Citation Nr: 21026289 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-38 695 DATE: April 30, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. REMANDED Entitlement to Dependency Indemnity Compensation (DIC) based on 38 U.S.C. § 1318, is remanded. FINDINGS OF FACT 1. The evidence of record relates the Veteran’s sepsis to his replacement of his pacemaker for treatment of his sick sinus syndrome (SSS) with atrial fibrillation, which, in turn, resulted in the Veteran’s death. 2. At the time of the Veteran's death, he had established entitlement to service connection for bilateral tinnitus and bilateral sensorineural hearing loss. 3. The preponderance of the evidence is against a finding that the SSS with atrial fibrillation manifested during the Veteran's period of active service or within one year of separation, or was otherwise related to his service. 4. The Veteran's service-connected disabilities did not cause or contribute to his death. CONCLUSION OF LAW The criteria for service connection for the Veteran’s cause of death are not met. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran passed away in October 2012 and the appellant is his surviving spouse. However, prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran’s outstanding service. The Veteran, who served in the United States Air Force on active duty from August 1963 to August 1967, was clearly a credit to the United States Air Force and to his family, and his service to his country is greatly appreciated. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the appellant filed a Notice of Disagreement (NOD) claiming Dependency Indemnity Compensation (DIC). See May 2013 NOD. As of February 2021, the date the appellant’s case was placed back on the Board’s docket, the RO has not yet adjudicated the appellant’s DIC claim. Given such, the Board takes jurisdiction of the claim for DIC. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (VA may waive any issue of timeliness in the filing of a Substantive Appeal, either explicitly or implicitly, where VA has consistently treated the matter as if it was still on appeal by certifying the matter to the Board for adjudication and the Board member taking testimony on that matter during a Travel Board hearing) In January 2019, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In November 2020, the Board remanded this matter for additional development and consideration. The issues have now been returned to the Board for further appellate consideration. As is further discussed below, the Board finds that there has been substantial compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for cause of the Veteran's death In this case, the appellant seeks to establish service connection for the cause of the Veteran’s death. She contends that the Veteran’s death was the result of his irregular heartbeat that began in service, and ultimately resulted in the Veteran’s death and alternatively that his respiratory failure listed as the cause of death on the Veteran’s death certificate was related to his service. See January 2019 Board Videoconference Hearing. Applicable Laws and Regulations To establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310, 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 3 8 C.F.R. § 3.312 (c)(1). Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of the Veteran’s death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312. As with all claims for disability compensation, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran’s August 1963 enlistment examination shows him to be clinically normal without notations of abnormalities. See August 1963 Service Treatment Records (STR) at 16-18. However, in September 1964 the Veteran was involved in a motor vehicle accident (MVA), “striking his left chest against the steering wheel.” Id. at 33. At discharge from the hospital after one months stay, he was diagnosed with paroxysmal auricular tachycardia. Id. at 34. The Veteran’s separation examination in July 1967 notes, palpitation or pounding heart, the examiner further noted “Rheumatic fever in childhood. Adequately recovered. Paroxysmal auricular tachycardia diagnosed September 64. Was re-evaluated in January 66 at which time he was given permanent P-3 profile. Re-checked in July 66. Continued profile change and has been treated with Quinidine and Digoxin.” Id. at 7. In December 2019, the Veteran’s claims file was reviewed in connection with an addendum opinion to determine his cause of death. See December 2019 Addendum Disability Benefits Questionnaire (DBQ). The examiner opined “[i]t is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's supraventricular tachycardia (SVT) had its onset during his active duty service.” Id. at 2. The examiner further opined, “[i]t is NOT at least as likely as not that the Veteran[’]s SVT was caused by military service or that his SVT caused or substantially contributed to the Veteran’s cause of death of respiratory failure.” Id. (emphasis in original). The examiner opined