Citation Nr: 21076694 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-22 099A DATE: December 27, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died on June [REDACTED], 2016. The Death Certificate listed the primary cause of death as cardiac arrest and the secondary cause of death as complications of advanced age. 2. At the time of his death, the Veteran was service-connected for decreased visual acuity left eye with macular hole with visual field loss nasal restriction, conversion reaction, bilateral hearing loss, visual field loss, forehead scar, and tinnitus. 3. The evidence does not show the Veteran's service or a service-connected disability caused or contributed substantially or materially to the Veteran's death. 4. The Veteran was not in receipt of a total rating for 10 continuous years immediately preceding his death, was not rated as totally disabling continuously since his release or discharge from active duty and for at least 5 years preceding death, and was not a prisoner of war. CONCLUSIONS OF LAW 1.The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312. 2. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1942 to December 1944. The Veteran died in June 2016, and his surviving spouse is the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which addressed entitlement to service connection for the cause of the Veteran's death and DIC under 38 U.S.C. § 1318. The SOC also addressed entitlement to service connection for cause of death and DIC under Section 1318. Therefore, both claims are in appellate status and are addressed herein. In her May 2017 VA Form 9 (formal appeal), the appellant requested a Board hearing. Such hearing was scheduled on October 13, 2021. The appellant, however, failed to report to the hearing, and did not provide any reason for her failure to report. As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d) (2020). In June 2019, the appellant submitted a motion to advance this case on the docket based on advanced age. The appellant is over 75 years of age. The Board grants the motion. See 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for the cause of the Veteran's death is denied. To establish service connection for cause of death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, 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 the 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. 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 Veteran's Death Certificate lists the cause of his death as cardiac arrest. At the time of his death, the Veteran was service-connected for the following: decreased visual acuity left eye with macular hole with visual field loss nasal restriction, 50 percent disabling; conversion reaction (previously diagnosed as encephalopathy, post-traumatic), 30 percent disabling; bilateral hearing loss, 20 percent disabling; forehead scar, 10 percent disabling; and tinnitus, 10 percent disabling. Although the Veteran was not service-connected for a cardiac disability at the time of his death, the Board will consider whether this condition can be service-connected, as well as whether it can be linked to any or all of his service-connected disabilities. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (a). The Veteran's service treatment records are silent for any findings, complaints, or treatment of the cardiovascular system. The evidence of record does not show that the Veteran had a cardiac disability that was otherwise related to service, or was caused or aggravated by a service-connected disability. Treatment records did not show a cardiac disability as one of his active medical problems until months before his death. See February 2016 VA treatment record (noting a new onset of atrial fibrillation). Furthermore, the appellant has not alleged a specific incident during service, or that a specific service-connected disability was etiologically related to the Veteran's cause of death. Accordingly, evidence does not show the Veteran's service or service-connected disability caused or contributed substantially or materially to the Veteran's death. There is no doubt to resolve. 38 U.S.C. § 5107 (b). Service connection for cause of death must therefore be denied. 2. Entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied. A surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service-connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran was (1) continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the veteran 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. § 1318 (b); 38 C.F.R. § 3.22 (a). The Board finds that the Appellant's claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted. In this case, the Veteran separated from service in December 1944 and died in June 2016. The Veteran was awarded a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) as of October 5, 2010. The evidence demonstrates that the Veteran was not in receipt of total disability benefits for 10 years immediately preceding his death, did not die less than five years after his separation from service, and was not a POW. The Appellant consequently is not entitled to DIC pursuant to 38 U.S.C. § 1318 as a matter of law. As the disposition of this claim is based on the law, not the facts of the case, this claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.