Citation Nr: 21023105 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-00 444 DATE: April 20, 2021 ORDER Additional accrued benefits is denied.   FINDING OF FACT The Veteran’s last sickness leading to his death began in September 2013 with the termination of dialysis. CONCLUSION OF LAW The criteria for additional amounts of accrued benefits have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1953 to June 1955. He died in September 2013. The appellant is his adult son. The case is on appeal from a March 2014 decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Additional amounts of accrued benefits The appellant in this case has been paid accrued benefits in the amount of $12,977.96. The total amount of accrued benefit due and owing to the Veteran upon his death was $41,806.00. The appellant maintains that he bore the amount of $15,629.21, for the Veteran’s illness. See 6/10/2014 Supporting Statements with Ledger. He contends that he is due the total amount he paid. As a threshold matter, the appellant actually contends that he is due the greater amount of $44,002.04, which is the total the Veteran’s children contributed to the care of the Veteran during his last illness and death. This includes the total amount contributed by the appellant and his two sisters. The appellant contends that the amounts paid by his siblings should also qualify because his two siblings waived their claim and authorized VA to pay the appellant. The claims file includes a statement from the Veteran’s siblings disclaiming their right to recovery in this matter. Their statements do not confer on the appellant the right to collect the amounts they paid. To qualify for accrued benefits, the expenses must have been paid by the person who bore the expense of last sickness or burial. See 38 C.F.R. § 3.100(a)(5). Because the expenses paid by the appellant’s siblings were not born by the appellant, those expenses cannot be considered here. To this end, the appellant further argues that if he was not eligible not collect on behalf of his two siblings, this fact should have been brought their attention before the 1-year time limit. Again here, there is no basis for further consideration of those amounts. Anyone dealing with the Government is charged with knowledge of Federal statute and agency regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991); see also Jernigan v. Shinseki, 25 Vet. App. 220, 230-231 (2012) (indicating that this presumption may not apply if a claimant detrimentally relied on a misleading notice). VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). Here, the appellant has not asserted that he or his siblings relied on a misleading notice that he might be qualified to collect on their behalf. Rather, he is contending that VA should have proactively notified the siblings that they needed to individually apply for accrued benefits before the expiration of the time limit. Because they are charged with the knowledge that needed to apply within 1-year of the Veteran’s death, and because VA was not under a legal duty to notify them of this limitation, no further action can be taken on any monies they paid toward the Veteran’s last sickness and death. At this stage, the Board simply has no basis in law by which to recognize their standing in this matter. Hence, the Board will proceed by considering the appellant’s claim that he is due a greater amount of accrued benefits than the amount already paid him. A. Applicable Law Basic entitlement to accrued benefits exists and periodic monetary benefits authorized under VA laws, to which a payee was entitled at his or her death under existing ratings or decisions or those based on evidence in the file at date of death, and due and unpaid will, upon the death of such person, be paid upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent; (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children; (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation; (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents; and (5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). Application for accrued benefits must be filed within 1 year after the date of death. A claim for death pension, compensation, or dependency and indemnity compensation, by an apportionee, surviving spouse, child or parent is deemed to include claim for any accrued benefits. 38 C.F.R. § 3.1000 (c). B. Discussion There are several facts that have been established or are not otherwise at issue. First, the Veteran was in receipt of nonservice-connected aid and attendance benefits beginning from January 2011. Second, that accrued VA benefits in the amount of $41,806.00 were due and owing at the time of the Veteran’s death in September 2013. Third, the appellant, who is the Veteran’s adult son, timely filed an application for accrued benefits in February 2014. Fourth, the appellant has already been paid accrued benefits in the amount of $12,977.96. Fifth, the appellant submitted evidence that he personally contributed additional amounts towards the Veteran’s care. (He submitted a ledger showing he paid the amount of $15,629.21, but the exact dollar amount is not material at this stage of the proceeding, as identified below.) The circumstances surrounding the Veteran’s demise are also not reasonably in dispute. Medical records show that he was treated for pneumonia as an inpatient at a private (non-VA) hospital in early September 2013. According to the discharge summary, the Veteran completed a course of antibiotics for the pneumonia, but was to continue other medications for comfort and to improve breathing. It was also noted that he had dementia with an overall decline in the prior six months. Finally, it was noted that the