Citation Nr: 21041834
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 15-21 074
DATE: July 10, 2021

ORDER

Entitlement to service connection for major depressive disorder and anxiety for substitution purposes or accrued benefits purposes is granted.

Entitlement to service connection for a back disability for substitution or accrued proposes is denied.

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 November 2015, and the death certificate reported the cause of death as cardiac arrest due to or as a consequence of a seizure, diabetic ketoacidosis, and new onset diabetes mellitus.

2. A November 2015 autopsy found the cause of the Veteran's death was a dissection of the wall of the root of the ascending aorta.

3. The Veteran's acquired psychiatric disorder clearly and unmistakable preexisted service and there is not clear and unmistakable evidence showing that the Veteran's acquired psychiatric disorder preexisted service and was not aggravated by service.

4. The Veteran's back disability was not manifested in service and is not shown to be otherwise causally or etiologically related to service or a service-connected disability.

5. A disability of service origin is not shown to have been causally or etiologically related to, or to have played any role in producing or hastening the Veteran's death.

6. The record evidence does not establish that a 100 percent disability rating was in effect for a period of ten years immediately preceding death, that a 100 percent disability rating was in effect since release from active duty and for at least five years immediately preceding death, or that the Veteran was a prisoner of war (POW) during his active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for major depressive disorder and anxiety for substitution and/or accrued benefits purposes are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for a back disability for substitution and/or accrued benefits purposes are not met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310.

3. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312.

4. The criteria for DIC benefits under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1998 to August 2000. The Veteran died in November 2015. The Appellant is the Veteran's surviving spouse and was properly substituted as the appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appellant testified before the undersigned in a February 2019 Board hearing. A transcript of the hearing is of record. The Board previously remanded this matter in March 2020 and February 2021.

1. Entitlement to service connection for an acquired psychiatric disorder

The appellant contends that the Veteran's acquired psychiatric disorder was related to service.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

The post-service mental health treatment records and VA examinations raise the issue of whether the Veteran may have had a psychiatric disorder before joining the active service, implicating the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted and enrolled for service. See 38 U.S.C. § 1111. A medical history, even if recorded at the time of examination does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304 (b)(1).

"When no preexisting condition is noted up on entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). This is a difficult burden to overcome because the clear and unmistakable standard is a high one and because of the two-part nature of the burden. Moreover, with respect to the aggravation prong of the burden, the Secretary is in the unusual position of being required to prove a negative. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) ("When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.")

The Veteran's May 1997 enlistment examination does not note any psychiatric disability. The Veteran did check the box of frequent difficulty sleeping in his "Report of Medical History." However, the entrance examiner did not indicate any issue with sleep or a psychiatric disorder upon entrance.  In the Veteran's June 2000 separation examination, the examiner noted the Veteran drank alcohol socially, but otherwise did not indicate any psychiatric disorder. The Veteran checked the box in the "Reported History" for frequent trouble sleeping, depression, and nervousness. The Veteran explained that he could not sleep at night, that he had treatment for posttraumatic stress disorder before and during his military service, and that his legs shook all of the time.   

The Veteran underwent a VA PTSD examination in April 2014. The examiner diagnosed the Veteran with major depressive disorder and anxiety disorder. The Veteran reported an in-service event of having a fight in service on the day of his son's death. The examiner found the Veteran did not have PTSD.

In May 2020, a VA medical opinion was obtained. The examiner opined that the Veteran's major depressive disorder was less likely than not caused incurred in or caused by the claimed in-service injury, event, or illness, to include his deployment to Bosnia. The examiner reasoned that the upon the Veteran's service entrance examination, the Veteran endorsed frequent trouble sleeping and denied that he went to counseling, noting he "handled it himself." The examiner noted the Veteran's separation report a noted history of trouble sleeping, depression or excessive worry, nervous trouble, fatigability, and recommendation that he cut down on alcohol. The post-discharge records documented that the Veteran consistent endorsed having a turbulent childhood and having mental health issues since the age of 12 or 13 when he attempted suicide. Records also include the Veteran reported he was hospitalized when he was 16 for depression and PTSD. The examiner noted the Veteran's spouse died in 2001 and his son died in 2000. The examiner concluded given these records the Veteran had a preexisting mental health issues for which he was hospitalized prior to enlisting in the service, hence it is less likely that his major depressive disorder was caused or incurred during his deployment or due to his son's death in 2000. The examiner further found the Veteran's other service-connected disabilities less likely than not caused his major depressive disorder. The examiner reasoned that the Veteran's mental health disability began prior to service. The examiner further opined it was less likely than not the Veteran's major depressive disorder was aggravated beyond its natural progression by his service-connected disabilities. The examiner reasoned that the development of depression is quite variable such that some individuals rarely experience remissions while others may experience years with few or no symptoms of episodes. The examiner found the Veteran's symptoms waxed and waned over the years with issues of unemployment, financial stressors, and loss of social support. The examiner found that the Veteran's periodic symptom of excerebration was consistent with the course of the natural progression of major depression disorder. The examiner did state that it was not possible to objectively assess the possible impact of the Veteran's service-connected disability might had on the Veteran's functioning given the available evidence without resorting to speculation. 

