Citation Nr: 21024445 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-42 661 DATE: April 22, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for the cause of the Veteran’s death is remanded. FINDINGS OF FACT 1. At the time of the Veteran’s death in March 2016, service connection was established for prostate cancer (rated 100 from August 9, 2010 and 60 percent from April 1, 2015), peripheral neuropathy of the upper extremities (each rated 20 percent from May 8, 2015), tinnitus (rated 10 percent from February 6, 2002), diabetes mellitus, type II (rated 10 percent from May 6, 2014), peripheral neuropathy of the lower extremities, sciatic nerve (each rated 10 percent from May 6, 2014), peripheral neuropathy of the lower extremities, femoral nerve (each rated 10 percent from May 8, 2015), internal derangement of the right knee (rated 0 percent from August 13, 2017 and 10 percent from January 22, 2015), left ear hearing loss (rated 0 percent from February 6, 2002), and erectile dysfunction (ED)(rated 0 percent from August 9, 2010). 2. The Veteran did not have service-connected disability rated as 100 percent disabling for 10 years prior to his death, or a total disability rating on the basis of individual unemployability for 10 years prior to his death. CONCLUSION OF LAW The criteria for DIC under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to August 1970, to include a tour of duty in the Republic of Vietnam. He died in March 2016, and the appellant is his surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 Department of Veterans Affairs (VA) rating decision. Entitlement to DIC under 38 U.S.C. § 1318 DIC under 38 U.S.C. § 1318 will be paid to a surviving spouse, even though a veteran died of nonservice-connected causes, if the veteran’s death was not the result of his own willful misconduct, and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was, in pertinent part, rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based upon unemployability. 38 C.F.R. § 3.22(c). The term “entitled to receive” means, in pertinent part, that at the time of death the veteran would have received total disability compensation for a service-connected disability rated totally disabling but for clear and unmistakable error committed by VA in a decision on a claim filed during the Veteran’s lifetime. 38 C.F.R. § 3.22(b). Here, according to his certificate of death, the Veteran died in March 2016. Records in the file show that when he died his service-connected disabilities included: prostate cancer (rated 100 from August 9, 2010 and 60 percent from April 1, 2015), peripheral neuropathy of both upper extremities (each rated 20 percent from May 8, 2015), tinnitus (rated 10 percent from February 6, 2002), diabetes mellitus, type II (rated 10 percent from May 6, 2014), peripheral neuropathy of both lower extremities, sciatic nerve (rated 10 percent, each, from May 6, 2014), peripheral neuropathy of both lower extremities, femoral nerve (rated 10 percent, each, from May 8, 2015), internal derangement of the right knee (rated 0 percent from August 13, 2017 and 10 percent from January 22, 2015), left ear hearing loss (rated 0 percent from February 6, 2002), and ED (rated 0 percent from August 9, 2010). Consequently, he was not in receipt of a 100 percent disability rating (either schedular or based on unemployability) for service-connected disability for the statutory 10-year period of time prior to his death. As the Veteran did not have service-connected disability rated 100 percent disabling for 10 years prior to his death, or a total disability rating based on individual unemployability for 10 years prior to his death, the Board finds that the requirements for establishing entitlement to DIC under 38 U.S.C. § 1318 are not met. The provisions of 38 C.F.R. § 3.22 do not preclude an appellant from arguing that prior rating decisions were clearly and unmistakably erroneous. However, neither the Veteran, during his lifetime, nor the appellant successfully or specifically pled clear and unmistakable error in any rating action that would have entitled the Veteran to a total disability rating for the statutory 10-year period of time prior to his death. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (holding that any claim of CUE must be pled with specificity). In light of the above discussion, the Board concludes that the claim for DIC under 38 U.S.C. § 1318 must be denied because the Veteran did not have service-connected disabilities that were continuously rated as totally disabling for a period of 10 or more years immediately preceding his death. See also Tarver v. Shinseki, 557 F.3d 131 (Fed. Cir. 2009) (discussing the history of the Court’s decisions regarding § 1318(b) and promulgation of the revised version of 38 C.F.R. § 3.22). Entitlement to these benefits must therefore be denied as a matter of law. Where, as here, the law is dispositive, the claim must be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to service connection for the cause of the Veteran’s death The death certificate of the Veteran (a Vietnam Veteran) lists his cause of death as cardiac arrest; there were no contributing conditions noted, and an autopsy was not performed. The appellant contends that the Veteran’s service-connected diabetes mellitus caused or contributed to his death. In November 