Veteran had end-stage renal disease (ESRD), and his family ultimately decided to make the Veteran comfort-measures-only (CMO) with the decision to discontinue dialysis, all related medication, and lab draws. The discharge summary went on to explain that the Veteran’s family expressed concerns about his overall quality of life, particularly with respect to dialysis. He was often exhausted and lethargic for the whole day following dialysis, and his mental status had been worsening, likely representing some progression of his underlying dementia. It was noted that he also had some difficulty swallowing with high risk of aspiration, possibly contributing to current pneumonia. Given all these concerns, the family felt that he would not want further aggressive treatment and hospitalizations, so made the decision to return him to his care facility with end of life care. They felt discontinuation of dialysis would be most consistent with this shift in his goals of care. The Veteran was then admitted to hospice care. He discontinued hemodialysis in early September 2013. His children expressed confidence in the difficult, joint decision to stop dialysis as they felt sure they were following his wishes. See 9/9/2013, 9/13/2013 Medical records. He died approximately nine days later. The Certificate of Death lists the immediate cause of death as chronic renal failure with the approximate interval between the onset of the immediate cause and death as “years.” On the basis of these undisputed facts, the critical questions of fact remaining at issue in this appeal are (1) what was the Veteran’s “last sickness” and (2) when did that last sickness begin. These questions are intertwined, so will be discussed together. The term “last sickness” is not defined under the VA law or regulations concerning accrued benefits, or in case law. In support of its determination, the RO cited a similar term defined in the VA Adjudication Procedures Manual, M21-1 (Manual). Under Part V, Subpart iii, Chapter 1.G.6.b. of the Manual, the term “last illness” is defined as the period from the onset of the acute attack causing death to the date of death. If death resulted from a lingering or prolonged illness instead of an acute attack, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person. M21-1, Part V, Subpart iii, Chapter 1.G.6.b. The M21-1 Manual provisions are not binding on anyone other than the VBA employees. The Board is not bound by any directives in the M21-1 Manual and need not defer to any administrator’s adherence to those guidelines. Gray v. Sec’y of Veterans Affairs, 875 F.3d 1102, 1106 (Fed. Cir. 2017); Overton v. Wilkie, 30 Vet. App. 257, 263 (2018). However, the Board cannot ignore a relevant M21-1 provision providing guidance on an issue, although the Board also cannot simply rely on an M21-1 provision without providing a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. In other words, the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases. But, because it is not bound by the M21-1 provisions, the Board must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision. Overton, 30 Vet. App. at 264. Although not cited by the RO, the Board also finds the regulatory provisions of 38 C.F.R. § 3.312(c) to be analogous. It provides that a contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it 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). With these law and facts in mind, the Board first takes notice of the appellant’s contentions, as follows. First, that, after each dialysis treatment, the Veteran could not do anything on his own, including eating or toileting. He required direct assistance at least 6 days per week. Also, according to the appellant, ESRD is known to contribute to and exacerbate dementia, so it is as likely as not that his dementia was in part a result of the ESRD. This means, the appellant argues, that the ESRD was likely a contributing cause for daily supervision needed for dementia and the need for aid and attendance when he first applied for VA pension. Further, the Veteran needed ad hoc assistance due to his ESRD due to other symptoms, such as loss of appetite, fatigue, and weakness, which required ongoing supervision. The need for dialysis long preceded the onset of dementia. The two diagnoses were not medically separate or separable. His family discontinued his dialysis because his death from Alzheimer’s disease was imminent, and waiting for the next bout of aspiration pneumonia would have been cruel. In the months prior to his death, the Veteran had become incontinent of feces; had hallucinations and delusions; no longer recognized family members, and was in constant pain. See 3/8/2021 Appellant Statement. The appellant essentially maintains that the Veteran was hospitalized with aspiration pneumonia in 2013, which was a complication of his advanced Alzheimer’s dementia. This illness led, after discussion with his treating physicians and family, to a decision to withdraw dialysis. Prior to that time, the Veteran had needed regular aid and attendance of another person since at least September 2010, as shown by the submitted evidence. See 7/2/2020 Appellant Statement; 11/19/2015 VA Form 9. There is some evidence in support of the appellant’s contentions and some evidence weighing against the contentions. In favor of the contentions is the Certificate of Death. It identified the immediate cause of death as chronic renal failure with “years” between the onset of this cause and his death. This is somewhat favorable as it might indicate that the Veteran’s “last sickness” covered the “years” identified by the Certificate of Death. The Board finds that this interpretation is not especially probative, however, as the Certificate