Citation Nr: 21027769 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 13-14 573 DATE: May 6, 2021 ORDER Entitlement to Dependency and Indemnity compensation (DIC) for the cause of the Veteran's death under 38 U.S.C. § 1310 is denied. Entitlement to DIC for the cause of the Veteran's death under 38 U.S.C. § 1318 is denied. Entitlement to death pension is denied. FINDINGS OF FACT 1. The Veteran passed in June 2010. The Veteran's death certificate records his immediate cause of death as cardiopulmonary arrest, underlying causes of death as end stage liver disease and liver cirrhosis, and significant conditions contributing to death as polysubstance abuse. 2. During the Veteran's lifetime, he was awarded service connection for right knee recurrent subluxation at a 10 percent rating from September 2, 1972, and at a maximum rating of 30 percent rating from February 14, 1991, and the record fails to demonstrate that the disability was a principal or contributing factor to his cause of death. 3. The preponderance of the evidence does not show that the Veteran's immediate cause of death (cardiopulmonary arrest), underlying causes of death (end stage liver disease and liver cirrhosis), and significant conditions contributing to death (polysubstance abuse) were incurred in or related to his military service. 4. During the Veteran's lifetime, he was in receipt of a permanent and total rating for non-service-connected pension from May 31, 2001, for a cognitive disorder, diabetes mellitus, asthma, coronary artery disease with hypertension and bilateral fasciitis. 5. The record lacks sufficient evidence to show the appellant's net worth and income do not exceed certain requirements. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1310 have not been met. 38 U.S.C. § 1110, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.312. 2. The criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 3. The criteria for a death pension have not been met. 38 U.S.C. §§ 1503, 1541; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272, 3.273. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1970 to September 1972. The Veteran passed in June 2010. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in January 2016 at which time the appellant was granted recognition as the surviving spouse of the Veteran for the purpose of receiving VA death benefits and remanded the remaining issues. After completing additional development and adjudicating the claims, the RO returned the case to the Board for appellate review. The Board notes that at the time of her formal appeal to the Board in May 2013, the appellant requested a hearing. Although she was notified that an August 2015 hearing was scheduled in this matter, she failed to appear for the hearing, without good cause. As such, the Board finds that the appellant's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to DIC benefits for the cause of the Veteran's death under 38 U.S.C. § 1310 is denied. The appellant seeks entitlement to DIC benefits for the cause of the Veteran's death. When any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay DIC to such veteran's surviving spouse, children, and parents. 38 U.S.C. § 1310. Alternatively, under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes. In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA DIC. See generally, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). DIC benefits for cause of death under 38 U.S.C. § 1310 is the greater benefit. A veteran's death will be considered service-connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). It is a contributory cause if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Turning to the merits of the claim, the Veteran passed away in June 2010. His death certificate lists his immediate cause of death as cardiopulmonary arrest, the underlying cause of death as end stage liver disease and liver cirrhosis, and a significant condition contributing to death as polysubstance abuse. During the Veteran's lifetime, he had been awarded service connection for right knee recurrent subluxation at a 10 percent rating from September 2, 1972, and at a maximum rating of 30 percent rating from February 14, 1991. However, the Veteran's death certificate does not record any knee injury as a principal cause or a contributory cause of death. 38 C.F.R. § 3.312(a). The Board has no basis to contradict this medical evidence on his death certificate and there is no evidence to the contrary, or any evidence even suggesting that his right knee disability was either a principal or contributory cause of death. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Hence, the Board finds that the Veteran's only service-connected disability, right knee subluxation, was not a principal or contributing factor to his cause of death. The Board has also considered whether the Veteran's immediate cause of death of cardiopulmonary arrest, or the underlying cause of death of end stage liver disease and liver cirrhosis, with the significant condition contributing to death of polysubstance abuse, was incurred in, or aggravated by service. In other words, the Board has considered whether any of the conditions listed on the Veteran's death certificate should be service-connected. Service connection for the cause of a veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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. § 3.307, 3.309. Certain chronic diseases, to include cardiovascular disease and cirrhosis of the liver, will be presumed to be related to service if shown as chronic in service; or, if a veteran's condition became manifest