Citation Nr: 21074817 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-55 661 DATE: December 16, 2021 ORDER 1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of the Veteran is denied. 2. A special monthly survivor's pension is denied. FINDINGS OF FACT 1. The Veteran's cause of death was dysphagia due to a cerebral vascular accident with other significant condition contributing to death of dementia. 2. At the time of his death, service connection was in effect for gastroesophageal reflux disease (GERD) and a right shoulder disability. 3. A service-connected disability was neither the principal nor a contributory cause of death. 4. The cause of the Veteran's death is not related to service and is not related by causation or permanent worsening beyond natural progress to a service-connected disability. 5. The appellant's countable annual income is greater than the applicable maximum annual pension rate (MAPR) for a special monthly survivor's pension. CONCLUSIONS OF LAW 1. The criteria for DIC based on the cause of death of the Veteran have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.304, 3.310, 3.312, 3.1600, 4.125. 2. The criteria for a special monthly survivor's pension are not met. 38 U.S.C. §§ 1503, 1541, 5107; 38 C.F.R. §§ 3.21, 3.23, 3.102, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1944 to October 1946. The Veteran died in April 2016, and the appellant is his surviving spouse. The case is on appeal from a February 2017 rating decision. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. DIC and Cause of Death 1. Service connection for the Veteran's cause of death. Legal Criteria Dependency and Indemnity Compensation benefits are payable to the surviving spouse or child of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the veteran's cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such 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 is inherently one not related to the principal cause. 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; that it aided or lent assistance to the production of death. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of 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. 38 C.F.R. § 3.312(c)(3). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran 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, the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for a posttraumatic stress disorder (PTSD) specifically requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Further, if the veteran's fear of hostile military or terrorist activity, if a psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Analysis The appellant is seeking service connection for the Veteran's cause of death. The Veteran's death certificate shows that he died of dysphagia due to a cerebral vascular accident with other significant condition contributing to death of dementia. The Veteran's VA file shows that at the time of his death he was service-connected for GERD and a right shoulder disability. In May 2011 the Veteran filed a claim of service connection for PTSD. The Veteran was notified in July 2021 that his claim for service connection for PTSD, diagnosed as dementia, was denied. The Veteran did not appeal this decision, and it became final. Unfortunately, most of the Veteran's service personnel records (SPRs) and service treatment records (STRs) are unavailable for review. The RO took efforts to obtain these records, but found in an August 2018 memorandum that the records are unavailable. When a veteran's SPRs or STRs are unavailable, there is a heightened obligation to assist the veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to carefully consider the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Veteran's VA treatment records include a September 2005 neuropsychological assessment performed by a VA psychologist. The psychologist examined the Veteran, reviewed his medical records, and conducted relevant diagnostic testing. The psychologist concluded that the most appropriate diagnosis was dementia of mild to moderate proportions of both vascular and Alzheimer etiologies. The Veteran was afforded a VA examination in May 2012 in which the examiner found that he did not meet several criteria for a PTSD diagnosis and that his sole psychiatric condition was dementia. The examiner stated that dementia was not related to experiences the Veteran had in active duty. After considering the record in its entirety, the Board finds that entitlement to service connection for the Veteran's cause of death is not warranted. In this regard, the Veteran was not service connected for dysphagia, cerebral vascular accident, or dementia. In addition, the appellant does not contend that any of the causes of death were related to the Veteran's service-connected disabilities. Instead, the appellant contends that the Veteran had PTSD due to service that caused or aggravated his dementia. However, the most probative evidence of record does not show that the Veteran was diagnosed with PTSD and that his dementia was not related to service as reflected in the May 2021 examination. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the September 2005 VA psychologist also found that his dementia was related to vascular and Alzheimer etiologies rather than military service or PTSD. The opinions provided by the VA psychologist's and VA examiner's opinions are clear and unequivocal and are based on the relevant information, including the Veteran's statements, SPRs, STRs, post-service treatment records, and diagnostic testing. Moreover, their explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the evidence does not show that the Veteran had a disability related to service that was either a principal or contributory cause of death or contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. Therefore, the claim is denied. 