as to the adequacy of the Veteran’s death certificate, noting: The death certificate notes respiratory failure as the cause of death. For everyone who dies, the heart stops (cardiac failure) and the lungs stop breathing (respiratory failure). These are terminal events in everyone and do not represent a specific cause of death. Details of circumstances surrounding the Veteran's death are lacking, however, based on available clinical evidence, the Veteran's cardiac diagnoses around the time of his death were atrial fibrillation and sick sinus syndrome. These are heart conduction abnormalities that are distinct from the SVT he had in service. December 2019 Addendum DBQ at 2. The examiner went on to explain that “[t]here is no evidence that the SVT the Veteran had in service resulted in respiratory failure. Though the Veteran was treated for other heart conditions in his later years (atrial fibrillation and SSS), there is no objective evidence of treatment of SVT in the record since service and the Veteran's death.” Id. at 3. Of particular interest is the examiner’s notes regarding the Veteran’s pacemaker. The examiner opined “in the years preceding his death, [the] Veteran had heart diagnoses of sick sinus syndrome with atrial fibrillation which required pacemaker. This is validated primarily via Cardiology specialist (Electrophysiologist) notes.” Id. at 2. Additionally, it was stated: This Veteran in particular had risk factors for atrial fibrillation of hypertension and diabetes. Sick sinus syndrome (SSS) is an abnormality of the conduction system that usually occurs with aging and may require a pacemaker to treat. . . . . There is no evidence that the Veteran had SVT that impacted his health in the years preceding his death. The pacemaker the Veteran had would have been checked periodically. Pacemakers record electrical tracings, and these are typically downloaded and reviewed at the pacemaker check. There is no mention of SVT by the cardiologist/ electrophysiologist who was following the Veteran for his pacemaker. In addition, SVT itself is not treated with a pacemaker. Id. at 3. In December 2020, the Veteran’s claims file was reviewed in connection with an addendum opinion to determine his cause of death, by way of the November 2020 Board remand. See December 2020 Medical Opinion DBQ. The examiner concurred with the December 2019 examiner in the relevant portions of the examination; however, the examiner further explained: Notably absent from the veteran's medical records is the U.S Standard Certificate of Death, which, as described above, includes the cause-of-death sequence or cascade. As described above, there is an absence of evidence, present in the [medical treatment records] MTRs, indicating the veteran was experiencing a progressive worsening of his respiratory condition, immediately prior to his death. Therefore, respiratory failure could not have been the underlying cause of the veteran's death. …. The veteran's MTRs reveal that the chain of events that eventually led to his untimely death began in [September 11, 2012], when he was admitted to the Deborah Heart and Lung Center, for the presence of an abscess and erosion of the underlying subcutaneous, skin pocket in his left, upper chest containing his pacemaker. Wound cultures were positive for the presence of bacteria. The veteran underwent an explantation of the old pacemaker and the implantation of a new pacemaker in the right infraclavicular area during this hospitalization, with his discharge from the facility occurring on [September 20, 2012]. On [September 27, 2012], the veteran was admitted at a local hospital with evidence of hypotension and tachycardia. Hypotension and tachycardia is consistent with signs of sepsis and/or impending septic shock. An infectious disease consultant, on [October 3, 2012], acknowledged the presence of “MRSA (“methicillin-resistant staphylococcus aureus”) of the old pacemaker pocket site that eroded through.” The veteran's most likely underlying cause of death was sepsis or septic shock from bacteremia. It is NOT AT LEAST AS LIKELY AS NOT that the “respiratory failure,” noted as the cause of death on the Veteran’s death certificate was the Veteran’s actual cause of death. Id. at 3-4 (emphasis in the original). The examiner opined, “[i]t is NOT AT LEAST AS LIKELY AS NOT that the cardiac disability caused the veteran's respiratory failure.” Id. at 4 (emphasis in the original). The examiner further opined “It is NOT AT LEAST AS LIKELY AS NOT that the Veteran’s cause of death of respiratory failure underwent any incremental increase in disability, regardless of its permanence, due to the cardiac disability.” Id. at 5 (emphasis in the original). Lastly the examiner opined: There is no evidence that these diagnoses, which includes but is not limited to, CVD, PVD, DVT, old cerebrovascular accident, left, above the knee amputation, diabetes mellitus and hypertension, were due to an event, injury or occurrence in military service. A nexus cannot be established