Citation Nr: 21021692 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-15 125A DATE: April 13, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran died in February 2009. 2. The Veteran was not continuously rated totally disabled for the 10 years immediately preceding death, was not rated totally disabled upon separation from service, nor was he a former POW. 3. The preponderance of the evidence is against finding that the Veteran's pneumonia, non-small cell lung cancer, or emphysema began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. 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. 2. The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1944 to February 1946 and October 1946 to July 1968. The Veteran died in February 2009, and the Appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On July 12, 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis destroyed approximately 80 percent of the records NPRC held for Veterans who were discharged from the Army between November 1, 1912, and January 1, 1960. The Board notes that the Veteran’s records were considered fire related (2/11/2012 VA 21-3101 Request for Information). The Veteran’s personnel records and service treatment records have been associated with the file. However, to the extent any in-service records are unavailable and likely destroyed in the NPRC fire, the Board recognizes the VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to DIC pursuant to 38 U.S.C. § 1318. The Appellant has claimed entitlement to DIC (8/12/2013 NOD). 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 (1) was 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 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). There is no indication of record that the Veteran’s death was the result of willful misconduct. The Veteran’s death certificate provides that his death was due to pneumonia, with onset one week prior to his death, and non-small cell lung cancer, with onset one month prior to death. Emphysema was also noted as a significant condition contributing to the Veteran's death, with tobacco indicated as contributing to the Veteran's death (9/07/2011 Death Certificate). Although the Veteran was not in receipt of VA benefits at the time of his death, he was a retiree and his service treatment record reflects an eligibility for service connection for psoriasis (5/20/2015 STR – Medical, pg. 36). Pursuant to the general rating formula for the skin, the highest disability rating that may be assigned for a skin disability is 60 percent. 38 C.F.R. § 4.118. The record does not suggest, nor has the appellant asserted, that the Veteran’s psoriasis was of a severity that a total disability rating would have been warranted, but for his receipt of retirement pay. As the Veteran was not continuously rated totally disabled for the 10 years immediately preceding death, was not rated totally disabled upon separation from service, nor was he a former POW, an award of DIC pursuant to 38 U.S.C. § 1318 is not appropriate in this case as a matter of law. Based on the foregoing, the Appellant’s claim of entitlement to DIC pursuant to 38 U.S.C. § 1318 must be denied. 2. Entitlement to service connection for cause of death. The appellant contends the Veteran developed emphysema that initially manifested during active service and ultimately constituted a pulmonary ailment, contributing to the primary cause of his death, pneumonia and lung cancer. The appellant also asserts the Veteran was exposed to chrysotile products during Naval service, as well as amosite and crocidolite used in military ship construction, ultimately impacting his lungs and contributing to his death (9/08/2011 VA 21-534 Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child, pg. 12). Service connection for the cause of a Veteran's death requires that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a Veteran's death was service connected, his surviving spouse is generally entitled to DIC. See 38 U.S.C. § 101. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly 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). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death or 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 debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(3), (4). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran’s death certificate indicates that his death was due to pneumonia, with onset one week prior to his death, and non-small cell lung cancer, with onset one month prior to death. Emphysema was also noted as a significant condition contributing to the Veteran's death, with tobacco indicated as contributing to the Veteran's death (9/07/2011 Death Certificate). Review of the Veteran’s service treatment records reveals that he was treated for a common cold in July 1957 (5/20/2015 STR – Medical, pgs. 53 and 95). At the time of his retirement physical, the Veteran did not complain of shortness of breath or pain or pressure in his chest. His chest and lungs were clinically evaluated as normal and he was found physically qualified for retirement (5/20/2015 STR – Medical, pgs. 7-10). Results of in-service chest X-rays from February 1967 and June 1967 are of record, referencing a pleural paracardial fold (5/20/2015 STR – Medical, pgs. 58-60). A clinical record documenting the Veteran’s retirement chest