In August 2020, the VA obtained a psychiatric medical opinion. The examiner opined that the Veteran's claimed condition of PTSD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran endorsed trauma and stressor related symptoms prior to enlistment, during service, and post discharge. The examiner noted that the Veteran did not pursue mental health treatment from 2001 to 2011. The examiner noted that in 2012, 2013, and 2015, treatment records show a diagnosis of PTSD. The examiner stated that this diagnosis was not fully evaluated or established prior to or during the 2014 PTSD disability benefits questionnaire. The examiner concluded that given that a diagnosis of PTSD had not been established, it is less likely than not PTSD incurred in or caused by PTSD during service. 

In February 2021, VA obtained another psychiatric opinion. The examiner found the claimed condition, which clearly and unmistakably existed prior to service was clearly and mistakeably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that the Veteran's record contains elements of mental health issues prior to service. Notably, the previous medical opinions noted the Veteran had endorsed frequent trouble sleeping on the entrance examination; in addition the Veteran endorsed posttraumatic stress disorder and previous treatment prior and during his service.  The examiner noted that the exact nature of the diagnosis is hard to speculate. The examiner stated that "grief" is not a mental health diagnosis and when noting PTSD, people routinely utilize the term PTSD to refer to a traumatic event, even if they do not meet the DSM diagnosis. The examiner concluded that there exists clear and unmistakable evidence that the Veteran did have a mental health issue prior to service, only there is no way to conclusively determine the actual nature or specific diagnosis without resorting to mere speculation. The examiner further opined that there is no clear and unmistakable evidence that the Veteran's mental health issues were not aggravated by service. The examiner reasoned that the Veteran had numerous behavioral issues while in service which may point to a worsening of the mental health issues, though that opinion may be resorting to speculation, so there is no notion if there was no increase in the disability during service. The examiner further noted that there is no firm or obvious diagnosis (although obvious treatment or mental health issue prior to service), so there is no way to determine that there was no increase to a hypothetical diagnosis or if an increase was only due to the natural progression. 

Initially, the Board finds that because no psychiatric disorder was noted in the May 1997 entrance examination report, the Veteran is presumed to have been in sound condition when he began active duty service. See 38 U.S.C. § 1111. The Board notes that while the Veteran reported trouble sleeping in his history, this in itself does not constitute a notation. The mere fact that he had trouble sleeping does not necessarily denote a psychiatric disorder; and a medical history, even if recorded at the time of examination does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304 (b)(1). 

As the presumption of soundness attaches, the Board must address whether there is clear and unmistakable evidence that the claimed disability both preexisted service and was not aggravated by service. Wagner, 370 F.3d at 1096. Here, the evidence demonstrates the Veteran's psychiatric disorder clearly and unmistakably preexisted service. The Board relies on the February 2021 VA examiner's opinion that the Veteran's psychiatric disorder clearly and unmistakably preexisted service. The examiner reasoned that record contains elements of mental health issues prior to service and coupled with the Veteran's statements that he had some form of a psychiatric disorder prior to service including that which resulted in at least two psychiatric hospitalizations indicates that the Veteran had a psychiatric disorder prior to service, even if it is impossible to determine the nature of that disorder. 