2016, she submitted a medical article (obtained via internet) addressing whether diabetes was a risk factor for sudden cardiac death. In a VA medical opinion of June 2018, the examining physician concluded that it was less likely than not that the Veteran’s service-connected disabilities caused or contributed to his death, finding in part that terminal medical records did not support the claim that the Veteran’s diabetes played a role in his death. In a February 2019 medical opinion submitted by the appellant, a private physician challenged the accuracy of the cause of death listed on his death certificate and concluded that it is as likely as not that the Veteran’s service-connected diabetes contributed to the cardiac event that caused his death. He noted that terminal records showed that labs drawn before the Veteran’s death indicated a cardiac injury as would be experienced in a myocardial infarction, and that the Veteran’s chart also showed a diagnosis of NSTEMI (non-ST elevation myocardial infarction). He furnished several medical references pertaining to diabetes as a risk factor for coronary artery disease and myocardial infarction. However, he did not explain whether the Veteran’s diabetes, which was apparently under “excellent control” as noted by the VA examiner, could have led to a cardiac event, and he did not discuss any of the other conditions of the Veteran that could have led to his death. For example, as also noted by the VA examiner, the terminal records raised the possibility that death was the result of opioids, infection, or pulmonary embolism. Given the medical contradictions, a clarifying opinion by a specialist is needed. In addition, the Board observes that the VA examiner cited to terminal (private) hospital records in his opinion, but such records were not in the claims file at that time of the June 2018 opinion. Those records (from Beauregard Memorial Hospital) were later submitted in conjunction with the submission of the February 2019 private medical opinion, but many highlighted portions of those copies are illegible. Legible copies (without highlighted sections, which tend to obscure the typewritten statements underneath when copies are produced) should be obtained for the record. The matter is REMANDED for the following action: 1. Obtain legible copies of the Veteran’s terminal hospital records from Beauregard Memorial Hospital for association with the claims file. If necessary, ask the appellant to submit them or complete a medical authorization form for VA to obtain them from the hospital on her behalf. 2. When the development sought above is completed, arrange for a cardiologist to review the Veteran’s claims file, and provide a clarifying advisory opinion regarding the likely cause of the Veteran’s death. The consulting provider is asked to respond to the following: (a). Is it at least as likely as not (a 50 percent or greater probability) that type 2 diabetes mellitus and/or ischemic heart disease (including myocardial infarction) was a principal or contributory cause of the Veteran’s death? (b). Explain whether the Veteran’s diabetes, which was noted by the VA examiner in June 2018 to have been under “excellent control” at the time of his death, could have led to a cardiac event. (c). Comment upon the February 2019 private medical opinion, expressing agreement or disagreement with the assertion that the listed cause of death on the Veteran’s death certificate is “inappropriate” and that it is as likely as not that hiss service-connected diabetes contributed to the cardiac event that caused his death, and explaining the rationale for the agreement or disagreement. (d). Comment on the other conditions noted in the terminal hospital records of the Veteran that, according to the VA examiner in June 2018, raise the possibility that his death was the result of opioids, infection, or pulmonary embolism. (e). Did the Veteran’s service-connected disabilities (prostate cancer, type 2 diabetes mellitus type II, peripheral neuropathy of the upper and lower extremities, tinnitus, internal derangement of the right knee, left ear hearing loss, and ED) cause debilitating effects and general impairment of health to such an extent that it would have rendered him materially less capable of resisting the effects of other disease or injury that primarily caused his death? The consulting provider must include complete rationale with all opinions, citing to relevant evidence, supporting factual data and medical literature, and prior medical opinions, as appropriate. If an opinion sought cannot be given without resort to speculation, (to satisfy legal requirements) the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or examiner (i.e., additional facts are required, or the examiner does not have the requisite knowledge or training). If such is the case, the examiner should identify the further testing/specialist’s opinion/other information that is needed to provide the requested opinion. The consulting provider is advised of the following regulatory guidance. A principal cause of death means that a medical condition was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death means that a medical condition, not related to the principal cause of death, 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. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.