between these chronic diagnoses and any onset or incidence during active duty service. It is NOT AT LEAST AS NOT that any diagnosis at the time of the veteran’s death had its onset during, or is otherwise related to, his active duty service. Id. at 5 (emphasis in the original). Analysis The Veteran died in October 2012. His death certificate noted that the cause of death was “respiratory failure.” See October 2012 Death Certificate. There were no other contributing causes of death listed. At the time of the Veteran’s death, he was only service connected for bilateral tinnitus and bilateral sensorineural hearing loss. However, while not service connected for a respiratory disorder, the appellant may still establish entitlement to service connection for the cause of death by showing that the Veteran’s sepsis is due to treatment of a disability that was related to service. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of the Veteran will be considered as due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). 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. Id. The Veteran’s death certificate reflects that he died in October 2012, the cause of death was listed as respiratory failure. See October 2012 Death Certificate. As explained by the December 2020 examiner, a “U.S Standard Certificate of Death, which, as described above, includes the cause-of-death sequence or cascade” is notably missing from the veterans claims file. See December 2020 DBQ. However, the examiner was able to provide a sequence of events that resulted in the Veteran’s death. He stated: The veteran’s MTRs reveal that the chain of events that eventually led to his untimely death began in [September 11, 2012], when he was admitted to the Deborah Heart and Lung Center, for the presence of an abscess and erosion of the underlying subcutaneous, skin pocket in his left, upper chest containing his pacemaker. Wound cultures were positive for the presence of bacteria. The veteran underwent an explantation of the old pacemaker and the implantation of a new pacemaker in the right infraclavicular area during this hospitalization, with his discharge from the facility occurring on [September 20, 2012]. On [September 27, 2012], the veteran was admitted at a local hospital with evidence of hypotension and tachycardia. Hypotension and tachycardia is consistent with signs of sepsis and/or impending septic shock. An infectious disease consultant, on [October 3, 2012], acknowledged the presence of “MRSA (“methicillin-resistant staphylococcus aureus”) of the old pacemaker pocket site that eroded through.” The veteran's most likely underlying cause of death was sepsis or septic shock from bacteremia. See December 2020 Medical Opinion DBQ at 4. Thus, the primary cause of death and the contributory cause of death were not service connected. Indeed, the Veteran's service-connected disabilities at the time of his death were bilateral tinnitus and bilateral sensorineural hearing loss. See November 2011 Rating Decision Codesheet. Instead, at the time of the Veteran’s death, he was not service connected for SVT, atrial fibrillation, or SSS. See November 2011 Rating Decision Codesheet. The appellant contends that the Veteran’s death was caused by an injury in service. Specifically, the Veteran’s MVA in September 1964, that resulted in a diagnosis of paroxysmal auricular tachycardia. See August 1963 Service Treatment Records (STR) at 33. However, the December 2019 VA examiner opined that it is NOT at least as likely as not that the Veterans SVT was caused by military service or that his SVT caused or substantially contributed to the Veteran’s cause of death of respiratory failure. The examiner opined “the Veteran's cardiac diagnoses around the time of his death were atrial fibrillation and sick sinus syndrome. These are heart conduction abnormalities that are distinct from the SVT he had in service.” Id. at 2-3. The examiner went on to explain that the Veteran’s pacemaker was used to treat his SSS, and that SVT is not treated with a pacemaker. Id. at 2-3. The December 2020 examiner concurred with the relevant findings of the December 2019 examiner’s findings. See December 2020 DBQ. The December 2020 examiner further opined the Veteran’s ultimate demise was not the result of respiratory failure as discussed above. The examiner opined the Veteran died of sepsis as a result of his pacemaker which was not used to treat his SVT but rather his atrial fibrillation and sick sinus syndrome. Lastly, the examiner opined “[i]t is NOT AT LEAST AS LIKELY AS NOT that the cardiac disability caused the veteran's respiratory failure.” Id (emphasis in the original) at 4. The examiner further opined, “It is NOT AT LEAST AS LIKELY AS NOT that the Veteran’s cause of death of respiratory failure underwent any incremental increase in disability, regardless of its permanence, due to the cardiac disability.” See December 2020 Medical Opinion DBQ (emphasis in the original) at 5. Thus, the primary cause of death and the contributory