Citation Nr: 21041089 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-54 090 DATE: July 8, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC), to include service connection for the cause of the Veteran's death, is denied. FINDINGS OF FACT 1. The Veteran died in October 2015, at the age of 98. The immediate cause of death was cardiac arrest due to dementia. No other medical condition was listed as a significant condition contributing to death but not resulting in the underlying cause of death. 2. The veteran's service-connected disabilities were: bilateral hearing loss at 100%; duodenal ulcer at 20%; and tinnitus at 10%. 3. There is no competent medical evidence or medical opinion linking the veteran's fatal cardiac arrest and dementia, with his service-connected disabilities. 4. The Veteran was not evaluated totally disabled for service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). CONCLUSION OF LAW The criteria for an award of DIC benefits, to include service connection for the cause of death, are not met. 38 U.S.C. §§ 101(16), 1101, 1110, 1112, 1131, 1310, 1318; 38 C.F.R. §§ 3.22, 303, 3.307, 3.309, 3.312 REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a Veteran who had active military service from April to October 1942. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant, the surviving spouse of the Veteran, contends that the RO committed error in denying service connection for the cause of the veteran's death. She argues that that the Veteran's service-connected hearing loss some contributed to or aggravated his fatal dementia. Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service was either the principle, or a contributory, cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related. 38 C.F.R. § 3.312(b) (2002). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially and combined to cause death. 38 U.S.C. § 1310 (West 2002); 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." 38 C.F.R. § 3.312(c)(2). In this case, the death certificate shows that the Veteran died in in October 2015, at the age of 98. No autopsy was conducted, and the nature of the Veteran's death was indicated to be natural. The immediate cause of death was cardiac arrest due to dementia. No other medical condition was listed as a significant condition contributing to death but not resulting in the underlying cause of death. During the Veteran's lifetime, service connection had been granted for: bilateral hearing loss (100%) effective April 19, 2011; duodenal ulcer (20%) effective August 27, 1952; and tinnitus (10%) effective April 19, 2011. These ratings remained in effect until the Veteran's death. In the June 2016 Notice of Disagreement (NOD) the appellant asserted that her "husband's death from cardiac arrest and dementia is service-connected," arguing that his service-connected hearing loss somehow aggravated his dementia. In the October 2016 substantive appeal she made similar arguments, that the Veteran's service-connected hearing loss was so severe that it caused confusion and hastened his death. The Board has considered the appellant's statements, to include the assertions that the Veteran's service-connected hearing loss somehow aggravated his dementia and/or hastened the Veteran's death. As the appellant is not shown to have medical education or experience, she is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., such as pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The appellant is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, her lay assertions do not constitute evidence upon which service connection for the cause of the Veteran's death can be granted. The Veteran died of natural causes at age 98 from a cardiac arrest due to dementia. There is no credible evidence which in any way links the Veteran's death to service or any of his service-connected disabilities. Accordingly, service connection for the cause of the Veteran's death is not warranted and the appeal is denied. Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death is service-connected, even though the veteran died of nonservice-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was "entitled to receive," compensation for service-connected disability that (1) was continuously rated as totally disabling for the 10 years immediately preceding death, (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). The total rating may be schedular or may be a total disability rating based on unemployability (TDIU). 38 C.F.R. § 3.22(c). The term "entitled to receive" means that, at the time of death, the veteran had filed a claim for disability compensation during his lifetime, and the veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. § 5314 to offset an indebtedness of the veteran; (3) the veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C. § 1174(h)(2); (5) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C. § 5308 but determines that benefits were payable under 38 U.S.C. § 5309. See 38 C.F.R. § 3.22(b)(3). At the time of his death in October 2015, the Veteran was service connected for: bilateral hearing loss (100%) effective April 19, 2011; duodenal ulcer (20%) effective August 27, 1952; and tinnitus (10%) effective April 19, 2011. While the Veteran did have a 100 percent rating for his hearing loss at the time of his death, he was not continuously rated as totally disabling for the 10 years immediately preceding death, nor are any other of the criteria met which would permit an award of DIC based under 38 U.S.C. § 1318. For the reasons set forth above, the preponderance of the evidence is against entitlement to DIC, including entitlement to service connection for the cause of the Veteran's death, or under the criteria of 38 U.S.C. § 1318. The appeal is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.