Citation Nr: A21002657 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 200305-68371 DATE: February 3, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. Entitlement to Survivors’ Pension is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in July 1990; the death certificate shows the immediate cause of death was carcinoma of the pancreas. 2. The preponderance of evidence is against a finding that a disability of service origin or a service-connected disability caused or contributed to the Veteran’s death. 3. At the time of the Veteran’s death, service connection was not in effect for any disability. 4. For the applicable annualization period, the appellant’s countable income exceeds the applicable maximum annual pension rate. 5. The claim for accrued benefits was not received within one year after the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.310, 3.312. 2. The criteria for entitlement to DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for entitlement to Survivors’ Pension have not been met. 38 U.S.C. §§ 1503, 1521, 1541, 1542, 5103; 38 C.F.R. §§ 3.3, 3.23, 3.159, 3.271, 3.272, 3.273. 4. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. §§ 1110, 5107(b), 5121; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1969. He passed away in July 1990. The appellant is his surviving spouse. This matter comes to the Board from a February 2020 rating decision of a VA Regional Office (RO). In the February 2020 rating, inter alia, the RO denied entitlement to service connection for the cause of the Veteran’s death. The Board notes that this issue was the subject of a prior and final Board decision dated in June 2000. It appears that in the rating on appeal that the RO readjudicated the claim based upon the receipt of new and relevant evidence; thus, the Board need not reach this issue. 1. Entitlement to service connection for the cause of the Veteran’s death. The appellant seeks entitlement to service connection for the cause of the Veteran’s death. Dependency and indemnity compensation may be awarded to a veteran’s surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310; see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). To warrant service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or otherwise be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. Where there are primary causes of death that by their nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, it would generally not be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran served in Vietnam, and he is presumed to have been exposed to tactical herbicide agents. He died in July 1990 from carcinoma of the pancreas. However, the cancer that caused his death is not among those subject to presumptive service connection based upon herbicide exposure and no evidence of cancer appears in the first post-service year. The issue is thus whether the Veteran’s presumed exposure to herbicides resulted in his death from carcinoma of the pancreas. A review of the record documents that the Veteran was assessed as having carcinoma of the pancreas only months before his death in July 1990. Private medical records beginning in the 1980s document the Veteran’s recollection of having been exposed to chemicals in Vietnam. As noted, exposure to tactical herbicide agents is conceded. Of record is a January 1995 letter from A.W.P., M.D. In the letter the doctor noted that the Veteran developed abdominal pain in 1989. Dr. P. related that the Veteran’s cancer was a most unusual presentation in a patient that had no history of carcinoma whatsoever. Dr. P. noted that the Veteran did not smoke cigarettes or abuse alcohol. Also, of record is January 1995 letter from L.J.B., M.D. In this letter, DR. B. states that because of the Veteran’s young age and no family history of carcinoma, occasional alcohol use and rare use of cigarettes, that “the possibility of his cancer [having] been caused by the Agent Orange cannot be excluded.” In January 1995, the appellant testified before a Board member. The testimony offered at the hearing relates to the appellant’s recollection of the primary site of the late Veteran’s cancer, as well as things she heard clinicians say about cancer in Vietnam veterans. At this hearing, the appellant’s representative referred to a scholarly article that related to the incidence and increased risk of pancreatic cancer in exposures to certain chemicals, usually in the manufacturing setting. In June 1999, VA obtained medical opinion on the question of the likelihood that the veteran’s pancreatic cancer was causally related to exposure to herbicides during Vietnam service. The examiner reviewed the clams file and stated that recent National Academy of Sciences literature on veterans and herbicides was also reviewed and showed that several well-designed studies had found limited/suggestive evidence of no association between pancreatic tumors and TCDD or herbicide exposure. She further related that scientific evidence continued to support the classification of such cancers in this category and that several adequate studies covering the full range of levels of herbicide exposure humans were known to encounter were mutually consistent in not showing a positive association. The June 1999 examiner reported that she reviewed eight years of medical literature regarding herbicides, and the review essentially indicated that there was no related incremental cancer risk in humans. Further, according to the opinion report, the examiner consulted a prominent gastroenterologist with specific expertise on pancreatic disease. The consultant opined that there was no causal relationship between pancreatic cancer and Agent Orange/herbicide exposure. The writer provided the opinion, apparently of three clinicians consulted, that it was less likely that the fatal pancreatic cancer was causally related to herbicide exposure during Vietnam service. Resolution of this claim depends on the relative probative weight assigned to the letters from Dr. P. and Dr. B. vis a vis the June 1999 VA opinions. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As is true with any piece of evidence, the credibility and weight to be attached to evidence are within the province of the Board as adjudicators. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board concludes that the opinions of Dr. P. and Dr. B. are far less probative than the June 1999 VA opinion. Dr. P. and Dr. B.’s opinions indicate only a possibility that the carcinoma of the pancreas is related to herbicide exposure. Thus, they are speculative at best. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. at 30, 33 (1993) (a medical opinion expressed in terms of may also implies may or may not and is too speculative to establish a plausible claim); see also Davis v. West, 13 Vet. App. 178, 185 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998). Given the speculative nature of these opinions, the Board cannot afford them much, if any. probative value. On the other hand, the VA opinion is based upon a full review of the record and properly addresses the probability that herbicide exposure resulted in carcinoma of the pancreas the Veteran’s death. The Board acknowledges the appellant’s assertions that the Veteran’s death from carcinoma of the pancreas was caused by exposure to tactical herbicide agents. However, the appellant, as a layperson, is not competent to link cancer of the pancreas (the cause of the Veteran’s death) to such exposure. The issue is obviously medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the appellant’s assertions are of no probative value. Entitlement to service connection for the cause of the Veteran’s death is not established. The Board has found the appellant’s assertions and the letters from Dr. B. and Dr. P. to be minimally probative. Otherwise, there appears no evidence in favor of granting the claim. The certificate of death shows that the Veteran died from carcinoma of the pancreas. Moreover, the VA examiner’s opinion competently addresses the relationship between herbicide exposure and the Veteran’s cause of death, and the VA examiner concluded there is no causal relationship between the two. There is otherwise no suggestion that the Veteran’s death is attributable to service in any manner. The preponderance of the evidence is against the claim and it is therefore denied. Gilbert, supra. 2. Entitlement to DIC under 38 U.S.C. § 1318. The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318. In pertinent part, 38 U.S.C. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran’s death was not service-connected, provided that the veteran was in receipt of or “entitled to receive” compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least 5 years from the date of his discharge or release from active duty, for 10 or more years immediately preceding his death or 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. 38 C.F.R. § 3.22. For purposes of this section, “entitled to receive” means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran’s dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (6) VA was withholding payments because the veteran’s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. 38 C.F.R. § 3.22. At the outset, the Board notes that pursuant to Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), it need not review whether there is any other disorder of record that could have been service-connected and then assigned a total rating. In Rodriguez, the Federal Circuit Court determined that the theory of hypothetical entitlement need not be applied. Id. In this case, there was no claim pending for DIC benefits claimed under the provisions of 38 U.S.C. § 1318 on January 21, 2000, as the appellant filed her claim for DIC benefits in July 2019 Hypothetical entitlement is not for application in this case. The only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the 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 (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision that were not previously considered by VA 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 applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the evidence of record, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits have not been met. The Veteran plainly did not meet the durational requirement for a total disability rating in existence during his lifetime under 38 U.S.C. § 1318. The Veteran died in July 1999. At the time of his death, service connection was not in effect for any disability. Thus, the Veteran was not rated as totally disabled for a period of at least 5 years from the date of his discharge or release from active duty (August 30, 1952), or for at least 10 years preceding his death. There is likewise no indication that he was a prisoner of war. As noted, one possible way of prevailing on a claim for benefits under 38 U.S.C. § 1318 is to show that such requirements would have been met, but for clear and unmistakable error in a previous decision. For there to be a valid claim of CUE in a prior final decision, either the correct facts as they were known at the time in question were not before the adjudicator or the legal provisions effective at that time were improperly applied; conversely, a mere difference of opinion in the outcome of the prior adjudication, including insofar as how the evidence was weighed or evaluated, or a failure in the duty to assist, are not grounds for a finding of CUE. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); Luallen v. Brown, 8 Vet. App. 92 (1995). In Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002), the Federal Circuit noted that any claim of CUE must be pled with specificity. The appellant has made no pleading of CUE. For the foregoing reasons, the appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. In fact, in a case such as this, where the law and not the evidence is dispositive, the claim should be denied and the appeal to the Board terminated because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to Survivors Pension Basic entitlement to VA nonservice-connected improved death pension benefits exists if: (i) the veteran had qualifying service (a veteran who served during wartime); or (ii) the veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1541; 38 C.F.R. § 3.3(b)(4). The Veteran served during the Vietnam era. His service records document honorable qualifying service. The purpose of VA pension benefits is to provide a subsistence income for the surviving spouses of veterans of a period of war who were totally disabled. Pension benefits are based upon total family income and the amount of pension benefits is adjusted based upon the number of dependents the appellant supports. Recipients of pension income are required to report any changes in income and net worth, and number or status of their dependents in a timely fashion. 38 U.S.C. §§ 1541, 1542. The rate of pension payable to an entitled payee is based on the amount of countable income received. Pension is payable at a specified annual maximum rate, which is reduced on a dollar for dollar basis by income on a 12-month annualized basis. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23. The maximum annual rate of pension (MAPR) is established by statute every year and is reduced by the surviving spouse’s countable annual income. Annual income includes the surviving spouse’s own annual income, and, with certain exceptions, the annual income of each child of the veteran in the custody of the surviving spouse. 38 C.F.R. § 3.23(d)(5). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income) shall be included during the 12-month annualization period in which received, except for the exclusions set forth in 38 C.F.R. § 3.272. 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Fractions of dollars will be disregarded in computing annual income. 38 C.F.R. § 3.271(h). For purposes of calculating pension benefits, total income may be reduced by amounts equal to amounts paid by a surviving spouse for unreimbursed medical expenses, to the extent that such amounts exceed five percent of the applicable MAPR for the surviving spouse as in effect during the 12-month annualization period in which medical expenses were paid, regardless of when the indebtedness occurred. 38 U.S.C. §§ 501, 1503(a)(8); 38 C.F.R. § 3.272(g). Expenses of last illnesses, burials and just debts, incurred by a surviving spouse, which are paid during the calendar year following that in which death occurred may be deducted from annual income for the 12-month period in which they were paid or from annual income for any 12-month annualization period which begins during the calendar year of death, whichever is to the claimant’s advantage. Otherwise, such expenses are deductible for the 12-month annualization period in which they were paid. 38 C.F.R. § 3.272(h). Effective December 1, 2018, the MAPR for a survivor with no dependents, was $9,078.00. See Past rates: 2019 VA Survivors Pension benefit rates: https://www.va.gov/pension/survivors-pension-rates/past-rates-2019/. No other MAPR is at issue in this decision. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant’s income is excessive. As noted above, the MAPR in this case is $9,078.00. Here, the appellant has reported income from Social Security Administration (SSA) disability benefits and a retirement pension. During the applicable initial annualization period, the appellant received $15,930.00 in income from SSA and $3,778.08 from the retirement pension. She has claimed no deductible medical expenses. Thus, her total countable income for the annualization period is $19,708.08, which is well in excess of the applicable MAPR. Accordingly, entitlement to DIC is not established. 4. Entitlement to accrued benefits. Accrued compensation to which a veteran, at death, was entitled shall be paid to the first living person listed in 38 U.S.C. § 5121(a)(2)(A). Applications for accrued benefits must be filed within one year of the date of death. 38 U.S.C. § 5121(c). Entitlement to accrued benefits is not warranted. The Veteran passed away in July 1999. The appellant filed the current claim for accrued benefits in July 2019, or 20 years following the Veteran’s death. Accordingly, entitlement to accrued benefits is denied. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.