cause of death were not service connected. After careful review, the Board finds that the weight of the evidence is against a link between either the immediate or contributing causes of the Veteran's death and his service. With respect to the appellant's specific contentions, the Board finds that the 2019 and 2020 VA examiner’s opinions, which found no link between the Veteran's service and the conditions that caused the Veteran's death, is more probative. The opinions reflect a thorough consideration of the pertinent evidence, including the Veteran's service treatment records and post-discharge history, as well as the appellant's lay contentions that the Veteran’s irregular heartbeat that began in service, and ultimately resulted in the Veteran’s death and alternatively that his respiratory failure listed as the cause of death on the Veteran’s death certificate. The VA examinations noted the Veteran’s heart condition of SVT or noted respiratory failure (as noted on the Veteran’s death certificate) were not related to service nor were they the immediate or contributing causes of the Veteran's death, but rather it was sepsis due to treatment of the Veteran’s SSS with the pacemaker. As to the appellant’s lay statement’s that she contends, the Veteran’s death was the result of his irregular heartbeat that began in service, and ultimately resulted in the Veteran’s death and alternatively that his respiratory failure listed as the cause of death on the Veteran’s death certificate was related to his service. See January 2019 Board Videoconference Hearing. While the appellant believes that the Veteran’s death is related to his military experience, she is not competent to provide a nexus opinion as the issue of causation in this case requires knowledge and interpretation of complicated diagnostic medical testing, such as laboratory and radiographic findings. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Given this, the Board finds the VA opinion more probative than the appellant’s contentions as to cause of death. Here, the Board considers VA medical evidence to be more probative where it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board is sympathetic to the arguments raised by the appellant, that the Veteran’s death was the result of his irregular heartbeat that began in service, and ultimately resulted in the Veteran’s death and alternatively that his respiratory failure listed as the cause of death on the Veteran’s death certificate was related to his service, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve, and service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 REASONS FOR REMAND The appellant, widow of the late Veteran, seeks entitlement to DIC. 1. DIC The appellant originally filed a VA Form 21-534 Application for Dependency and indemnity Compensation in January 2013. See January 2013 VA Form 21-534. In this application, the appellant specifically requested consideration of DIC, which also includes cause of death. Subsequent rating decisions issued by the RO dated April 2013, May 2013, October 2015, did not address the appellant’s complete claim for DIC. See April 2013 Rating Decision, May 2013 Rating Decision, October 2015 Rating Decision. In May 2013, the appellant filed a notice of disagreement (NOD) claiming Dependency Indemnity Compensation (DIC). See May 2013 NOD. Nonetheless, the issue was not adjudicated in the first instance by the RO although the Veteran identified DIC. In April 2019, the Board remanded this matter for additional development and consideration. See April 2019 Board Remand. In December 2019, the RO issued a Supplemental Statement of the Case (SSOC) that characterized the issue as DIC, but only addressed entitlement to service connection for the cause of death. DIC. See December 2019 SSOC. Notably, DIC can be awarded based on 38 U.S.C. § 1310 as well as 38 U.S.C. § 1318. In November 2020, the Board remanded this matter for additional development and consideration. See November 2020 Board Remand. In December 2020, the RO again issued an SSOC characterizing the issue as DIC, but only addressing entitlement to service connection for the cause of the Veteran’s death under 38 U.S.C. § 1310. See December 2020 SSOC. The Board finds that the appellant’s May 2013 NOD properly initiated an appeal of the April 2013 denial of DIC under 38 U.S.C. § 1318, although that specific issue was not adjudicated. Given such, the Board finds a remand is warranted for the RO to adjudicate the claim for DIC based on 38 U.S.C. § 1318. The matter is REMANDED for the following action: 1. The RO is requested to issue a rating decision to adjudicate the appellant’s claim for DIC based on 38 U.S.C. 1318 and issue a subsequent SSOC. 2. Inform the appellant of her rights and responsibilities in perfecting an appeal. The appellant must be given the appropriate opportunity to respond to the SSOC. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David B. Scheirich, Associate 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.