As the Veteran's psychiatric disorder clearly and unmistakably preexisted service, the Board must determine whether there is clear and unmistakable evidence the disorder was not aggravated by service. The Board finds that there is not clear and unmistakable evidence the Veteran's psychiatric disorder was not aggravated by service. The February 2021 VA examiner's opinion is ambiguous. The opinion provided indicates that the Veteran's acquired psychiatric disorder clearly and unmistakably was not aggravated by his service. However, the reasoning behind that opinion indicates that there is no clear and unmistakable evidence that the Veteran's mental health issues were not aggravated by service. The February 2021 examiner noted that since it is impossible to determine the nature of the disorder prior to service it is unclear as to the nature of any aggravation. That opinion does not rise to clear and unmistakable evidence that service did not aggravate the Veteran's psychiatric disorder beyond the natural progression of the disorder. As such, on that point the Board will resolve doubt in the appellant's favor, and grant service connection for the Veteran's acquired psychiatric disorder.

The final question for the Board is, therefore, what "current" psychiatric disorder the Veteran had that was aggravated by service. The Veteran's VA treatment records indicates that the Veteran had PTSD, mood disorder, and major depressive disorder. The VA examinations of record the record found that the Veteran did not have PTSD. The April 2014 and August 2020 VA examiners both determined that the Veteran did meet the criteria for PTSD. The April 2014 examiner diagnosed the Veteran with depressive disorder and anxiety disorder. The Board finds that the preponderance of the competent and credible evidence indicates that the Veteran had depressive disorder and anxiety disorder. The Board relies on the fact that the only VA psychiatric examiner that actually examined the Veteran found depressive disorder and anxiety disorder, and therefore, are the most probative evidence of the Veteran's current disorders at the time of his death. There is no indication in the record that any other mood disorder was etiologically related to service, thus not applicable to this grant. 

For these reasons, and notwithstanding the uncertainty about the precise nature of his diagnosis, the Board finds that providing the appellant the benefit of the doubt, the Veteran clearly and unmistakably had a preexisting psychiatric disorder that was not clearly and unmistakably not aggravated by service, and as such, the presumption of soundness is not rebutted, and service connection must be granted. 

By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran's favor. See 38 U.S.C. § 5107 (b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only 'an approximate balance of positive and negative evidence'... , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). Accordingly, the Board will grant service connection for major depressive disorder and anxiety for substitution purposes.

The Board notes that in the February 2019 Board hearing the appellant raised an alternative theory that the Veteran's psychiatric disorder was related to his treatment at a VA facility, essentially a claim based on 38 U.S.C. § 1151. However, light of the grant of benefits described above, the Board concludes that the appellant's 38 U.S.C. § 1151 claim is rendered moot. Entitlement to VA compensation under 38 U.S.C. § 1110 or § 1131, based on service connection, is the greater benefit, and it is granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1151, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010). VA is only required to consider an appellant's claim under the provisions of 38 U.S.C. § 1151, if the Veteran's claim for service connection is denied under 38 U.S.C. § 1110. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 

2. Entitlement to service connection for a back disability

The Veteran contended that his back disability was etiologically related to service, specifically a motor vehicle accident in service. In the alternative, the Veteran contended that his back disability was secondary to his service-connected foot disability. Further, the appellant testified at the February 2019 Board hearing that the Veteran's back was related to his foot disability.

In addition to the general service connection provisions outlined above (see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)), the Board notes that service connection is not warranted for congenital or developmental defects. 38 C.F.R. § 3.303 (c). However, service connection may be warranted for such defects if there is superimposed pathology due to disease or injury in service. VAOPGCPREC 82-90 (July 18, 1990). Service connection may be granted for congenital or hereditary diseases if initially manifested in or aggravated by service. See VAOPGCPREC 82-90,VAOPGCPREC 67-90.

Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Veteran's service treatment records indicate that the Veteran had low back pain for 4 days and went to sick call in February 1999. The treatment records did not indicate any known injury. In August 1999 VA treatment records note that the Veteran was in a motor vehicle accident. The Veteran reported he had low back pain for two days. The service treatment provider found the Veteran had a muscular strain in the lower back. During the Veteran's June 2000 separation examination, the Veteran reported that he had back problems in service. The examiner conducting the separation examination noted that there was no sequalae.   