of Death’s conclusion was clearly not meant to address the specific legal and factual question at issue here. Rather, it is a generalized, unexplained conclusory opinion. Hence, even assuming it is generally relevant here, it is not particularly probative. See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). Also somewhat favorable, the appellant himself is a practicing neurologist. See 3/8/2021 Appellant Statement. Importantly, however, there is no indication that the appellant intended any of his supporting statements to be a medical opinion as opposed to argument. He did not identify himself as acting in the role of a medical professional. None of his supporting statements contain indicia that they were being provided as the professional opinion of a medical expert, such as using identifying wording, e.g. “in my opinion,” or providing identifiable medical judgment to signal an intention to provide an expert medical opinion. He also did not provide reasoned medical judgment that was independent of or clearly discernible from the legal arguments. None of the submissions elucidated to the Board that the statements were provided in his capacity of a medical expert. Harvey v. Shulkin, 30 Vet. App. 10, 15-17 (2018). Hence, the Board finds that he was acting only in the non-medical role of offering argument as to why his appeal should be granted. His opinion has been considered accordingly. To directly address the medical questions at issue here, in March 2020, a VA examiner reviewed the Veteran’s case and opined that the Veteran’s “last illness” began from the date in when his dialysis was ended. The examiner determined that this last illness was not related to any acute medical conditions that needed hospitalization, and was purely based on the family’s decision to terminate care. The examiner found no evidence of acute illness requiring emergency room visits or hospitalization in 2013, and the Veteran’s conditions were identified as chronic and stable, without evidence of worsening status/severity requiring the regular and daily attendance of another person. The examiner further reasoned that the dialysis was terminated per decision of the family. Therefore, the examiner concluded, as the Veteran did not receive further treatment with dialysis, the date that the family voluntarily agreed to terminate dialysis in September 2013 was at least likely the onset of patient’s “last illness.” The decision to terminate was at least as likely based on the chronic failure to thrive secondary to ESRD on hemodialysis, and less likely related to acute exacerbation of any current medical conditions. The Board finds that this opinion, while probative, is of reduced weight as it was not based on an accurate factual predicate. Whereas the examiner found the Veteran’s conditions to be chronic and stable without evidence of worsening, the September 2013 hospital discharge summary specifically stated that his dementia had worsened over the prior six months. The examiner also found no need for aid and attendance even though the Veteran was being paid aid and attendance by VA for this very reason. Hence, this opinion is essentially nonprobative. A second opinion from a different VA examiner was obtained in September 2020. This VA examiner explained that the Veteran had end-stage renal failure and received dialysis three times a week. The examiner found that the Veteran was dialysis-dependent, but there was no change in his function due to medical events, but instead due to the elective cessation of dialysis, to allow nature to take its course. The examiner observed that the underlying impetus for that decision was the Veteran’s Alzheimer’s disease. The examiner agreed with the prior opinion that the “final illness” or stage began in September 2013 with the last dialysis. The examiner took notice of the fact that the Veteran received VA aid and attendance, requiring daily assistance for cognitive reasons and transportation/safety, as well as activities of daily living, effective from 2011. Therefore, the examiner found aid and attendance applicable from that date. The VA examiner felt, however, that chronic renal failure itself did not require daily aid and attendance and, theoretically, the Veteran only required aid and attendance for dialysis access three days a week, with respect to the chronic renal failure. The examiner also found that dementia in particular, and other conditions, contributed to the Veteran’s need for aid and attendance, such that, in the absence of dementia, the Veteran would have only required a ride to and from dialysis and associated provider appointments, not daily aid and attendance. In a December 2020 addendum, this same VA examiner explained further that, as noted in the prior opinion, the Veteran was electively terminated from dialysis. The Veteran’s status due to Alzheimer’s contributed to that decision by caregivers and family members, but the Alzheimer’s itself did not contribute to the cause of death, which was clearly end-stage renal failure, status post elective cessation of dialysis. The VA examiner advised that, had the Veteran not had end-stage renal disease, the Alzheimer’s would not have led to his demise at that time. The examiner identified the leading cause of death with Alzheimer’s as aspiration pneumonia or other infections leading to sepsis. The examiner found no evidence of a direct contribution by Alzheimer’s to the Veteran’s death, so Alzheimer’s did not contribute directly to the Veteran’s cause of death, but only to the elective decision made by caregivers and family members to discontinue dialysis. The VA examiner concluded that it was less likely than not that the Alzheimer’s contributed directly to the Veteran’s