Citation Nr: 21074905 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-21 090 DATE: December 16, 2021 ORDER Entitlement to service connection for the Veteran's cause of death for purposes of dependency and indemnity compensation (DIC) benefits is denied. FINDINGS OF FACT 1. The Veteran died in December 2013; his death certificate lists renal failure, kidney disease, diabetes, and hypertension as the causes of death; anoxic encephalopathy was listed a significant condition contributing to death but not related to the cause of death. 2. At the time of his death, the Veteran was service connected for an upper extremities' rash, pseudofolliculitis barbae and anoxic encephalopathy. 3. The evidence of record does not show that a service-connected disability was a principal or contributory cause of death. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 38U.S.C. §§1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.309, 3.312, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1978 to November 1984. The Veteran died in December 2013. The Appellant is the Veteran's surviving spouse. This matter was previously before the Board of Veterans' Appeals (Board) in May 2021 at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a July 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the May 2021 Board remand. Entitlement to service connection for cause of death Dependency and Indemnity Compensation (DIC) is a monthly monetary benefit that is payable to a surviving spouse, child, or parent because of the service-connected death of a Veteran. 38 U.S.C. §§ 101 (14); 38 C.F.R. § 3.5 (b). There are three main theories of entitlement to DIC benefits: (1) benefits awarded pursuant to 38 U.S.C. § 1310; (2) benefits awarded pursuant to 38 U.S.C. § 1318; and (3) benefits awarded pursuant to 38 U.S.C. § 1151. Unless specifically limited by a claimant, the Board is required to consider all theories of entitlement to DIC benefits. See 38 C.F.R. § 3.152 (a), (b)(1). DIC benefits under 38 U.S.C. § 1310, commonly referred to as "service connection for cause of death claims," may be awarded when the Veteran died either (1) during active service or (2) died from a disability deemed to be related to a period of active service from which he received a qualifying discharge. 38 U.S.C. § 1310 (b). Generally, a veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty during active military, naval, or air service. 38 U.S.C. §§ 101 (16), 1110; 38 C.F.R. §§ 3.1 (k), 3.303. For deaths after active service, the death will be considered to have been due to a service-connected disability when there is evidence that this service-connected disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). A service-connected disability is the principal cause of death if it singly or jointly with another condition, was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312 (b). A service-connected disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death. 38 C.F.R. § 3.312 (c). The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to service connection for the cause of the Veteran's death. Initially, the Board notes that the Veteran died in December 2013. As the Veteran's surviving spouse, the appellant is eligible for DIC benefits. The Veteran's death certificate lists renal failure, kidney disease, diabetes, and hypertension as the causes of death. Anoxic encephalopathy was listed a significant condition contributing to death but not related to the cause of death. At the time of this death, the Veteran was service connected for an upper extremities' rash and pseudofolliculitis barbae and anoxic encephalopathy. An August 2012 rating decision granted the Veteran service connection under 38 U.S.C. § 1151 for anoxic encephalopathy due to an endoscopic procedure and awarded a 100 percent rating effective May 27, 2011. Subsequent developments involved a proposed severance of service connection for the anoxic encephalotomy, severance of the same in an October 2013 rating decision and reinstatement in a May 2021 Board decision. In accordance with the May 2021 remand instructions, a VA medical opinion was obtained in July 2021. After a review of the claims file, the examiner opined that it was less likely than not that the Veteran's anoxic encephalopathy substantially or materially contributed to the Veteran's death, or that it combined to cause death or that it lent assistance to the production of death. The examiner noted that the Veteran was diagnosed with diabetes and end stage renal failure and was on dialysis. These conditions have never been service-connected. Because of significant dysphagia, or difficulty swallowing, the Veteran had to undergo an esophagogastroduodenoscopy (EGD) to evaluate the condition. Unfortunately, the Veteran suffered a cardiac arrest during a procedure, was resuscitated but suffered anoxic encephalopathy, or inadequate blood supply to the brain. The examiner noted that his was a known risk of the EGD procedure, and while unfortunate, it was unavoidable due to complications from the Veteran's diabetes and renal disease. See July 2021 VA examination report. The Board finds that the July 2021, medical opinion to be of great probative value as it was based upon a review of medical records, included a discussion of relevant facts, and provided an informed rationale with citations to the record. The Board cannot, unfortunately, ignore such significant evidence against this claim. The Board has considered the appellant's contentions with respect to the Veteran's death. The appellant is competent to describe observable symptomatology and the sequences of certain events, but she is not competent to provide an opinion as to the cause of the Veteran's death or whether Veteran's death was proximately due to VA treatment, or whether VA medical personnel demonstrated carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault. An opinion regarding treatment modalities and the cause of death of the Veteran's falls outside the realm of common knowledge of a lay person, that is, the opinion cannot be based on mere personal observation, which comes through sensory perception. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such opinions must be made by persons with medical expertise and clinical training. Id. The appellant has not been shown to possess the requisite medical training or credentials needed to link the Veteran's cause of death with a service-connected disability or with VA treatment. She was accorded the opportunity to furnish medical opinions in support of her claim but has not done so. See 38 U.S.C. § 5107 (a) (it is a claimant's responsibility to support a claim for VA benefits). Thus, while the Board is sympathetic to the appellant's loss of her husband, service connection for the cause of the Veteran's death is not warranted under any theories of entitlement raised by the appellant or by the evidence of record. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant's claim is accordingly denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.