea). In a September 2020 addendum, the VA clinician opined that it is less likely than not that the Veteran's obstructive sleep apnea and depression were a causal or contributory cause of death. The death certificate listed acute myocardial infarction and coronary artery disease as cause of death. These two conditions are documented as chronic conditions in medical records and are the mostly likely cause of death. The Board finds that the VA clinician's medical opinion is insufficient as it does not provide an adequate rationale as to why the Veteran's service-connected depressive disorder and obstructive sleep apnea were not a contributory cause of the Veteran's death, especially given the statement she made that they can aggravate coronary artery disease. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, a VA medical examination report is entitled to no weight in a service-connection determination when it merely ventures a conclusion without appropriate explanatory reasoning. See Id. at 304; Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Hence, the Board does not assign full probative value to the VA clinician's opinion. However, the Board does not find that the private medical opinion lacks probative value as he clearly reviewed the Veteran's medical records and death certificate and set forth a clear rationale for the opinion provided based upon what the records show. Hence, the Board finds that the preponderance of the evidence is in favor of finding that the Veteran's service-connected depressive disorder and/or obstructive sleep apnea contributed materially and significantly to the Veteran's death and, therefore, service connection for the cause of his death is warranted. 2. Entitlement to DIC pursuant to 38 U.S.C. § 1318 If the Veteran's death is determined not to be service connected, pursuant to 38 U.S.C.A. § 1318, entitlement to DIC may be established in the same manner as if the Veteran's death were service connected where it is shown that the death was not the result of willful misconduct, and the Veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death, (2) was rated totally disabled for a period of not less than five years from the date of his discharge or release from active duty or (3) was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318; 38 C.F.R. § 3.22(a). DIC benefits granted to a surviving spouse under § 1318 are paid in the same manner as if the Veteran's death were service connected. See 38 U.S.C.A. § 1318(a). In the present case, as DIC benefits have been granted in this decision based upon the award of service connection for the cause of the Veteran's death, the alternative claim under § 1318 is rendered moot. The Court has indicated that, only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). That is, § 1318 provides an alternate basis for an award of DIC and does not provide any additional benefit for the appellant. Section 1318 is only applicable if the Veteran's death is found to be nonservice-connected. See 38 C.F.R. § 3.22(a). In summary, in light of the grant of service connection for the cause of the Veteran's death under 38 U.S.C. § 1310 in the present case, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and the claim is dismissed. 3. Entitlement to VA survivor's pension benefits Nonservice-connected death pension benefits are generally available to the surviving spouse of a veteran as a result of the veteran's nonservice-connected death. 38 U.S.C. § 1541(a). Basic entitlement exists if the veteran served on active duty for 90 consecutive days or more, part of which was during a period of war; or, was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; or if the surviving spouse meets specific income and net worth requirements. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). In this case, as discussed above, service connection for the cause of the Veteran's death has been granted. Given that an award of death and indemnity compensation benefits is a greater benefit than a nonservice-connected death pension for a surviving spouse, the claim for such benefit is will not be addressed on the merits as it is considered moot and, therefore, dismissed. See 38 C.F.R. § 3.151 (a claim may be considered for compensation or pension, but the greater benefit will be awarded unless the claimant requests otherwise); see also 38 U.S.C. §§ 1311, 1541. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.