Citation Nr: 21014628 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-41 215 DATE: March 15, 2021 ORDER Entitlement to dependency and indemnity compensation (DIC) benefits for the Veteran's cause of death is denied. FINDING OF FACT 1. The Veteran passed away in January 2015 and his death certificate lists his immediate cause of death as septicemia and infective endocarditis. 2. At the time of the Veteran’s death, service connection was in effect for residuals of skull fracture, traumatic encephalopathy, disequilibrium, bilateral hearing loss, and tinnitus. 3. The competent and probative evidence of record reflects that the Veteran’s cause of death is unrelated to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 1312; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1953 to May 1955. This matter comes before the Board of Veterans’ Appeals (Board) from the June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared at a February 2018 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In the June 2015 decision, the Board denied the Veteran’s claim for entitlement to dependency and indemnity compensation. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the June 2015 decision’s denial of entitlement to dependency and indemnity compensation. On July 1, 2020, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). In November 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence in the Appellant’s claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to dependency and indemnity compensation (DIC) benefits for the Veteran's cause of death The Appellant asserts that the Veteran’s cause of death is related to the Veteran’s service-connected residuals of skull fracture and traumatic encephalopathy, and more specifically, the plate inserted into the Veteran’s head as a result of this in-service injury. The Veteran’s death certificate is of record and lists as the immediate cause of death at age of 81 years as septicemia and infective endocarditis. Additionally, the Veteran’s death certificate lists aortic insufficiency and atrial fibrillation as other significant conditions contributing to death but not resulting in the underlying immediate cause of death. When a Veteran dies of a service connected disability, the Veteran’s surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The death of a Veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. In a June 2016 correspondence, the Appellant summarized her contentions as follows: in 1955, the Veteran had a plate surgically inserted into his head due to a loss of skull bone in service. As a result of this plate and injury, the Veteran incurred hearing loss and vision issues. Thereafter, in late 2013 and early 2014, the Veteran began experiencing increased health issues such as mental status changes, memory loss, forgetfulness, and balance problems due to the plate and his service-connected encephalopathy. Following these issues, VA physicians stated that they wished to start him on a series of tests to evaluate him. However, the Veteran’s health continued to decline, and he was ultimately admitted to the VA hospital in January 2015. VA physicians stated that the Veteran had an infection that was attacking his heart. However, the origin of the infection was unknown, and testing could not be performed due to the Veteran’s declining health as well as the metal nature of the plate inserted into the Veteran’s head (precluding the use of MRI imaging). After the infection spread to the Veteran’s organs, and possibly his brain as VA doctors acknowledged, the Veteran ultimately passed away on January 17, 2015. The Veteran’s death certificate lists the cause of death as septicemia and infective endocarditis. The Appellant asserts that when asking the doctors if the Veteran’s infection had come from the plate in his head or the associated scar tissue from his injury, she was told that without the proper tests and procedures, the doctors could neither confirm nor deny this possibility. Subsequently, in May 2015, a VA opinion was obtained regarding the Veteran’s cause of death. The examiner opined that it is less likely than not that the Veteran’s death was due to or the result of his service-connected condition(s). The examiner supported this opinion by stating the official cause of death and that there is no supporting evidence of record that the plate in the skull was a nidus for infection which resulted in the Veteran’s death. The examiner additionally cited a January 2015 chest x-ray that stated that the Veteran could have aspiration pneumonitis or pneumonia and a January 2015 medical note that stated that the Veteran’s sepsis shock was likely due to aspiration. Additionally, subsequent to this examination, a February 2018 letter from the Veteran’s private treating physician stated that doctors at the time of the Veteran’s death “surmised that the plate [in the Veteran’s head] was most likely the nidus of infection seeding his heart valves given no other explanation.” Following this, in May 2018, a Veterans Health Administration medical opinion was requested regarding whether or not the Veteran’s cause of death was caused by his service-connected disability. In response, a September 2019 medical opinion was provided. The VA physician that provided the opinion stated that it is not possible to determine without resorting to speculation whether the Veteran’s cause of death (listed as septicemia and infective endocarditis) was at least as likely as not caused by the Veteran’s service connected residual of skull fracture or traumatic encephalopathy, to include the plate inserted into the Veteran’s head, and any other residuals. Additionally, the VA physician opined that it is not possible to determine without resorting to speculation that the plate inserted into the Veteran’s head was the nidus of infection seeding his heart valves, as indicated in the materials submitted by the Veteran’s private physician. Finally, the physician concluded