Citation Nr: 21073170 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-46 747 DATE: December 7, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1310, otherwise known as service connection for cause of death, is denied. Entitlement to DIC under the provisions of 38 U.S.C. § 1318, otherwise known as benefits for survivors of totally disabled veterans, is denied. REMANDED Entitlement to DIC under the provisions of 38 U.S.C. § 1151 is remanded. FINDINGS OF FACT 1. The Veteran died in August 2015. The immediate cause of his death was end stage renal disease. 2. At the time of the Veteran's death, he was in receipt of a total disability rating that was first awarded in January 2006. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1310 have not been met. 38 U.S.C. § 1310 (2012); 38 C.F.R. §§ 3.102, 3.312 (2020). 2. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1950 to July 1952. The Veteran died in August 2015 and the Appellant is his surviving spouse. In her September 2016 and February 2017 appeals to the Board, the Appellant elected a videoconference hearing before a Veterans Law Judge. However, she subsequently withdrew this request in July 2021. See July 2021 Status Letter, p. 1. DIC Benefits under 38 U.S.C. § 1310 The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In making this determination, VA will consider whether service connection is warranted for any primary or contributory causes of death. See 38 U.S.C. § 1310(a). Service-connected disabilities involving active processes affecting vital organs should receive careful consideration as a contributory cause of death. Adjudicators should consider whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Veteran died in August 2015. At the time of his death, he was service connected for a number of disabilities, including residuals of fragment wounds in the bilateral upper extremities, bilateral hearing loss, tinnitus, hyperplastic rhinitis, and post-traumatic stress disorder. However, the Veteran's death certificate indicates that nonservice-connected end stage renal disease was the immediate cause of death. See September 2015 Death Certificate, p. 1. The Appellant has not submitted any evidence that connects the Veteran's end stage renal disease to his active duty service or a service-connected disability. After careful consideration of the record, the Board finds that the Veteran did not have a primary or contributory cause of death that was service connected. Moreover, there is insufficient evidence to establish a nexus between the primary cause of death and the Veteran's active duty service or a service-connected disability. The evidence therefore preponderates against the Appellant's claim and service connection for the cause of the Veteran's death is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DIC Benefits under 38 U.S.C. § 1318 Where a Veteran's death is not due to service-related causes, Dependency and Indemnity Compensation benefits may nevertheless be payable if the cause of the Veteran's death is not due to willful misconduct, and the Veteran has been continuously rated totally disabled by reason of service connected disabilities for a period of 10 years or more immediately preceding death; or for five years if the total evaluation was continuously in effect from the date of discharge from military service; or for one year if the veteran was a former POW who died after September 30, 1999. Here, there is nothing in the evidence to suggest that the Veteran's death was the result of his own willful misconduct. Additionally, the Veteran's total evaluation was not continuously in effect from the date of discharge. Also, the Veteran was not a former POW who died after September 30, 1999. Further, the Board finds that the Veteran was not continuously rated totally disabled for a period of at least 10 years immediately preceding his death. More specifically, the Veteran was in receipt of a TDIU from January 20, 2006 until his death in August 2015a period of less than 10 years. Therefore, the Board finds that the criteria for DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have not been met and entitlement is not warranted. REASONS FOR REMAND DIC under 38 U.S.C. § 1151 The Appellant contends that the Veteran died as a result of care administered by VA. See December 2015 Statement in Support of Claim, pp. 1-2; September 2016 Form 9, pp. 1-2; March 2019 Correspondence, p. 1. Specifically, the Appellant argues that the Veteran was placed on medications that should not have been prescribed based on his health conditions and before he was able to be seen by a cardiologist. In June 2016, VA obtained an opinion on whether treatment from VA caused or worsened the Veteran's disability, but the opinion does not contain a rationale. See June 2016 VA Examination, p. 2. As such, the Board finds it to be inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). On remand, the agency of original jurisdiction should take appropriate steps to obtain an independent medical opinion pursuant to 38 U.S.C. § 5109 (2012). The requested opinion should address whether the Veteran's death was the result of treatment he received from VA. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328 (2020). The matter is REMANDED for the following action: Take the appropriate steps to obtain an advisory opinion from an independent medical expert pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328 that is responsive to the following inquiries: (a) Did the Veteran experience any additional disability as a result of the concurrent prescription of diltiazem and metoprolol? (b) For any additional disability that resulted from the concurrent prescription of diltiazem and metoprolol, did such disability bring about the Veteran's death? (c) For any additional disability identified in response to the above, was the additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination? (CONTINUED ON NEXT PAGE) (d) For any additional disability identified in response to inquiry (a), was the additional disability caused by an event not reasonably foreseeable? Specifically, the reviewing specialist is asked to state whether the additional disability was the type of risk that a reasonable health care provider would not have anticipated as a result of the treatment. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.