The Veteran's VA treatment records indicate that the Veteran first complained of back pain in May 2009. The Veteran complained of foot pain and back pain. The Veteran stated he thought the constant pressure on his feet was causing his back to hurt. VA treatment records indicate that beginning in November 2012, the Veteran sought consistent treatment for his back pain. 

In April 2014, the Veteran underwent a VA lumbar examination. The examiner diagnosed the Veteran with lumbar sprain and congenital lumbar abnormality. The examiner remarked the Veteran had an antalgic gait due to his right foot issue. The examiner opined that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while the Veteran may have had various sprains while in the military, the Veteran's June 2000 separation examination noted in response to the Veteran's back "no sequelae" which presumed he was not having an issue at that time and thus subsequent back issues have to be deemed to be a new injury or condition in life.

In June 2020, VA obtained an addendum medical opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event or illness. The examiner reasoned that service treatment records noted that the Veteran had low back pain in February 1999 and had a motor vehicle accident in August 1999. The examiner noted that separation examination noted back problems with no sequalae. The examiner stated that this suggests a resolution of an acute situation. The examiner further noted that there is no documentation of low back pain until 2009, after service. The examiner found that as the events in service appeared to be acute and had resolved by separation, and as there was no evidence of care for nine years, it is less likely than not the Veteran's low back strain was due to or incurred in service, which was acute and self-limited. The examiner further found that there is no mechanism by which the Veteran's shoulder conditions could cause or aggravate the Veteran's low back strain, as they are anatomically separate and there is no evidence of aggravation beyond the natural course for the lumbosacral strain. The examiner found the same applied for hammertoes. The examiner found they are not physically or anatomically connected and there is no mechanism by which they would cause or aggravate the Veteran's back conditions. The examiner noted that the condition of one joint does not cause a condition of another joint. Finally, the examiner noted that there was an incidental congenital abnormality identified, transitional L/S joint. The examiner stated this was considered insignificant and the rationale as to its impact is the same as noted above. The examiner explained there is no evidence to suggest chronic aggravation of the mild preexisting congenital anomaly. The examiner noted it is not considered a disease and is a common anomaly.

In March 2021, VA obtained another medical opinion. The examiner opined the Veteran's back disability is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner further opined that it is less likely than not the Veteran's foot condition aggravated the Veteran's back disability beyond its natural progression. The examiner reasoned that the Veteran's hammertoes did not cause or aggravate the Veteran's lumbar spine condition. The examiner stated that antalgic gait will not cause a condition of another joint or joint system and a bilateral condition would not cause a condition of the back due to gain accommodation. The examiner explained that as the foot condition was bilateral, there would be little lateral alteration in mechanical forces. Rare exceptions include a less than or equal to 5 percent leg length discrepancy and or chronic exaggerated Trendelenburg gait. Therefore, it is less likely than not that the Veteran's back conditions were due to the Veteran's foot conditions. The examiner explained this also includes aggravation. The examiner further addressed aggravation by stating that there is no evidence of aggravation of the Veteran's lumbar spine condition beyond the natural course due to any cause, including the Veteran's foot conditions. The examiner acknowledged the Veteran's testimony that his back pain was attributed to his feet, but nevertheless, it did not cause the Veteran's sprain or strain.

The Veteran testified before a decision review officer (DRO) in February 2015. The Veteran testified that he injured in his back in 2000. The Veteran stated he was in a car accident. The Veteran stated he believed he was treated at the hospital in the emergency room. The Veteran also testified that he had cumulative effects on his back from riding in vehicles while in service, as well as being giving a 100 percent effort all the time. The Veteran stated that he had pain in his back since service. The Veteran stated that he had an MRI, and he had two herniated discs. The Veteran stated that the issue is like a cyst on his back and that it was a chronic issue that was ongoing. 

The appellant testified in February 2019 Board hearing. The appellant stated she remembered that the Veteran telling her he hurt his back in service. The appellant stated that that the Veteran was getting treatment off and on since then. The appellant stated the Veteran's back hurt since she first met him in 2003. The appellant stated that the Veteran tried to stay off his feet because of the back pain. 