that the inability to perform an MRI would not have prevented the use of other imaging studies and laboratory evaluation of spinal fluid to diagnose and treat infection of the central nervous system or infective endocarditis. Therefore, the physician concluded that the metal plate inserted into the Veteran’s head was not a contributory cause of death due to preventing the use of an MRI to diagnose and treat the Veteran’s infection. The VA physician stated that infective endocarditis can occur on native heart valves or prosthetic heart valves and the clinical course of infective endocarditic can be acute or subacute. Additionally, the physician stated that the risk of developing infective endocarditis increases in the presence of diseased native heart valves or artificial heart valves, as well as in the presence of bacteremia from another cause. Furthermore, the physician stated that the causative organisms leading to infective endocarditis vary based upon the risk factors and clinical course of the disease. The VA physician noted that the available information in the Appellant’s claims folder does not contain any laboratory test results from January 2015 that identify the causative organism associated with the Veteran’s infective endocarditis. Therefore, the physician opined that it is not possible to determine if one of the risk factors discussed was a likely contributor to development of infective endocarditis. Additionally, the physician noted that imaging studies used in the evaluation of infective endocarditis include echocardiography and that an MRI is not required. The physician elaborated that laboratory evaluation of spinal fluid is more useful than imaging studies in the evaluation of possible infection of the central nervous system (brain). The physician noted that the lack of an MRI imaging study, that could not be performed because of the metal plate in the Veteran’s head, was therefore not critical in the Veteran’s treatment as other imaging studies, such as a CT scan, could have been completed instead. The physician stated that there are no records noting whether spinal fluid was collected for laboratory evaluation. In February 2018, the Appellant testified at a Board hearing. She testified that the Veteran’s private treatment provider indicated that the Veteran’s cause of death could be related to the metal plate in the Veteran’s head. The Appellant testified that the Veteran became more forgetful, his speech became worse, and he started losing his balance more frequently. She testified that the Veteran was taken to Luke’s regional hospital, and they wanted to do an MRI to determine where the infection was but, couldn’t because of the metal in the Veteran’s head. She also testified that the Veteran had troubles with his eyes that were related to service. She testified that the doctors could not determine the cause of the infection. But her private provider indicated it is more than likely caused by the head injury. In the December 2020 addendum medical opinion, the examiner opined that the Veteran’s service-connected conditions less likely than not contributed substantially or materially to the Veteran’s death. As to the rationale, the examiner acknowledged that the Veteran was service connected for loss of part of his skull, with plate placement, and headaches. The examiner stated that there is no evidence in the medical records of infection [seeding] from this plate. The examiner explained that the Veteran, Visited the EC in January 2015 with A fibrillation and Bilateral pleural effusions. His rate was controlled with diltiazem, but unfortunately, he had ileus, vomited and aspired feculent material, and developed sepsis due to aspiration (isolated from cultures was enterococcus, which is found in feces), which lead him to death. There is no relation with his SC head injury and plate. I concur with opinion from Dr. Lee from May 2015. The Board considered the Appellant’s lay testimony, the May 2015, September 2019 and December 2020 VA medical opinions, the February 2018 private opinion, and treatment records, and concludes that the Veteran’s service-connected disabilities are less likely than not contributed substantially or materially to the Veteran's death. The Board acknowledges that the Veteran’s private treatment provider stated that “doctors at the time of the Veteran’s death “surmised that the plate [in the Veteran’s head] was most likely the nidus of infection seeding his heart valves given no other explanation.” However, the private treatment provider did not provide a rationale for that assessment. On the other hand, the May 2015 and December 2020 medical opinions provided a clear rationale. Specifically, that the Veteran had “ileus, vomited and aspired feculent material, and developed sepsis due to aspiration (isolated from cultures was enterococcus, which is found in feces), which lead him to death. There is no relation with his SC head injury and plate.” The Board finds the May 2015 and December 2020 examiner’s combined opinions to be highly probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Appellant’s contentions that she believes that the Veteran’s death is related to his service-connected disabilities. However, the Appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Therefore, it is outside the competence of the Appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2015 and December 2020 medical opinions that could not find a link between the Veteran’s death and his service-connected disabilities and asserted that the Veteran had “ileus, vomited and aspired feculent material, and developed sepsis due to aspiration (isolated from cultures was enterococcus, which is found in feces), which lead him to death.” Therefore, the Board finds that entitlement to dependency and indemnity compensation (DIC) benefits for the Veteran’s cause of death is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate 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.