Citation Nr: 21076258 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 19-04 940 DATE: December 23, 2021 ISSUES 1. Entitlement to service connection for cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318. ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDINGS OF FACT The Veteran was not evaluated as totally disabled as a result of his service-connected disabilities for 10 continuous years immediately preceding death; was not rated as totally disabled continuously for a period of five years from the date of his discharge from active duty; and is not shown to have been a former prisoner of war. CONCLUSION OF LAW The criteria for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from May 1965 to April 1967. The Veteran died in August 2017. The Appellant is the Veteran's surviving spouse. In November 2017, the Appellant filed a claim for of entitlement to dependency and indemnification and service connection for the Veteran's cause of death. In a November 2017 rating decision, the RO denied the claim. In August 2021 the Appellant appeared before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is associated with the record. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board.to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the veteran's death was not the result of his own willful misconduct and, at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for a period of at least five years immediately preceding death; or, (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. See 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). In essence, the only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the above-described statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error in a previous decision; or, (3) to show that service department records were in existence at the time of a prior VA decision but were not considered by VA, and that such records provide a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively. Under the current version of 38 C.F.R. § 3.22, Dependency and Indemnity Compensation benefits may not be awarded based on "hypothetical entitlement" for ten years preceding the veteran's death, no matter when the claim was filed. See Tarver v. Shinseki, 557 F.3d 1371, 1374-77 (Fed. Cir. 2009); Rodriguez v. Peake, 511 F.3d 1147, 1156 (Fed. Cir. 2008). In the instant case, the Veteran was released from active duty in April 1967. At the time of his death in August 2017, he was only service connected for type II diabetes mellitus at 20 percent effective December 12, 2012. Therefore, a total disability rating was not in effect for a continuous period of 10 years immediately preceding his death in August 2017. Moreover, there is no evidence to suggest, and the appellant does not allege, that the Veteran was a prisoner of war. The Veteran was not rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; was not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death; and has not been shown to be a former prisoner of war. 38 C.F.R. § 3.22 (a). Thus, the statutory criteria under 38 U.S.C. § 1318 have not been met. The preponderance of the evidence is against the claim of entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318, the benefit of the doubt doctrine does not apply, and the appellant's claim must be denied. See 38 U.S.C. § 5107. The Board is sympathetic to the appellant's loss and recognizes the Veteran's honorable service to his country, however, it is bound by the law and regulations governing the payment of VA benefits and regrets that a favorable determination could not be made in this issue. REASONS FOR REMAND Entitlement to service connection for cause of death is remanded. The Appellant asserts that the Veteran's death is related to or the result of his service in Vietnam and conceded exposure to Agent Orange. Dependency and Indemnity Compensation (DIC) 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. The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312 (a). A principal cause of death is one in which a service-connected 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 one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era. See 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Direct service connection requires competent evidence of a current disability, a precipitating in-service event, and a causal connection between such an event and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, "[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in... Vietnam" during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (quotation marks omitted). Initially, the phrase "service in the Republic of Vietnam" meant service only on Vietnam's landmass and inland waterways. Effective January 29, 2019, the meaning of this phrase was expanded to encompass service within Vietnam's 12-nautical-mile territorial sea. Id. Assuming a Veteran establishes that, during the Vietnam era, (s)he served in Vietnam within the parameters set forth in Procopio, VA regulations allow him/her to obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303 (d). Specifically, 38 C.F.R. § 3.307 provides that a Veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307 (a)(6)(iii). In this case, the Appellant asserts that the Veteran suffered from both ischemic heart disease and diabetes mellitus type II. See August 2021 Hearing Transcript. While at the time of the Veteran's death he was only service connected for diabetes mellitus type II, both ischemic heart disease and diabetes mellitus type II are presumptive conditions due to Agent Orange exposure. The Veteran's death certificate indicates that the immediate cause of death was congestive heart failure (etiology unknown), and the sequential cause of death was cerebrovascular accident. An opinion was furnished in December 2018. The examiner provided the following opinion: "The Veteran's congestive heart failure was related to his atrial fibrillation/atrial flutter/ tachycardia-bradycardia requiring pacemaker but there was no significant ischemic heart disease contributing to his death. He developed right sided cerebral infarcts with left sided hemiplegia which were most likely embolic from the atria related to his arrhythmias." The examiner further noted that diabetes mellitus type II and ischemic heart disease and their medications did not cause disability such that he was unable to resist the effects of other conditions causing death, rather it was his embolic strokes that caused his debility. Further, the examiner noted that there were no treatments or conditions in his service treatment records that led to death. The Appellant contends that the standard does not require the disability to be "significant" to contribute to one's death and therefore asserts that the examiner's opinion is inadequate. See August 2021 Hearing Transcript. Rather, as noted above, the death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). Additionally, the Appellant at the August 2021 videoconference hearing asserted that medical literature indicates that there is a strong correlation between atrial fibrillation and ischemic heart disease, coronary heart disease and that it seems to form a vicious cycle. On remand, the Board requests that such literature is considered and addressed. See article entitled "Coronary heart disease and atrial fibrillation: a vicious cycle" by F.L. and Y.W. Last, the Board notes that records from the Veteran's final hospitalization and/or treatment are absent from the record. Such records are important and necessary in order to properly consider the Veteran's entire medical history. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. For all outstanding private treatment records, to include those that exist from the nursing home facility and any prior hospitalizations or treatment, ask the Appellant to identify any relevant private treatment records and request that the Appellant submit or authorize for release such private treatment records. If no records are available, a negative response should be associated with the claims file. The Appellant and her representative are to be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Appellant should also be offered the option to provide any such record herself. 2. Contact the Appellant and notify her that she is welcome and encouraged to provide any medical evidence and literature related to the claim, to include the article noted at the August 2021 Board Hearing, "Coronary heart disease and atrial fibrillation: a vicious cycle" by F.L. and Y.W. 3. Thereafter, forward the complete claims file to the physician who provided the December 2018 opinion. If this provider is not available, please forward the claims file to an appropriate medical professional for a comprehensive review of the record and to render the requested opinions. Following a full review of the record, the medical professional is asked to address the following: Ischemic Heart Disease: (a.) Did the Veteran have ischemic heart disease prior to his death in August 2017? (b.) If so, was ischemic heart disease the immediate or underlying cause of death or was etiologically related thereto? (c.) Did ischemic heart disease contribute substantially or materially to cause death, or aid or lend assistance to the production of death? The examiner is reminded that the Veteran's disability need not have been "significant" but rather the death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one in which a service-connected 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 one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). The examiner is to acknowledge and consider the article mentioned by the Appellant at the August 2021 Board Hearing, "Coronary heart disease and atrial fibrillation: a vicious cycle" by F.L. and Y.W., which she asserts finds a strong correlation between atrial fibrillation and ischemic heart disease, coronary heart disease and that it seems to form a vicious cycle. A complete rationale should be provided for any opinion stated, including citation to specific evidence of record and/or medical authority as appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Diabetes Mellitus Type II: (d.) Was diabetes mellitus type II the immediate or underlying cause of death or etiologically related thereto? (e.) Did diabetes mellitus type II contribute substantially or materially to cause death, or aid or lend assistance to the production of death? The examiner is reminded that the Veteran's disability need not have been "significant" but rather the death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one in which a service-connected 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 one which a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). A complete rationale should be provided for any opinion stated, including citation to specific evidence of record and/or medical authority as appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, readjudicate the claims and if any claims remain denied, issue a supplemental statement of the case (SSOC) and provide the Appellant the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.