Citation Nr: 21016036 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-43 164 DATE: March 19, 2021 ORDER Service connection for the Veteran’s cause of death is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran died in July 2013. His death certificate lists cardiopulmonary arrest and coronary artery disease as the immediate cause of death. Chronic obstructive pulmonary disease (COPD) is listed as a contributing cause of death. 2. At the time of his death, the Veteran was service connected for a bilateral hearing loss disability. 3. The preponderance of the evidence is against a finding that the Veteran’s service-connected disability caused or contributed materially to the cause of his death. 4. The preponderance of the evidence is against finding that cardiopulmonary arrest, coronary artery disease, or COPD began during active service, or are otherwise related to an in-service injury or disease. 5. The Veteran’s service-connected disability did not preclude him from securing or following substantially gainful employment consistent with his education and background. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran’s cause of death are not met. 38 U.S.C. §§ 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2020). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Philippine Guerilla Service from December 1944 to January 1946. He died in July 2013. The appellant is his surviving spouse. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded these matters for further development. A. Duties to Notify and Assist Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, appellate review may proceed without prejudice to the appellant with respect to her claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Cause of Death To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause it must contribute 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. To be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, endocarditis, and myocarditis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the time of the Veteran’s death, he was service connected for a bilateral hearing loss disability, rated as 30 percent disabling. The Veteran’s death certificate lists cardiopulmonary arrest and coronary artery disease as the immediate cause of death and COPD as a contributing cause of death. There is no competent evidence that demonstrates that the Veteran’s service-connected bilateral hearing loss disability was either the principal or a contributory cause of the Veteran’s death. However, the Board must also consider whether the Veteran’s death was caused by a disability for which service connection should have been established. As noted, the Veteran’s death certificate lists cardiopulmonary arrest and coronary artery disease as the immediate cause of death and COPD as a contributing cause of death. The appellant contends that all of the diseases the Veteran had were the result of his service, but she does not point to any specific in-service incurrence or aggravation of a disease or injury. Additionally, the Veteran’s medical records from his time with the Philippine Guerilla Service are silent for any treatment for any cardiovascular disease or COPD or related symptoms. There is no competent evidence that demonstrates a link between the Veteran’s cardiopulmonary arrest, coronary artery disease, or COPD and the Veteran’s service. The only evidence in support of a relationship between the Veteran’s service and cardiopulmonary arrest, coronary artery disease, and COPD are the appellant’s general lay statements. The Board finds that any lay evidence causally relating the Veteran’s cardiopulmonary arrest, coronary artery disease, or COPD to the Veteran’s service is not entitled to any probative weight. The question of whether the Veteran’s service resulted in the disabilities that caused the Veteran’s death, to include cardiopulmonary disability, coronary artery disease, or COPD is a complex medical question not capable of lay observation, and is not otherwise the type of medical question for which lay evidence is competent evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (“Generally, lay testimony is not competent to prove that which would require specialized knowledge or training.”). The Board recognizes that certain heart-related diseases, including cardiovascular-renal disease, endocarditis, and myocarditis, are listed as chronic diseases in § 3.309 and are therefore subject to presumptive service connection. However, there is no indication that the Veteran’s coronary artery disease manifested to a compensable degree within one year of discharge from the Philippine Guerilla Service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran was discharged from the Philippine Guerilla Service in January 1946 and the earliest indication of a possible heart disability, including coronary artery disease, occurred over 53 years after, during private treatment in April 1999 that shows an assessment of aortic sclerosis. Consequently, the Veteran’s cardiac disability did not manifest to a compensable degree within one year of discharge from the Philippine Guerilla Service. Likewise, the Board has considered and rejects continuity of symptomatology. As explained above, approximately 53 years lapsed since the Veteran’s service in the Philippine Guerilla Service to the first indication of a cardiovascular disease. Conditions indicative of a cardiovascular disease were not noted in service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). The evidence does not sufficiently identify a disease entity or establish chronicity in service; thus, it is not necessary to further address the evidence regarding continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1339. In sum, the preponderance of the evidence is against a finding that the Veteran’s service-connected bilateral hearing loss disability was either the principal or a contributory cause of death. Additionally, the preponderance of the evidence is against a finding that the Veteran’s death causing conditions of cardiopulmonary arrest, coronary artery disease, or COPD were due to his service in the Philippine Guerilla Service. The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, and 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability in combination, disabilities resulting from common etiology or from a single accident are considered to be one disability. Id. Regulations provide that if the above-mentioned percentage requirements for TDIU on a schedular basis are not met, TDIU may still be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that “substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran’s history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Id. In this case, the Veteran’s only service-connected disability was bilateral hearing loss evaluated as 30 percent disabling. Based on the aforementioned evaluation, the schedular criteria for entitlement to TDIU are not met under § 4.16(a). The issue of entitlement to TDIU on an extraschedular basis has not been referred to the Director of Compensation Service (Director) for extraschedular consideration. The Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, but the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). In the present case, the Board finds that entitlement to TDIU on an extraschedular basis need not be referred to the Director for extraschedular consideration. The appellant contends that TDIU is warranted due to the Veteran’s service-connected bilateral hearing loss disability. The preponderance of the evidence is against a finding that the service-connected hearing loss precluded the Veteran from securing or following substantially gainful employment consistent with his education and background. An August 1999 letter from a physician indicates that the Veteran worked most of his life in carpentry, but also did some work in the lumber yards during his early adult years. A December 2012 VA treatment note indicates that the Veteran had a hearing impairment and that he was very hard of hearing. In an April 2013 TDIU application, the Veteran noted that the highest level of education he completed was the seventh grade and that he was entitled to TDIU based on his hearing loss. Based on a review of the evidence of record, the Board finds that the weight of the medical and lay evidence is against a finding that the Veteran’s service-connected disability rendered him unable to obtain and follow a substantially gainful occupation. The Veteran’s service-connected disability caused difficulty with hearing but did not prevent him from securing or following substantially gainful employment consistent with his education and background in doing carpentry. Namely, the Veteran was hard of hearing, but there is no evidence that this disability precluded him from being able to effectively communicate with people such that he would not be able to engage in substantially gainful employment consistent with his history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation in carpentry. In sum, because the record does not reflect that the Veteran was unable to obtain or maintain substantially gainful employment due solely to his service-connected disability, the preponderance of the evidence is against the claim for TDIU and referral of the claim on an extraschedular basis is not warranted. As such, the benefit of the doubt doctrine is inapplicable, and the claim seeking entitlement to TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Patel, 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.