The Board finds that the Veteran is competent to report that he had back pain since service. However, the Board finds that statement is not credible. During the Veteran's separation examination, the Veteran reported he had back problems in service, but did not indicate that he had current back problems and the examiner noted that there was no sequalae for his back injuries. Therefore, the Board finds the Veteran's statement that he had back pain since service is not credible and holds little probative value. The Veteran's statement he had a herniated disc is not supported by the contemporaneous record. The Veteran indicated that he underwent an MRI and that he was diagnosed with herniated discs. However, the Veteran's post-service treatment records do not indicate a diagnosis of a herniated disc. Further, the April 2014 examiner found the Veteran was only diagnosed with a congenital anomaly and lumbar sprain. As the treatment records contradict the Veteran's statement that he had a herniated disc, the Board finds such statements not credible and therefore, hold no probative weight. Finally, the Board finds that the Veteran's statement that his bilateral foot issues caused or aggravated his back pain is not competent. Although the Veteran is competent to state that he had back pain and foot pain at the same time, he is not competent to link the two separate conditions together either on the basis of proximate cause or aggravation. Further, there is no evidence in the record other the Veteran's statement in May 2009 and the appellant's suggestion that the Veteran's feet caused his back pain.

The Board finds that the Veteran had a diagnosis of a lumbar sprain and congenital anomaly. The Veteran had in-service events of reported back pain and a motor vehicle accident that caused back pain. However, the Board finds that the preponderance of the competent and credible evidence reflects that the Veteran's back disability was not etiologically related to his service or to a service-connected disability. First, the Board notes that the Veteran's separation examination did not indicate the Veteran separated with a back disability. The separation examination specifically stated the Veteran's earlier back injuries had no sequalae. Further, the April 2014 and June 2020 VA examiners found that the Veteran's in-service back pain was acute and not related to his current and post-service back disabilities. Therefore, the Board finds no nexus between the Veteran's post-service back disability and his in-service reports of back pain.

The Board finds that the Veteran's back pain is not secondary to the Veteran's service-connected hammertoes. First, the only probative evidence in the record is the June 2020 and March 2021 VA examination opinions which indicate that the Veteran's hammertoes did not cause or aggravate the Veteran's back sprain. Notably, the examiner March 2021 found any altered gait would not cause or aggravate the Veteran's back disability because both feet were disabled therefore there would little alteration in gait to cause the pain. As noted, the Veteran did state he felt his feet problems caused his back pain in May 2009, however, that statement holds no probative value. Therefore, the Board finds that service connection secondary to his bilateral hammertoes is not warranted. See 38 C.F.R. § 3.310. 

Finally, the Board notes that the April 2014 examiner diagnosed the Veteran with a congenial anomaly. First, the June 2020 examiner explained there is no evidence to suggest chronic aggravation of the mild preexisting congenital anomaly. The examiner noted it is not considered a disease and is a common anomaly. The June 2020 reasoning does not contradict itself as the examiner explained that the Veteran's congenital anomaly was not aggravated, and it is not a disease (incapable of deterioration). Thus, the examiner's explanation that there was no aggravation reinforces the fact that the Veteran's back anomaly was a defect and not a disease with no superimposed disease or injury resulting in a current back disability. Therefore, the Board finds that service connection for the Veteran's noted congenital anomaly is not warranted.

Thus, the greater weight of the evidence shows the Veteran's current back disability was not incurred in, or was otherwise related to, service or his service-connected hammertoes. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appellant's claim for entitlement to service connection for a back disability for substitution purposes must be denied.

3. Entitlement to service connection for the cause of the Veteran's death

The appellant contends that the Veteran's service-connected disabilities and his back disability made the Veteran's body susceptible to the disease processes that led to the Veteran's death.

The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when the 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 that is not related to the principal cause. To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312.

The Veteran died in November 2015. The Veteran's death certificate indicates the immediate cause of the Veteran's death was cardiac arrest due to as a consequence of a seizure, diabetic ketoacidosis, and new onset diabetes mellitus. 

At the time of his death, the Veteran was service connected for right shoulder strain with bursitis and osteoarthritis; bilateral hammer toes; and the herein granted major depressive disorder and anxiety disorder. 

VA treatment records indicate that an autopsy of the Veteran was conducted in November 2015. The autopsy report stated that the cause of the Veteran's death was considered to be dissection of the wall of the root of the ascending aorta. The autopsy report found the cause of the dissection root of the ascending aorta indicates findings similar to that of cystic medial degeneration. The report stated that cystic medial degeneration may be of an unknown etiology, may be aging relating, may be associated with illicit drug use, or may be due to an inherited genetic trait. 