to at least a specific degree within one year from the date of separation from service; or, if they it was noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 C.F.R. §§ 3.307, 3.309. Notably, the appellant has not asserted any specific argument or provided any explanation as to why she believes any of the conditions noted to have caused Veteran's death is related to his military service. Moreover, the evidence of record does not indicate that any of the conditions identified as the immediate or underlying cause of the Veteran's death were incurred in or were otherwise related to his military service. A review of the Veteran's in service treatment records (STRs) shows no clinical findings or diagnoses related to heart, liver, or substance abuse disorders. The Veteran's STRs do not otherwise document any complaints, treatment for, or diagnoses of conditions related to the conditions from that which was incurred as a result of the cause of death. The Veteran's post-service VA and private treatment records show the first evidence of the conditions leading to his death, decades after his discharge from active duty service. A December 1999 VA medical center (VAMC) emergency room treatment record reflects that the Veteran had coronary artery disease, hypertension, and diabetes mellitus with intermittent chest pain. Treatment records as early as December 2000 document the Veteran's report of social alcohol use. A February 2001 VAMC treatment record reflects a note of possibly alcohol related history of pancreatitis, as well as the Veteran's past history of alcohol abuse and drug abuse. The examiner further noted that the Veteran was markedly obese and noted an impression of liver disease. An April 2001 VAMC record notes that the Veteran's hepatitis C infection was identified in 1995. The examiner noted the Veteran's risks for infection were unclear and the Veteran specifically denied a history of blood transfusion, "IDA/ snorting", tattoos, or multiple sexual partners. The examiner noted that the Veteran was a retired police officer and had intervened in numerous altercations during his work role that resulted in him being exposed to others' blood and having sustained an occasional bite or scratch. The examiner further noted that the Veteran had an established diagnosis of cirrhosis. A late May 2001 VAMC treatment record reflects that the Veteran had chronic hepatitis C infection, with an onset of December 1999. An October 2003 private treatment record from St. David's Medical Center reflects that the examiner noted that the Veteran needed to have counseling for drug and alcohol abuse. The Veteran's diagnoses included liver disease secondary to hepatitis C and polypharmacy abuse with history of cocaine use. A March 2004 VAMC record reflects that the Veteran had an active problem of acute alcoholic intoxication and was assessed with hepatic cirrhosis associated with hepatitis C and alcoholism, with a noted history of polysubstance abuse. An October 2004 VAMC treatment record reflects that the Veteran had several medical problems including cirrhosis of the liver due to alcohol dependencies, hepatitis C and hepatic encephalopathy. The Veteran was assessed with polysubstance dependence, alcohol induced mood disorder and other multiple medical problems. In this case, the record reflects that the Veteran's liver condition was identified in 1995 and coronary artery disease was noted in 1999, many decades after his military discharge. The record is void of evidence to the contrary. While the Veteran's post-service treatment records note liver and heart conditions, as noted above, the record does not reflect that while in service, the Veteran reported complaints related to a liver or heart condition, nor were such disorders noted during his active duty service. As such, the Board finds that the record lacks evidence to establish that the heart-related disorder and liver conditions that caused or contributed to his death began during his military service or soon after his military discharge. Indeed, the record demonstrates that the liver and heart conditions manifested 23 and 27 years, respectively, since the Veteran's last date of service in 1972. Thus, there is no evidence that the Veteran's liver or heart conditions began in service or were present within a year of his discharge. The Board acknowledges that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board acknowledges that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the record lacks any medical evidence or lay statements, including from the Veteran himself or the appellant, that indicate he had an ongoing liver or heart condition during or since service. Essentially, there is no evidence indicating that the liver conditions that caused the Veteran's death, or his fatal heart condition, was incurred in or caused by his military service. Moreover, the preponderance of the evidence does not indicate that the Veteran's heart and liver disorders were otherwise, directly related to his military service. Again, the Board highlights that his service treatment records are negative for any clinical findings or diagnoses related to the disorders that lead or contributed to his death. The evidence fails to demonstrate an in-service complaint, event, injury, or illness related to a liver or heart disorder. Additionally, there is no evidence of record, lay or competent medical evidence, which indicates that there is a causal relationship between the fatal disorders and the Veteran's service. Indeed, the medical evidence is silent for a medical opinion relating the Veteran's cardiopulmonary failure