Citation Nr: 21009171 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 15-34 992 DATE: February 19, 2021 ORDER 1. Dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. 2. DIC under § 1151 is denied. REMANDED DIC based on service connection for the Veteran’s cause of death is remanded. FINDING OF FACT 1. The Veteran (i) was not continuously rated totally disabled for 10 years preceding his death, (ii) was not continuously rated as totally disabled for a period of not less than 5 years from the date of his discharge or release from active duty, (iii) was not a former prisoner of war. 2. There is no evidence or report that the Veteran’s death was related to or caused by carelessness, negligence, lack of skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable in providing treatment, examination, or other care. CONCLUSION OF LAW 1. The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. §§ 1318, 5107; 38 C.F.R. §§ 3.22, 20.1106. 2. The criteria for DIC under 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.22, 20.1106. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1966 to August 1969. He died in October 2013. The Appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Pension Center. The Appellant timely appealed that decision with a March 2014 Notice of Disagreement (NOD) and perfected her appeal in September 2015. In January 2019, a hearing was held before the undersigned Veterans Law Judge and a copy of the transcript has been added to the claims file. This matter was previously remanded in May 2019 and September 2020 for additional development. A review of the record shows that the Appellant has not specifically limited her appeal to consideration of DIC under 38 U.S.C. § 1310 (i.e., DIC based on service connection for cause of death). In both the March 2014 rating decision and the August 2015 statement of the case (SOC) noted the Appellant’s November 2013 application for entitlement to DIC. In the Appellant’s March 2014 NOD, she generally appealed “Denied DIC” and her September 2015 Form 9 appealed all the issues from the SOC. Thus, the Board will also consider whether DIC is warranted under 38 U.S.C. §§ 1318 or 1151 to afford the Appellant a sympathetic review. 1. DIC under 38 U.S.C. § 1318 is denied. VA death benefits may be paid to a deceased Veteran’s surviving spouse in the same manner as if the cause of the Veteran’s death were service-connected, even though the Veteran died of non-service-connected causes, as long as death was not the result of the Veteran’s willful misconduct and, at the time of death: (1) the Veteran had been rated (or was entitled to have been rated) as totally disabled based on service-connected disabilities for a continuous period of at least 10 years immediately preceding death; OR (2) was rated totally disabled continuously since release from active duty and for a period of not less than 5 years immediately before death; OR (3) was rated as totally disabled for a continuous period of at least one year immediately before death if the Veteran was a former prisoner of war who died after September 30, 1999. The “totally disabled” rating in the three options listed above may be either schedular or based on unemployability. 38 U.S.C. § 1318. Prior to his death, the Veteran was service connected with Mucosa-associated Lymphoid Tissue (MALT) or extranodal marginal zone B-cell Lymphoma (hereafter referred to as “MALT lymphoma”). For this condition, he was rated as 100 percent disabling from May 2009 through October 2012, zero percent disabling from November 2012 to April 2013, and 100 percent disabling from April 2013 until his death in October 2013. He was also service connected for Type two diabetes mellitus at 10 percent disabling from January 2013 until his death. Here, the Veteran was continuously rated as totally disabled for approximately 7 months immediately prior to his death, (ii) was not continuously rated as totally disabled for a period of not less than 5 years from the date of his discharge or release from active duty, and (iii) is not shown to be a former prisoner of war. For these reasons, the criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. 2. DIC under 38 U.S.C. § 1151 is denied. DIC benefits are available under 38 U.S.C. § 1151 when a Veteran’s death is (1) caused by VA treatment or examination and (2) proximately due to either carelessness, negligence, lack of skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable. In this case, the evidence does not support this theory of entitlement for a DIC claim. The Appellant has not indicated that his death was related to VA services and the threshold requirements for DIC under this section are also not met. Accordingly, the Board finds there is not a basis for awarding DIC benefits under either statutory section and the preponderance of the evidence is against the appeal in this matter. Although entitlement under these theories must be denied, the core of the Appellant’s claim (i.e., service connection for the cause of the Veteran’s death) is being remanded for additional development. REASONS FOR REMAND 1. Service connection for the Veteran’s cause of death is remanded. In the September 2020 Board remand, the opinion provider was asked to specifically consider and address the carcinogenic effects of the radiation therapy raised in the Veteran’s treating physician’s March 25, 2019 letter. The subsequent opinion did not specifically comment on these carcinogenic effects, as required; accordingly, a remand is required for an addendum opinion. See Stegall v. West, 11 Vet. App. 268, 268 (holding that the Board errs as a matter of law when it fails to ensure remand compliance). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims MUST be processed expeditiously. 2. Ask the original October 2020 VA examiner (if available), or another appropriate examiner, to provide an addendum opinion. The entire claims file should be made available to the examiner, who should confirm that it was reviewed. Applicable medical research and literature should also be consulted and used to support conclusions. (a.) Is it at least as likely as not (a 50 percent probability or greater) that the acute myeloid leukemia (AML) was proximately caused by the radiation therapy the Veteran received due to his service-connected MALT lymphoma? In the rationale, specifically comment on the carcinogenic effects of the radiation therapy raised by the Veteran’s treating physician in his March 25, 2019 letter. [Note, the Board requested the above carcinogenic effects be specifically addressed in its September 2020 remand directives. By law the Board is required to ensure compliance with its directives.] (b.) Regarding the report of the Veteran’s shoulder symptoms beginning in 2010 (see January 2019 Board hearing transcript (especially pages 8-13 where the Appellant reported the Veteran had shoulder aches beginning in 2010 and received a CAT scan or MRI that showed “black” in the shoulder; a bone scan was performed that “came back fine;” and, after AML was determined, she reported the oncologist said, “I should not have accepted that bone scan way back then”), the examiner is reminded that symptoms and not treatment are the essence of evidence the condition existed. It is not clear from the October 2020 rationale that the examiner considered the reported symptoms or discarded the lay reports due to lack of corroborating medical treatment. The following addendum opinion is requested: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s AML was related to the report of shoulder symptoms beginning in 2010 reported in the January 2019 Board hearing transcript? The examiner is reminded that the Appellant is competent (qualified) to provide information about events she witnessed, including the reports of observable symptoms by the Veteran. The examiner should assume, for the purposes of the opinions, that the Appellant’s reports are both accurate and credible. If the lay statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence. If the Veteran’s reported shoulder pains in 2010 are as likely as not related to his later diagnosed AML, is it at least as likely as not (a 50 percent probability or greater) that the AML was proximately caused by his service-connected conditions, especially MALT lymphoma? (c.) In the March 2020 VA examination, when asked to opine if the Veteran’s MALT lymphoma could have metastasized to AML, the examiner noted: “One would expect that if the Veteran’s MALT lymphoma was responsible for his subsequent [AML] that his cancer treating providers would report this. Medical treatment records do not show this.” Further: “MALT lymphoma involves ‘lymphocyte’ cells. AML is a different type of cancer involving a differen[t] cell type, “myeloid’ cells. MALT lymphoma does not turn into AML.” The examiner is reminded that a lack of evidence does not constitute negative evidence unless it can be explained why one would expect the evidence to have been noted. Also, most of the probative value of an opinion comes from its rationale or underlying reasoning. Please provide the following addendum opinion: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s MALT lymphoma metastasized to AML? In the rationale, please thoroughly explain why any missing evidence would have been expected to be provided and clearly explain how the noted supporting data connects to the examiner’s conclusions. [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is required for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.