38 C.F.R. § 3.312. The Veteran was and appellant is competent to report his symptoms, but, as lay people, they have not established the competence needed to rebut the expert medical opinions in regard to the nexus question. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). Therefore, their opinions are not afforded probative value. Therefore, as the evidence is not at least in equipoise, the benefit-of-the-doubt doctrine is not applicable and service connection for the Veteran's cause of death is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. II. Pension 2. A special monthly survivor's pension. Legal Criteria Basic entitlement to a survivor pension exists if, among other things, the claimant's income is not in excess of the MAPR specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(a)(3). The MAPR is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the surviving spouse. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which received, except for listed exclusions. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from the Social Security Administration (SSA) is not specifically excluded under 38 C.F.R. § 3.272 and is therefore included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a claimant for unreimbursed medical expenses that were "in excess of 5 percent of the applicable maximum annual pension rate or rates...as in effect during the 12-month annualization period in which the medical expenses were paid." 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred, and must be out-of-pocket expenses for which the claimant received no reimbursement, such as through an insurance company. However, the medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. As a condition of granting or continuing pension, VA may require from an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person, and of any spouse or child for whom the person is receiving or is to receive increased pension. 38 C.F.R. § 3.277(a). VA may require an individual who applies for or receives pension to, as a condition of receipt or continued receipt of benefits, furnish an eligibility verification report upon request. 38 C.F.R. § 3.277(c)(3). If VA requests that a claimant or beneficiary submit an eligibility verification report, but he or she fails to do so within 60 days of the date of request, VA shall suspend the award or disallow the claim. 38 C.F.R. § 3.277(d). Analysis The appellant is seeking special monthly survivor's pension benefits. In a May 2016 pension application form, she reported receiving SSA income and a monthly pension of $222.37. She also reported paying $104 in Medicare premiums each month. In a January 2017 statement, the appellant reported being in nursing home level care. In August 2016 SSA income information was associated with the file. It shows that the appellant received monthly SSA income of $1,470.90 and paid $104.90 in Medicare premiums per month since the Veteran's death in April 2016. In January 2017 additional SSA income information was associated with the file. It shows that the appellant received monthly SSA income of $1,475 and paid $109 in Medicare premiums per month since December 2016. In November 2017 the appellant submitted evidence indicating that she pays $200 biweekly to a provider for assistance with activities of daily living. In a November 2018 rating decision, the RO found that the appellant requires aid and attendance. The Board finds that the appellant's countable income exceeds the applicable MAPRs. The applicable MAPR for a surviving spouse requiring aid and attendance without a dependent was $13,794 in April 2016. The appellant's annualized income at such time consisted of SSA benefits and a pension totaling $20,319.24. Using the appellant's Medicare premiums and claimed expense for aid and attendance, she had $6,458.80 in unreimbursed medical expenses. After reducing the medical expenses by $689 (5 percent of the applicable MAPR), her total medical expense deduction is $5,769.80. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves the $14,549.44 in countable income, which is in excess of the applicable MAPR. Subsequently, the applicable MAPR for a surviving spouse requiring aid and attendance without a dependent was $13,836 in January 2017. The appellant's annualized income at such time consisted of SSA benefits and a pension totaling $20,368.44. Using the appellant's Medicare premiums and claimed expense for aid and attendance, she had $6,508 in unreimbursed medical expenses. After reducing the medical expenses by $691 (5 percent of the applicable MAPR), her total medical expense deduction is $5,817. The appellant's annual income reduced by eligible unreimbursed medical expenses leaves the $14,551.44 in countable income, which is in excess of the applicable MAPR. Thus, the preponderance of the evidence shows that the appellant's countable income has exceeded the applicable MAPRs. Therefore, the benefit-of-the-doubt doctrine is not applicable and entitlement to a special monthly death pension is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. R.M. KELLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.