Citation Nr: 21023587 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-44 800 DATE: April 21, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record does not show that the conditions that were the immediate cause of, or contributed to, the Veteran’s death were caused by, or otherwise due to, his service, or were caused or aggravated by his service-connected conditions. 2. The Veteran’s total disability rating was effective from March 5, 2004, which was more than 5 years after his service, less than 10 years prior to his death, and the Veteran was not a prisoner of war. 3. At the time of the Veteran’s death, there were no benefits that were due and unpaid. 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. §§ 1110, 1111, 1112, 1310, 5102, 5103, 5103A 5107; 38 C.F.R. §§ 3.102, 3.159, 3.312. 2. The criteria for entitlement to Dependency and Indemnity Compensation pursuant to 38 U.S.C. § 1318 not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1950 to September 1952. He died in December 2013. The appellant is his surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 decision. In September 2016, the appellant requested a videoconference hearing before a Veterans Law Judge. A hearing was scheduled for October 2019. The record shows that the hearing request was cancelled by the appellant. Thus, the request for a hearing before the Board has been withdrawn. 38 C.F.R. § 20.704. 1. Entitlement to service connection for the cause of the Veteran's death The appellant seeks service connection for the cause of the Veteran’s death. The Veteran died in December 2013. The cause of the Veteran’s death was respiratory arrest due to cerebrovascular accident. Other significant conditions contributing to death but not resulting in the underlying cause were noted to be dementia and type 2 diabetes mellitus (diabetes). In order for service connection for the cause of a veteran’s death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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. Service-connected diseases or injuries involving active processes affecting vital organs receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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 this situation, however, it would not generally be reasonable to hold that a service-connected condition 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)(4). Service connection may be established for a disease or injury incurred in or caused or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (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 the present disability. Hickson v. West, 12 Vet. App. 247 (1999). At the time of his death, the Veteran was service-connected for hearing loss, tinnitus, and residuals of a gunshot wound of the right arm. The Veteran was also awarded a total disability rating due to individual unemployability (TDIU). The medical evidence of record does not disclose a connection between the Veteran’s service-connected conditions and his death. Nor does the medical or other evidence of record disclose a connection between the Veteran’s service and the conditions listed as the cause of the Veteran’s death or causes that were contributing to his death. The appellant has not provided a theory as to how the conditions determined to be the cause of the Veteran’s death or that contributed to his death are related to the Veteran’s service-connected conditions. Under these circumstances, the Board finds that the evidence does not meet the minimal requirements to require a medical examination or opinion regarding whether there is a connection between the Veteran’s service and the conditions that eventually caused or contributed to his death. See 38 U.S.C. § 5103A (a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). As the evidence does not meet the minimal requirement to require a medical opinion, the Board also finds that service connection for these conditions is not warranted. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Diabetes mellitus is one of these chronic conditions. However, the earliest record of that the Veteran was diagnosed with diabetes is from 2004, decades after the Veteran’s service, and there is no indication in the record that this condition or its symptoms were present continuously in-service. Consequently, to the extent that diabetes’ inclusion on the Veteran’s death certificate is an indication that this condition contributed to death, service connection is not warranted for this condition under the presumption governing chronic diseases. The appellant appears to contend, articulated in her substantive appeal form, that the Veteran’s deafness contributed to his death because his deafness “caused him stress and further affected his health.” This appears to be a highly speculative link between the Veteran’s auditory disability and several other disabilities that are not obviously related provided by a lay person. Under the circumstances, the Board finds that the Appellant’s lay assertion that the Veteran’s stress caused by his deafness affected his health in some unspecified way that contributed to his death does not meet the criteria to warrant an opinion as to whether the Veteran’s deafness contributed to his death. See DeLaRosa. As the evidence of record does not meet the criteria to warrant obtain a VA opinion, the Board finds that the record does not meet the higher standard to find that deafness was the immediate or contributory cause of his death. As the evidence weighs against a relationship, either causal or contributory, between the cause of the Veteran’s death and his period of active service, the Board concludes that service connection for the cause of his death is not warranted. 38 C.F.R. § 3.312. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 C.F.R. § 3.102. 2. Entitlement to DIC under 38 U.S.C. § 1318 The appellant has specifically sought service connection for cause of the Veteran’s death due to the Veteran being totally disabled for 10 years preceding the Veteran’s death. VA will pay compensation for the cause of a veteran’s death, even if the cause of the veteran’s death was not service-connected, if the veteran’s death was not the result of his or her own willful misconduct, and the veteran was receiving compensation for a service-connected disability (including a TDIU) for 10 years immediately preceding death, 5 years immediately preceding death beginning immediately after the veteran’s release from active duty, or for 1 year immediately preceding death if the veteran was a prisoner of war. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. Here, the Veteran was in receipt of a TDIU effective March 5, 2004. This effective date was more than 5 years after his release from service in the 1952. It was also less than 10 years prior to the Veteran’s death on December 26, 2013. There is also no evidence that the Veteran was a prisoner of war. Consequently, the Veteran did not meet these criteria. Id. The Board observes that this entitlement may also be met if the Veteran had been entitled to total disability but for a clear and unmistakable error committed by VA in a decision on the claim; or additional service department records that existed at the time of a prior VA decision, were not previously considered by VA, and provide a basis for reopening a previously denied claim; or the Veteran was rated totally disabled and not receiving compensation because it was being withheld for specified rating. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(b). These circumstances do not present themselves in this case. Additional service records that were not previously considered have not been received, nor was the Veteran’s compensation being withheld. Finally, the effective date of the Veteran’s entitlement to TDIU corresponds to the date that his most recent claim for this condition was received, and though the Veteran had previously asserted entitlement to TDIU and been denied two years prior to his March 2004 claim, neither the record nor the Veteran has demonstrated any clear and unmistakable error in the assignment of the effective date. Consequently, the Board finds that entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C. § 1318 is not warranted under the circumstances of this case. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. Entitlement to accrued benefits The appellant seeks entitlement to accrued benefits. Accrued benefits are benefits that were due to a Veteran but that were unpaid that the time of a veteran’s death and are payable to certain living persons upon the death of a veteran, including, as in this case, a surviving spouse. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. At the time of the Veteran’s death, no claim for additional benefits was pending and the facts and record do not otherwise disclose any circumstances that would have resulted in benefits being due to the Veteran and unpaid by VA at that time. Id. The appellant has not identified a theory as to how the entitlement to accrued benefits would be established. Under these circumstances, entitlement to accrued benefits is denied. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.