Citation Nr: 21028092 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-61 736 DATE: May 10, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in January 2016 due to probable acute coronary syndrome and hypertensive heart disease. 2. The Veteran's acute coronary syndrome and hypertensive heart disease are not shown to be etiologically related to service. 3. At the time of his death, service connection had been established for bilateral hearing loss, tinnitus, and arthritis; his disabilities did not contribute substantially or materially, combine to cause, or aid or lend assistance to the production of death. 4. The Veteran was not in receipt of a 100 percent rating for 10 years prior to his death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.312. 2. The criteria for entitlement to DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to March 1955. The Veteran passed away in January 2016 and the Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and her daughter testified before the undersigned Veterans Law Judge in September 2019. The Board remanded this case in December 2020. Entitlement to service connection for the cause of the Veteran's death In order 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). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. Id. The standards and criteria for determining whether or not a disability from which a veteran has died is service connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C. § 1310. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Service-connected diseases or injuries involving active processes affecting vital organs should 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). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even those evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). The Veteran died in January 2016. The Veteran's death certificate listed probable acute coronary syndrome and hypertensive heart disease as the causes of death. At the time of his death, the Veteran was service connected for bilateral hearing loss, tinnitus, and arthritis of the right thumb. Thus, the question before the Board is whether the Veteran is entitled to service connection for acute coronary syndrome or hypertensive heart disease. The first mention of a heart issue in the Veteran's record was in July 1986 where the Veteran submitted a Request for Details of Expenses (VA Form 21-8049). One of the Veteran's expense listed was high blood pressure medication. A note from a VA medical center (VAMC) in February 2004 shows the Veteran underwent a coronary artery dye test. The test revealed a 100 percent blockage in the right front. In April 2004, the Veteran underwent a coronary artery bypass grafting (CABG) at a VAMC. The Board observes that there is no medical evidence of heart diseases until many years following service. Neither the entrance or separation medical exams noted any heart or hypertension issues. The medical evidence does not suggest that any such disorders were related to any incident of service. Furthermore, there is no competent evidence of record showing that the disorders that resulted in the Veteran's death were incurred in service or were proximately due to or the result of any disease or injury incurred in service. The Board notes that no VA opinion has been requested. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability; (2) evidence establishing that he incurred an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). A medical opinion addressing the Veteran's heart issues is unnecessary in this case. Here, the Veteran indeed had a diagnosis of heart conditions. However, there is no evidence establishing that he incurred an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period. There is also a lack of an indication the current disability or symptoms may be associated with service. Finally, there has been no competent evidence or even argument made linking the cause of the Veteran's death to the disabilities for which service connection was separately established. Thus, no VA opinion was requested. In September 2019, the Appellant and her daughter testified in a Board hearing. The Appellant testified that the Veteran had hepatitis and tuberculosis while in service. She felt that these conditions led to the Veteran's heart issues. The Appellant also stated that the Veteran began having heart issues around the early 1970s. While the appellant believes that the Veteran's cause of death is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of heart conditions and a link to tuberculosis or hepatitis are matters not capable of lay observation and require medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran's cause of death is not competent evidence. Absent any competent evidence in support of the Veteran's claim, there is no basis for obtaining a medical etiology opinion. The Board notes that the Veteran was denied service connection for hepatitis in 1955 due to no residuals shown. In a July 2010 rating decision, the Veteran was denied for a second time for entitlement to service connection for hepatitis due to no new and material evidence. On the same July 2010 rating decision, the Veteran was also denied service connection for tuberculosis due to no service records showing a diagnosis while on active duty and no link to active service. The Veteran did not appeal these rating decisions. This case was remanded by the Board in December 2020 for medical records that were not in the file. On January 4, 2021, the VA sent a letter to the Appellant explaining how to submit releases or medical evidence to adjudicate the claim. The Appellant did not respond. The Board is very sympathetic to the Appellant's loss of her husband, the Veteran, but for the foregoing reasons the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. Additionally, the medical evidence does not show he was diagnosed with a heart condition by March 1956, one year from separation from active duty. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 VA also pays DIC benefits to the surviving spouse of a deceased veteran who was in receipt of, or entitled to receive compensation, at the time of his death for a service-connected disability that was rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) if the disability was rated by the VA as totally disabling continuously since a veteran's release from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b). "Entitled to receive" means that, at the time of death, the veteran had service-connected disability(ies) rated totally disabling by VA but was not receiving compensation for reasons specified in the regulations which are not relevant here (such as withholding or waiver of payment), or because the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). As noted above, the Veteran was service connected for bilateral hearing loss, tinnitus, and arthritis of the right thumb. Of these disabilities, the Veteran's bilateral hearing loss was rated at 100 percent from December 2009. As the Veteran was not in receipt of or entitled to receive compensation at the rate of 100 percent (total rating) due to a service-connected disability or disabilities for a period of ten or more years immediately preceding his death, the Appellant consequently is not entitled to 38 U.S.C. § 1318 DIC. The Veteran does not meet the other criteria under this section either, not having been a prisoner of war and having been separated from service in 1955. The Board is sympathetic to the Appellant's claim. However, the facts in this case are not in dispute, and application of the law to the facts is dispositive. Given the foregoing, the Board finds that entitlement to DIC benefits under 38 U.S.C. § 1318 claim must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.