Citation Nr: 21029720 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-37 332 DATE: May 14, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate shows the immediate cause of death was septic shock, with aspiration pneumonia and chronic pleural effusions listed as contributing causes of death. 2. At the time of the Veteran's death, he was service-connected for acquired psychiatric disorder, left knee degenerative joint disease, and mild right knee genu varus deformity with mild to moderate degenerative joint disease. 3. The preponderance of the evidence is against a finding that the Veteran's death was caused or contributed by a disease or injury incurred in service. 4. The preponderance of the evidence is against a finding that the Veteran's death was caused by, or contributed to substantially or materially by, a service-connected disability, including the Veteran's acquired psychiatric disorder. 5. The preponderance of the evidence is against a finding that Veteran's service-connected disabilities, including acquired psychiatric disorder, did not accelerate the Veteran's death or result in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other diseases that caused the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1137, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January to June 1960. Unfortunately, he died in February 2011. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The appellant's claim was remanded for additional development in October 2018, November 2019, and November 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for the cause of the Veteran's death 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. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. 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. § 3.312. 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 issue involved will be determined by exercise 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. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is inherently one not related to the principal cause. 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. 38 C.F.R. § 3.312 (c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The record reflects that, at the time of his death, the Veteran was service-connected for an acquired psychiatric disorder, which was rated 30 percent disabling. He was also service-connected for left knee degenerative joint disease, and mild right knee genu varus deformity with mild to moderate degenerative joint disease. The Veteran's death certificate reports that the immediate cause of the Veteran's death was septic shock, with aspiration pneumonia and chronic pleural effusions listed as contributing causes of death. Initially, the Board notes that the Veteran was not service-connected for septic shock, pneumonia, or pleural effusions. Moreover, the appellant has not contended that any of these conditions should have been service-connected. The appellant has also not contended that a condition that was not service-connected at the time of death either caused or contributed to the Veteran's death. The appellant has contended that the Veteran's service-connected for acquired psychiatric disorder was of such severity as to have a material influence in accelerating death. In April 2015, she submitted a medical opinion from Dr. C.M.Q., who opined in a March 2015 report that the Veteran's service-connected psychiatric disorder caused him to not take "proper care of himself," which the physician opined contributed substantially to his death. In her June 2015 Notice of Disagreement, the appellant argued that an adequate medical opinion regarding the Veteran's death was not of record and that even if one was obtained that the opinion most favorable to the claim should be used. Unfortunately, the Board finds that the evidence of record weights against a finding that the Veteran's service-connected conditions, including his acquired psychiatric disorder caused, or substantially or materially contributed to, the Veteran's death. In this regard, the Board finds probative the opinions of the December 2020 examiners to be of the highest probative value. In December 2020, a VA psychiatrist opined that it is less likely than not that the Veteran's acquired psychiatric disorder caused his death, contributed substantially or materially to his death, or aided or lent assistance to the production of his death. The examiner stated that the medical evidence and medical literature did not support any link between the Veteran's psychiatric condition and the causes of the Veteran's death, including septic shock, aspiration pneumonia or chronic pleural effusions. The examiner supported this opinion by noting that the Veteran received psychiatric interventions for his mental health condition until shortly before his death (Dec 2010), which the examiner indicated would have limited the condition's ability to be a material influence in accelerating death. The examiner also noted review of the opinion provided by Dr. C.M.Q. and indicated that the opinion did not support a connection between the Veteran's psychiatric condition and his death as the opinion did not provide any rationale documenting the physiologic relation/consequence between the Veteran's psychiatric condition and his death. In December 2020, a VA physician also opined that it is less likely than not that the Veteran's service connected left and right knee disabilities caused his death, contributed substantially or materially to his death, or aided or lent assistance to the production of his death. The examiner stated that none of the medical evidence or medical literature support any link between the Veteran's service-connected conditions and the Veteran's death. The Board finds that the opinions provided by the December 2020 examiners included thorough rationales that were supported by the evidence of record, including consideration of the lay statements of the appellant and the Veteran's medical records since service. As such, the Board finds the medical opinions provided by the December 2020 VA examiners to be highly probative evidence weighing against a relationship to between the Veteran's service-connected conditions and the Veteran's death. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). While the Board notes the contention of the appellant that it should the opinion of the VA examiners and Dr. C.M.Q. to be of equal weight, the Board finds the opinions of the December 2020 examiners to be of greater probative value than the opinion provided by Dr. C.M.Q. The opinion provided C.M.Q. merely notes that the Veteran was service-connected for an acquired psychiatric disorder and stated that the Veteran's condition caused him to be careless and not to take proper care of himself, which the doctor indicated contributed substantially to his death. The Board, however, finds that this opinion is not supported by any rationale. The physician did not explain how the Veteran's acquired psychiatric disorder resulted in him not caring for himself properly. Further, the examiner did not indicate how such a lack of care "contributed substantially to his death." As Dr. C.M.Q. opinion was not supported by a sufficient rationale it is afforded little probative weight. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board acknowledges that the appellant is competent to report observations of the Veteran's symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In certain instances, lay testimony may be competent to establish medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, this particular case involves a complex medical question. The appellant has not been shown to possess the requisite medical expertise or knowledge to determine that the Veteran's acquired psychiatric disorder (or any other service-connected condition) caused or contributed to his death. As such, the Board assigns greater probative value to the VA opinions for the reasons detailed above. As such, the Board finds that the weight of the competent evidence of record is against a finding that the Veteran's acquired psychiatric disorder or any other service-connected condition either caused, or substantially or materially contributed to, the Veteran's death. See 38 C.F.R. §§ 3.102, 3.303, 3.312. (Continued on the next page) Accordingly, the Board finds that the Veteran's death was not caused by a disease or injury incurred in service; and was not caused by, or contributed to substantially or materially by, a service-connected disability, including the Veteran's acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.