X-ray noted blunting of the right costophrenic succus and the cardiophrenic succus. The cardiophrenic obliteration may be on the basis of an unusual plural pericardial fold or even from a previous inflammatory disease. The note indicates the pleural change in the right are consistent with a previous inflammatory disease such as emphysema. However, it was concluded that there is no history of a chest nature that would warrant a pleural change. The patient has had this history since at least 1960, it has been diagnosed as a fold of no significance (9/08/2011 Certificate of Release or Discharge from Active Duty, pg. 9). An August 2012 record review concluded that the Veteran’s in-service respiratory signs and symptoms noted in military service less likely than not caused or contributed to his death. The examiner opined the minimal asbestosis exposure in military service was less likely than not the cause or contributed to the Veteran's death, that is to the development of pneumonia emphysema or lung cancer (8/09/2012 C&P Exam, pg. 3). A February 2016 record review is also of record. The examiner opined the Veteran's respiratory findings and/or asbestos exposure during military service less likely than not contributed to the Veteran's death. The examiner explained the Veteran was said to have minimal asbestos exposure based on his job classification, noting he had emphysema and lung cancer at the time of his death, and it was noted that smoking also contributed to his death. The examiner also considered whether the respiratory findings and/or asbestos exposure during military service caused debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. The examiner explained the Veteran had a benign chest X-ray finding during service, with no effect on his lung function. The examiner considered the Veteran’s chest infection that caused a fever, diagnosed as the common cold. The examiner opined there is no evidence of a chronic lung condition related to his service. The examiner noted the Veteran's service treatment records do not reveal any other diagnosis/treatment which would have at least as likely as not contributed to the veteran's death. The veteran's records indicated some injuries and other acute illnesses but did not show any chronic condition except for psoriasis, that would not have affected his lung function or led to him developing pneumonia. With regard to the retirement chest X-ray report citing to the blunting of the right costophrenic angle, the examiner emphasized the finding that the condition had been present since 1960 and was unlikely to be of any significance (2/18/2016 C&P Exam). In weighing the evidence, the Board has considered the lay assertions and interpretation of the record by the Appellant. The Appellant contends the Veteran’s terminal emphysema should be conceptualized as an active duty military service incurred pulmonary malady that served as a primary contributor to his death. The Appellant has also provided an interpretation of the death certificate, stating the death certificate indisputably substantiates the detrimental impact of emphysema in the Veteran’s demise, emphasizing the Veteran’s death was due to chronic lung disease dating back to his active duty military service, substantiated by his service medical records. While the Appellant believes the Veteran’s emphysema was associated with his active service and the cause of his death, the record does not suggest the Appellant has medical education, training, or expertise, to provide medical diagnoses, or nexus opinions regarding this claim. The issue is medically complex, requiring medical knowledge, and therefore outside the competence of the Veteran. 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 medical opinions discussed herein. The Board has also of record is an internet article regarding occupational and environmental exposures of asbestos, addressing how Veteran’s may have been exposed to asbestos during military service (9/08/2011 Web / HTML Documents). In that regard, the Board has considered Veteran’s service, to include his shipboard service in the Navy (9/08/2011 Certificate of Release or Discharge From Active Duty, pg. 1). The Board finds the assertions of the article are outweighed by the medical opinions and evidence of record, to include the February 2016 examiners opinion that the Veteran's respiratory findings and/or asbestos exposure during military service less likely than not contributed to the Veteran's death and that smoking also contributed to the Veteran’s death. Additionally, the Veteran’s lungs and ches were clinically assessed as normal during his retirement physical. The Board finds the February 2016 opinion to be the most probative evidence of record, as it is based on a comprehensive review of relevant medical history, records, and the claims file. The Board finds the opinion adequately considers and is consistent with the other evidence of record is unrefuted by any other competent evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board finds the February 2016 reviewer's opinions highly probative, significant weight is attached to them, weighing against the Appellant’s claim. Finding the preponderance of the evidence is against the claim, the appeal is denied. 38 C.F.R. § 3.312. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.