Citation Nr: 21041381 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-03 193 DATE: July 9, 2021 ORDER Entitlement to service connection for cause of death is granted. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. It is as likely as not that the Veteran's service-connected disabilities contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 2. The grant of service connection for cause of death renders the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 moot, and thus, the appealed issue is dismissed. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.303, 3.312(a) and (b) (2020). 2. The claim for entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from August 1966 to April 1969 and from September 1971 to May 1976. The Veteran died in July 2017. The appellant is the surviving spouse. Entitlement to service connection for cause of death The appellant appeals the denial of service connection for cause of the Veteran's death. In order to establish service connection for cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran died in July 2017. His death certificate lists the cause of death as failure to thrive. No other conditions were noted. At the time of death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), peripheral neuropathy of upper/ lower extremities, type 2 diabetes mellitus, residuals of gunshot wound (right arm), and malaria. The appellant argues that the Veteran's cause of death of failure to thrive is a multifactorial issue which may have been caused by chronic concurrent diseases and functional impairments to include his service connected conditions. In November 2017, the VA examiner opined that the condition claimed was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The examiner reasoned that the death certificate documents that the Veteran died on July [REDACTED], 2017 and the cause of death was listed as failure to thrive. The examiner noted that the Veteran's service connected conditions (PTSD, DM II, diabetic peripheral neuropathy of all four extremities, residuals of right arm gunshot wound in Vietnam, and malaria) are not documented on the death certificate as causing or substantially contributing to his death. The examiner expressed that the VA records show an impression of multi-infarct dementia, that the Veteran was very debilitated by strokes and that he was described as having "wandering behaviour, hallucinations, is unwilling to follow simple instructions or do simple tasks." The examiner also noted that treatment records mentioned the Veteran's history of chronic pancreatitis, which was related to previous chronic alcohol abuse, chronic diarrhea secondary to pancreatic insufficiency, low vit B12, and anemia. The examiner opined that all of these conditions would predispose to "failure to thrive" in the Veteran and that none of these conditions were related to his service-connected conditions. In June 2021, however, Dr. V, Ph.D., stated that, based on the clinical research and the Veteran's diagnosed conditions, it is as least as likely as not that the Veteran's chronic PTSD resulted in the chronic abuse of alcohol which caused his strokes and his ultimate death. Therefore, he opined that it was more-likely-than-not, that the Veteran's chronic PTSD contributed substantially to his passing and it combined with alcohol abuse to cause the death. It was noted that there is a causal connection between PTSD, alcohol abuse, and strokes and his failure to thrive. Therefore, Dr. V found that the Veteran's PTSD was a contributory cause to his death. In June 2021, Dr. L noted that the Veteran was service-connected for PTSD, diabetes, and Agent Orange exposure, and that he was diagnosed with several strokes, chronic pancreatitis, pancreatic insufficiency, and failure to thrive. It was also noted that he had a history of chronic alcohol abuse. The VA examiner stated that he agreed with the examiner that failure to thrive is reasonably caused by the disorders mentioned. Dr. L opined that these conditions are the direct and secondary result of the Veteran's service-connected diabetes and PTSD. It was noted that the Veteran's failure to thrive was caused by, or contributed to by, his strokes, chronic pancreatitis, pancreatic insufficiency and chronic diarrhea. Dr. L stated that the strokes were more likely than not caused by, or contributed to by, his service-connected diabetes and PTSD. Dr. L further found that the pancreatitis, pancreatic insufficiency and chronic diarrhea were more likely than not caused by, or contributed to by, his chronic alcohol abuse, which itself was more likely than not caused by, or contributed to by, his PTSD. He opined that the Veteran's failure to thrive and ultimately his death is therefore service connected. The record further reflects that, in August 2010, a VA PTSD examiner opined that the Veteran's alcohol dependence was "at least as likely as not secondary to combat exposure/PTSD." Here, the Board has been presented with positive and negative evidence regarding the Veteran's cause of death. In weighing the positive and negative evidence of record, the Board finds in favor of the claim for service connection for cause of the Veteran's death. As noted above, the Veteran's cause of death was listed as failure to thrive. Positive evidence has been submitted showing a link between the Veteran's service-connected disabilities and his death. The death certificate in conjunction with the lay statements of record and medical opinions from Dr. V and Dr. L place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, service connection for cause of death is granted. Entitlement to DIC under 38 U.S.C. § 1318 The appellant appeals the denial of benefits under 38 U.S.C. § 1318. In light of the grant of benefits described above, the Board concludes that the appellant's respective DIC claim is rendered moot. Indeed, pursuant to 38 U.S.C. § 2307, there are service-connected death burial benefits that are available under 38 U.S.C. § 1310, but not under 38 U.S.C. § 1318. See Mintz v. Brown, 6 Vet. App. 277, 282-83 (1994); see also Moffitt v. Brown, 10 Vet. App. 214, 224 (1997). Entitlement to VA benefits under 38 C.F.R. § 1310 is the greater benefit, and it is granted in full. Therefore, no additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1318, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010); Timberlake v. Gober, 14 Vet. App. 122 (2000). Further, the Court has indicated that only if an appellant's claim for service connection for the cause of the Veteran's death is denied under 38 U.S.C. § 1310 is VA required to also consider an appellant's claim under the provisions of 38 U.S.C. § 1318. See Timberlake, 14 Vet. App. at 134-35. In light of the grant of service connection for the cause of the Veteran's death, the claim for entitlement to DIC under 38 U.S.C. § 1318 is moot, and this appealed issue is dismissed. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.