death. Hence, the VA examiner found that complications of Alzheimer’s did not lead to the Veteran’s demise. (The examiner cited a relevant website with information on Alzheimer’s disease.) The Board finds that the meaning of “last sickness” as used in 38 C.F.R. § 3.1000 is primarily a medical determination as it requires consideration of disease progression and other complicated medical factors outside the realm of common knowledge and ordinary experience. On this basis, the Board finds the December 2020 VA examiner’s opinions to be the most persuasive evidence. At present, the Board can find no reason to call into question or otherwise discount the probative weight of the VA examiner’s opinion. The opinion is clear and unequivocal, and it was based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiner’s explanations are understandable, and all inferences appear to follow from the facts and information given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant has called into question the competence of this VA examiner to address the Veteran’s case. The appellant argued that an opinion from a neurologist, nephrologist, or both should be done. See 3/8/2021 Appellant Statement. The VA examiner listed his specialty as General Practice, Obstetrics and Gynecology. The competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. Hilkert v. West, 12 Vet. App. 145 (1999). The presumption is that the VA has properly chosen an examiner who is qualified to provide competent medical evidence in a particular case absent a challenge by the veteran. There is no distinction between generalist and specialist examiners. Francway v. Wilkie, 940 F.3d 1304, 1309 (Fed. Cir. 2019). The presumption of competence requires an appellant to object to an examiner’s qualifications before the Board, but the Board cannot ignore facially obvious issues of competence. Fears v. Wilkie, 31 Vet. App. 308, 318 (2019). The presumption of competency is rebutted when a veteran raises the competency issue. Francway, 940 F.3d at 1307. More specifically, in order to rebut the presumption a claimant must first object to the selection of a particular medical professional. This may be done by suggesting, for instance, that no nurse practitioner was competent to provide the opinion or that the specific examiner herself was in some way incompetent. Next, if an objection is raised, to overcome the presumption, it must be shown that the medical professional is not qualified by training, education, or experience in the particular field. The claimant may need to provide information to overcome the presumption, and the determination may require inquiry beyond the possession of a particular degree, or the lack of one. Parks v. Shinseki, 716 F.3d 581, 585-86 (Fed. Cir. 2013). Here, the Board finds the VA examiner was competent and that no further opinion is needed. The Board is again mindful that the appellant himself is a practicing neurologist. See 3/8/2021 Appellant Statement. Nonetheless, the appellant did not cite his expertise or any other evidence as to why a specialist in neurology and/or nephrology was needed. The appellant also did not offer any information or evidence to show that the specific December 2020 VA examiner was not competent to offer an opinion in this matter. The VA examiner’s specialty in General Practice, Obstetrics and Gynecology, is not on its face evidence calling into question his competence in this case, and the examiner gave no indication that he was not fully competent to opine in this matter. See Wise v. Shinseki, 26 Vet. App. 517, 527 (2014). Absent some indication that a particular practitioner was not competent or that the particular examiner was not qualified, the Board finds that the December 2020 VA examiner was competent to offer a probative opinion in this matter. See Francway, 940 F.3d at 1308. The appellant’s argument, without further support, is not sufficient to warrant remand for a new opinion. Overall, to summarize, the evidence, especially the December 2020 VA examiner’s opinion, establishes that the Veteran’s other illnesses contributed substantially and materially in the elective decision to end his dialysis. The other illnesses, however, did not then contribute, aid, or lend assistance to the physiologic production of death. They were not active factors materially influencing the immediate production of his death. The other illnesses may have factored into the decision to end dialysis, but, as the VA examiner found, those illness would not have contributed to his death if the decision had not been made to discontinue dialysis. The other illnesses were only a remote factor in his death. So, they may have been illnesses contributing to the decision bring about the last sickness, but were not principal or contributory causes of the last sickness causing the Veteran’s death. (Continued on the next page)   This finding is consistent with the M21-1 provision cited by the RO. The VA examiner’s opinion establishes that the onset of the acute attack causing death up to the date of death was the cessation of dialysis. His death did result from a lingering or prolonged illness instead of an acute attack. It is undisputed that he had lingering and prolonged illnesses requiring aid and attendance for many years, and the appellant may be correct that his other illnesses may have caused the Veteran’s death at some point in time. Regardless, the evidence shows that those illnesses did not produce his death. Rather, the evidence shows that his condition did not become acute until dialysis was discontinued. Hence, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, additional accrued benefits are not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.