In June 2020, VA obtained a medical opinion regarding the Veteran's death. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's death. The examiner reasoned that the clinico-pathologic correlation lists the immediate cause of death as a dissecting aortic root aneurysm, resulting in cardiac tamponade, with cardiogenic shock, and cardiac arrest. The examiner stated that the cause of the aneurysm was cystic medial degeneration, a degenerative condition of the connective tissue of the wall of the aorta. The examiner noted it is either idiopathic or age-related or may be associated with illicit drug use or some connective tissue disorders. The examiner found there was no evidence for a connective tissue disorder. The examiner found the seizure was secondary to the cardiac events and resultant hypoxia. The examiner explained that neither of these conditions had any relationship with the Veteran's shoulder conditions, hammer toes, or psychiatric conditions. The examiner concluded that it is less likely than not the Veteran's service connection conditions are in any way related to the Veteran's cause of death, either primary or secondary. 

The appellant testified before the Board in February 2019. The appellant stated that she was told the Veteran's cause of death was aortic dissection, which is basically his heart muscle weakening. The appellant stated all of the Veteran's muscles were weakening, specifically he had weakness in his back, his discs, and his muscles were deteriorating. The appellant appears to suggest that the Veteran's weakening back due to a back disability was related to the Veteran's death. 

Based on the evidence as outlined above, the Board finds that the criteria for service connection for the cause of the Veteran's death have not been met. On review of the record, there is no evidence, and the appellant does not contend otherwise, that the dissection of the wall of the root of the ascending aorta which ultimately caused the Veteran's death was related to service. The Board considered the appellant's testimony that implied the Veteran's service-connected disabilities and non-service-connected disability of a back disability was related to the Veteran's death. However, the appellant statements are not competent evidence due to the medical complexity of the matter to determine the cause of the Veteran's death. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Notably, the autopsy did not point to any of the Veteran's service-connected disabilities or his back as a cause or substantial or material contribution to the cause of death. Finally, the Board notes that the June 2020 VA examiner found that it is less likely than not that the Veteran's service connection conditions were in any way related to the Veteran's cause of death, either primary or secondary. 

Based on the foregoing, the Board finds that the preponderance of the probative and persuasive evidence is against a finding of entitlement to service connection for the cause of the Veteran's death on any basis. Thus, the appellant's claim for service connection for the cause of the Veteran's death is denied.

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); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

4. Entitlement to DIC pursuant to 38 U.S.C. § 1318

The appellant made no specific contention concerning DIC benefits under U.S.C. § 1318.

Under 38 U.S.C. § 1318, VA death benefits may be paid to a deceased Veteran's surviving spouse 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 was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former (POW) who died after September 30, 1999. 38 U.S.C. § 1318. The total rating may be either schedular or based upon unemployability. Id. 

Essentially, the only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision, which were not previously considered by VA, provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively.

Based on the evidence of record, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. First, the Veteran did not meet the durational requirement for a total disability rating under 38 U.S.C. § 1318. During the Veteran's lifetime, he was rated 10 percent from June 7, 2012 to January 26, 2014 and 20 percent thereafter, for his right shoulder strain and 0 percent from June 7, 2012 for his bilateral hammertoes. The Veteran's combined disability rating was 10 percent from June 7, 2012 to January 26, 2014 and 20 percent from January 27, 2014. The Board notes that the Veteran was herein granted a service connection for his acquired psychiatric disorder. That rating has yet to be assigned by the AOJ, however even if was determined to be a 100 percent, the effective date would be June 7, 2012 as there is no earlier claim. As noted above the Veteran died in November 2015, thus the Veteran's disability ratings could potentially only be retroactive to three and a half years prior to his death. As such, the Veteran could not be rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death. Additionally, the Veteran was not a former POW.

Finally, the appellant has not alleged or argued CUE in a prior decision. The appellant has not identified any error committed in any prior rating or Board decision. Accordingly, DIC benefits are not available on that basis. See 38 C.F.R. § 3.22 (b)(3). 

In sum, the Board finds that the basic threshold criteria for establishing entitlement to DIC benefits under 38 U.S.C. § 1318 are not met, and the claim must be denied. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert Batten

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.