Citation Nr: 21023741 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-36 200 DATE: April 21, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) for cause of the Veteran's death is denied. FINDING OF FACT A service-connected disability is not shown to have caused or contributed substantially or materially in producing or accelerating the Veteran’s death. CONCLUSION OF LAW The criteria to establish service connection for cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1310 (2012); 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Special Philippine Scout from March 1946 to March 1949. He died in February 2005. The appellant is his surviving spouse. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the RO. The appellant testified before the undersigned in a video-conference hearing in February 2016. A transcript of the hearing is of record. In September 2019, the Board remanded the claim for additional development of the record. Specifically, the Board instructed the RO to obtain an advisory medical opinion regarding the cause of the Veteran’s death, namely whether it was at least as likely as not that the principal or contributory cause of the Veteran’s death was related to his period of service from March 1946 to March 1949 in the Special Philippine Scouts. The medical opinion was provided in June 2020. Accordingly, the requested development has been completed and the case is returned to the Board for appellate disposition. 1. Entitlement to DIC for cause of the Veteran's death. Dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, that it combined to cause death, or 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. Except with respect to a claim for benefits under the provisions of 38 U.S.C. § 1318 and certain other cases, issues involved in a survivor’s claim for death benefits will be decided without regard to any prior disposition of those issues during the veteran’s lifetime. 38 C.F.R. § 20.1106. The Veteran’s death certificate reflects that the immediate cause of his death was cardiorespiratory arrest secondary to community acquired pneumonia; antecedent causes were malnutrition and pulmonary tuberculosis could not be ruled out. At the time of the Veteran’s death, service connection had not been established for any disability. The appellant contends that a doctor at the hospital informed her that the Veteran died because of “something that happened in service.” Further, she asserts that the Veteran served as a barber during service and his community acquired pneumonia was caused as a result of the inhalation of the hair he was cutting (i.e., the Veteran’s death was the result of inhaled hair in his lungs incurred during service). A June 2020 VA Medical Opinion documents the physician’s opinion that the principal or a contributory cause of the Veteran’s death was less likely than not related to his period of service from March 1946 to March 1949 in the Special Philippine Scout. The physician explained that there were no records of evidence to support the existence of any pulmonary condition consistent with his cause of death during service or even within one year after separation. There was no evidence of complaint of or treatment for a respiratory condition. Further, the physician explained there was no available record to support the assertion that the Veteran suffered respiratory conditions during his service and noted there was no report that provided a nexus between the Veteran’s work as a barber and the community acquired pneumonia that caused his death. The physician reported that records showed the Veteran worked as a barber from 1939 to 1941 and acknowledged that literature showed aspiration pneumonia among barbers with the use of mineral oil and sprays. However, the physician explained there was no literature that showed human hair aspiration among barbers that resulted in community acquired pneumonia. The physician explained that community acquired pneumonia was caused by infection from bacteria, viruses and fungi and the infection causes inflammation in the air sacs in the lungs. The physician reported that community acquired pneumonia is an acute condition and commonly resolves with medication and does not become chronic. Thus, the physician determined that it was less likely that community acquired pneumonia onset from cutting hair as a barber. The physician concluded that the community acquired pneumonia was due to another etiology. The physician concluded that the cardiorespiratory arrest secondary to community acquired pneumonia and antecedent causes of malnutrition or pulmonary tuberculosis was less likely than not related to his work as a barber. An additional June 2020 Medical Opinion documents the physician’s (Director of Compensation and Pension (C&P)) opinion that it was less likely than not that the principal or a contributory cause of the Veteran’s death was related to his period of service from March 1946 to March 1949 in the Special Philippine Scout or a result of inhaling hair while he worked as a barber during service. Noting review of the evidence of record, the physician (Director of C&P) explained that although the appellant claimed that a doctor at the hospital informed her that the Veteran died as a result of “something that happened in service,” there was no evidence of a statement and/or rationale from a doctor concerning the above claim; service treatment records were silent for any objective evidence that the Veteran had actually inhaled hair while working as a barber; the service treatment records and medical records within a year of discharge were silent for any evidence of the diagnosed conditions noted on the death certificate as the cause of death; and, the physician was unaware of any evidence based medical literature and there was no supporting evidence in the medical records reviews that would support the appellant’s assertion that the Veteran’s inhaling hair while working as a barber would predispose him to the conditions noted on the death certificate as the cause of death more than 55 years after his discharge from service. Thus, on this record, the preponderance of the most probative evidence is against a finding that a service-connected disability caused or contributed to cause the Veteran’s death. For these reasons, service connection for cause of the Veteran’s death is not warranted. The Board reiterates that there is no competent evidence or opinion that suggests that a service-connected disability caused or contributed to cause the Veteran’s death. The appellant is not competent to link the cause of the Veteran’s death to a service-connected disability. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The appellant is a lay person and is not competent to establish that the Veteran’s possible inhalation of hair while performing duties as a barber during service caused or contributed to cause his cardiorespiratory arrest secondary to community acquired pneumonia which caused his death. The question regarding the cause of death is a complex medical issue that cannot be addressed by a layperson. For these reasons, her allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for cause of the Veteran’s death must be denied. 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.