Citation Nr: 21032750 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-18 403 DATE: May 27, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's certificate of death lists immediate causes of death as septic shock and clostridium (spelled claustridium on his certificate of death) difficile colitis. 2. At the time of the Veteran's death, service connection was established for major depressive disorder, low back disorder with degenerative arthritis with possible disc disease and muscle spasms, residuals of fracture of medial malleolus of right ankle with traumatic arthritis, meniscectomy of right knee residuals of injury, right knee traumatic arthritis, scar residuals status post right knee meniscectomy, residuals of fracture of left ninth rib, and scar of forehead. 3. The medical evidence of record does not demonstrate that any of the Veteran's service-connected conditions were contributing factors to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1310, 1318, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.306, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from January 1968 to October 1969 and from October 1969 to October 1975. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran died in November 2014. The appellant is his widow. The appellant requested a hearing before a Veterans Law Judge. The hearing was set for December 2019, and the appellant was duly notified. There is no indication in the claims file that the letter was returned or otherwise not received by the appellant. The appellant failed to appear at the December 2019 hearing and has not submitted good cause for her failure to appear, therefore, her request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (failure to appear for a scheduled hearing treated as withdrawal of request). Cause of Death The appellant contends the Veteran's nonservice-connected disabilities in conjunction with his service-connected disabilities hastened his death. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC). 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, and 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). 1. Principal Cause of Death The appellant claims that during the de novo review, many of the Veteran's additional illnesses and disabilities, were not considered, and that those disabilities in conjunction with his chronic obstructive pulmonary disease (COPD) and service-connected disabilities caused the Veteran's death. She provided duplicates of medical records already in the file. Those records provided a history of the Veteran's illnesses, service connected and nonservice-connected, but had no reference to complaints, treatments, or diagnoses of septic shock or clostridium difficile colitis. Service-connected disabilities 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). The appellant does not contend, and the record does not support, a finding that the Veteran's septic shock was related to service. Service treatment records do not reflect treatment for or a diagnosis of septic shock. The certificate of death reports the onset of septic shock was two days prior to the Veteran's death. The evidence of record does not provide a link between septic shock and service. The appellant does not contend, and the record does not support, a finding that the Veteran's clostridium difficile colitis was related to service. Service treatment records do not reflect treatment for or a diagnosis of clostridium difficile colitis. The death certificate reports the onset was ten days prior to the Veteran's death. The evidence of record does not provide a link between clostridium difficile colitis and service. The appellant does not contend, and the record does not support, a finding that the Veteran's COPD was related to service. Service treatment records do not reflect treatment for or a diagnosis of COPD. VA medical records reflect that the Veteran was diagnosed with COPD in 2005, about 30 years after service. The evidence of record does not provide a link between COPD and service. The Board has considered the appellant's contentions attributing the Veteran's COPD and nonservice-connected disabilities to his death. However, the evidence of record does not demonstrate that these disabilities were related to the Veteran's service, nor were they contributing factors in conjunction with a service-connected disability in the Veteran's death. The evidence also does not show that the appellant has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation or aggravation. Therefore, the appellant is not competent to provide an opinion on whether the Veteran's COPD and nonservice-connected disabilities in conjunction with his service-connected disabilities caused his fatal septic shock or clostridium difficile colitis. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The evidence of record does not tend to show that the Veteran's service-connected disabilities, singly or jointly with some other condition, to include COPD, immediately caused the Veteran's death, was an underlying cause of his death, or was etiologically related to his death. As such, the claim for service connection for the cause of the Veteran's death, based on consideration of his service-connected disabilities as the primary cause of his death, must be denied. 2. Contributory Cause of Death The Board has also considered whether the Veteran's service-connected disabilities may be found to have contributed to his death. As noted above, the Veteran was service connected for major depressive disorder, low back disorder with degenerative arthritis, possible disc disease and muscle spasms, right knee traumatic arthritis, scar residuals status post right knee meniscectomy, meniscectomy of right knee residuals of injury, residuals of fracture of medial malleolus of right ankle with traumatic arthritis, residuals of fracture of left ninth rib, and scar of forehead. None of these were listed as contributory on his certificate of death but may nevertheless be found to have contributed to the Veteran's death. 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; and 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). 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 though 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). 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). As noted above, the Veteran was service connected for several musculoskeletal disabilities and major depressive disorder prior to his death. With the exception of his major depressive disorder, rated at 70 percent disabling, and the scar of forehead, rated at 0 percent disabling, the remaining service-connected disabilities were static in nature and did not affect any vital organs or vital body function. The evidence does not show that any of these static musculoskeletal disabilities caused debilitation. The evidence of record, also, does not support a finding that the Veteran's major depressive disorder caused debilitation. The appellant argues that the Veteran's mental health disorder inhibited his ability to participate in the VA healthcare system and make decisions addressing his health. The record shows, however, the Veteran had a history of receiving treatments and attending his doctor's appointments. VA medical records throughout this time show that the Veteran was alert and oriented and was willing to learn necessary treatment for his medical issues. The evidence does not show that he was debilitated due to his major depressive disorder. The evidence of record does not support a finding that the Veteran's service-connected disabilities were contributory causes of the Veteran's death. As such, the claim for service connection for the cause of the Veteran's death, based on consideration of his service-connected disabilities as contributory causes of the Veteran's death, must be denied. 3. Additional Arguments The appellant argues that the Veteran was in receipt of a rating of 100 percent permanent and total for greater than four years prior to his death. The Veteran was awarded a total disability rating based on individual unemployability effective February 17, 2009. The Board has considered entitlement to DIC under 38 U.S.C. § 1318 where benefits may be payable as if the cause of death was service connected if (1) the cause of the veteran's death was not due to willful misconduct and the veteran was continuously rated totally disabled by reason of service connected disabilities for a period of 10 years or more immediately preceding death; or (2) for five years if the total evaluation was continuously in effect from the date of discharge from military service; or (3) for one year if the veteran was a former POW who died after September 30, 1999. 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 is not entitled to DIC benefits pursuant to 38 C.F.R. § 1318 as a matter of law. 38 U.S.C. § 1318; 38 C.F.R. § 3.22; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, service connection for the cause of the Veteran's death is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MAX P. SALAZAR, JR Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Doerfler, 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.