or liver conditions to an in-service incident, injury, or condition. The appellant has not submitted or identified any evidence to the contrary. Regarding the Veteran's polysubstance abuse, the Board notes that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not as a result of a veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (Feb. 10, 1998). Therefore, service connection may not be granted for any of the Veteran's substance abuse diagnoses as directly related to service, and thus, such cannot be the basis to grant the claim for service connection for the cause of his death. In reaching the above determination, the Board has considered the few lay statements of record. The Board acknowledges the appellant's July 2003 statements that the Veteran had cancer and was service related. See July 2003 correspondence; See September 2003 Correspondence. The claims file does not show that the appellant submitted any further evidence or argument in support of the claim, beyond making this contention. Significantly, however, the Veteran's death certificate does not list any form of cancer as a cause or contributor to his death, nor does the evidence indicate that he was diagnosed with such due to service. To the extent that the appellant claims, even generally, that service connection is warranted for the cause of the Veteran's death, she has not demonstrated any specialized knowledge or expertise to indicate her capable of rendering a competent medical opinion. The etiology of the conditions causes and contributing to the Veteran's death falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran's death certificate, service treatment records, and post-service medical records of greater probative value than the appellant's bare contention that the Veteran's cause of death should be service connected because contemporaneous evidence has greater probative value than history as reported by the claimant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Thus, after a review of the evidence, the Board determines that the Veteran's polysubstance abuse was a significant condition contributing to death and the preponderance of the evidence demonstrates that such polysubstance abuse was of his own willful misconduct and not subject to service connection. Further, the evidence fails to establish that the Veteran's cardiopulmonary arrest, end stage liver disease, or liver cirrhosis was incurred in or aggravated by service, and the evidence fails to show such conditions were present soon after his military discharge. It thus follows that the Veteran's cause of death is not proximately due to or aggravated by service. As the preponderance of the evidence weighs against the claim, the appeal is denied. 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 in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). 2. Entitlement to DIC for the cause of the Veteran's death under 38 U.S.C. § 1318 is denied. Pursuant to 38 U.S.C. § 1318, a deceased veteran, is a veteran who dies, not as the result of the veteran's own willful misconduct, and who was in receipt of or entitled to receive (or but for the receipt of retired or retirement pay was entitled to receive) compensation at the time of death for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. As noted above, the Veteran was only awarded service connection for right knee recurrent subluxation at a 10 percent rating from September 2, 1972, and at a maximum rating of 30 percent rating from February 14, 1991. Thus, he did not have a service-connected disability rated as total (100 percent rating) at any time prior to his death. Moreover, a polysubstance abuse is listed on his death certificate as a contributing cause of death. The Board finds that, based on the medical and lay evidence, that the Veteran's polysubstance abuse was a result of his own willful conduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.30. Therefore, his cause of death additionally disqualifies the appellant from benefits as provided under 38 U.S.C. § 1318. 3. Entitlement to death pension is denied. The appellant claims entitlement to death pension benefits based on her status as the Veteran's surviving spouse. During his lifetime, the Veteran was in receipt of a permanent and total rating for non-service-connected pension from May 31, 2001, for a cognitive disorder, diabetes mellitus, asthma, coronary artery disease with hypertension and bilateral fasciitis. Death pension is available to the surviving spouse of a Veteran because of his nonservice-connected death, as long as the Veteran served for the required period of time during wartime subject to certain income limitations. See 38 U.S.C. §§ 101, 1541; 38 C.F.R. §§ 3.3, 3.23. The Secretary shall pay to the surviving spouse of each veteran of a period of war who met the service requirements prescribed in 38 U.S.C. § 1521 or who at the time of death was receiving (or entitled to receive) compensation or retirement pay for a service-connected disability, pension at the rate prescribed, as increased from time to time under section 38 U.S.C. § 5312, which provides the annual adjustment of certain benefit rates. For death pension the term veteran includes a person who died in active service under conditions which preclude payment of service-connected death benefits, provided such person had completed at least 2 years honorable military, naval or air service, as certified by the Secretary concerned. See 38 C.F.R. §§ 3.3(b)(3)(i), 3.3(b)(4)(i)). Basic eligibility exists if, among other things, the surviving spouse's income does not exceed the applicable maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23, as changed periodically and reported in the Federal Register. See 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3(b)(4), 3.23(a), (b), (d)(5). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived) shall be included during the 12-month annualization period in which it was received, except for listed exclusions. See 38 U.S.C. § 1503(a); 38 C.F.R. § 3.271(a). Income from Social Security Administration (SSA) benefits is not specifically excluded under 38 C.F.R. § 3.272 and therefore is included as countable income. The types of income excluded from countable income for VA pension purposes include: welfare benefits; maintenance benefits furnished by a relative, friend, or a charitable organization; VA pension benefits; casualty loss reimbursement; profit from the sale of property; joint accounts; medical expenses; expenses of last illnesses, burials, and just debts; educational expenses; a portion of the beneficiary's children's income; Domestic Volunteer Service Act Programs payments; distributions of funds under 38 U.S.C. § 1718; survivor benefit annuities; Agent Orange settlement payments; restitution to individuals of Japanese ancestry; cash surrender value of life insurance policies; income received by American Indian beneficiaries from trust or restricted lands; Radiation Exposure Compensation Act payments; and Alaska Native Claims Settlement Act payments. 38 C.F.R. § 3.272. Unreimbursed medical expenses in excess of five percent of the MAPR, which have been paid, may be excluded from an individual's income for the same 12-month annualization period to the extent they were paid. See 38 C.F.R. § 3.272(g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the surviving spouse received no reimbursement, such as through an insurance company. However, medical insurance premiums themselves, as well as the Medicare deduction, may be applied to reduce countable income. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. See 38 C.F.R. § 3.271(a)(1). Nonrecurring income (income received on a one-time basis), such as the surviving spouse benefit for the month of the veteran's death, will be counted for pension purposes for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12-month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). As noted above, income from SSA benefits is not specifically excluded under 38 C.F.R. § 3.272 and therefore is included as countable income. See 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. The record reflects that on her application for DIC and death pension, the appellant indicated that she claimed or was in receipt of SSA benefits not based on her own employment. The record further reflects that the appellant was granted SSA benefits with a date of initial entitlement of September 2016. In a September 2016 letter, the RO asked the appellant to provide income and medical expense information for each year from 2011 to present. However, the record shows that the appellant did not provide such information. The record further fails to demonstrate that the appellant has inquired about the matter or made further correspondence with the VA since making her June 2015 hearing request. On the other hand, the RO has documented attempts to correspond with the appellant on multiple occasions. See February 2018 Report of General Information and Correspondence. As such, the Board finds that further attempts would be futile. The record reflects that the appellant received notice of what is needed to support her claim for death pension, which included notice that the evidence must show that her net worth and income do not exceed certain requirements. See February 2014 Notice letter. Although the record reflects the appellant is unrepresented and she has shown a prior willingness to provide requested information, by not corresponding with the VA since June 2015, the appellant has not reported her financial status nor exhibited a current willingness to provide required financial information in support of her claim. Essentially, the record lacks sufficient evidence and the necessary information to determine whether the appellant's net worth and income exceed the eligibility requirements for death pension benefits. In reaching this determination, the Board has considered the September 2003 rating decision granted the Veteran an extraschedular permanent and total disability rating and the finding of no family income. The Board has also considered an October 2003 notice of benefit approval and May 2004 food stamp receipt notice from the Texas Department of Human Services. The Board has considered the Veteran's signed retirement refund information submitted by the appellant in October 2014. The Board has considered the appellant's record of liens and assessments submitted in January 2015. However, the VA is unable to assign arbitrary income or hypothesize as to the appellant's current financial status from this scant and incomplete information. The duty to assist is not a one-way street; the claimant has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193. With the record reflecting that the appellant has not made contact with the VA since June 2015, further attempts to verify her income are not warranted. Thus, the Board must deny the appellant's claim for a death pension. The appellant is free to file a Supplemental claim if she so desires. (Continued on the next page) The Board is grateful to the Veteran and his surviving spouse for his honorable service and regrets that a more favorable outcome could not be reached for the appellant. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.