Citation Nr: 22015442 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-36 914 DATE: March 17, 2022 ORDER Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran was not evaluated totally disabled for a 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). 2. The Veteran's death certificate shows that he died in December 1985 and lists the causes of death as cardiac tamponade, ruptured, or eroded pericardial vessel and metastatic disease. 3. At the time of his death, the Veteran did not have any service-connected disabilities. 4. The evidence persuasively weighs against a finding that the cause of the Veteran's death was etiologically related to active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to DIC pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. 2. The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army January 1953 to January 1955. The Veteran died in December 1985. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the appellant and her daughter testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Duties to Notify and Assist In a January 2017 VA 21-4142 Authorization to Disclose Information to the Department of Veteran's Affairs, the appellant stated that the Veteran received private treatment at two facilities: SSM St. Louis University Hospital as well as Central Medical Center, the location listed as the place of death on the Veteran's death certificate. St. Louis University Hospital responded that the Veteran was not a patient of theirs and the address provided for Central Medical Center was incorrect. VA sent a letter dated September 2017 requesting the appellant complete a release form enclosed with the letter with the correct facility name and address if she wished for VA to attempt to obtain the records on her behalf. However, the appellant did not provide VA with a completed VA Form 21-4142a or submit any private treatment records from Central Medical Center or any other facility. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The appellant responded that Central Medical Center is no longer open, she was unable to obtain the records, and that she had submitted all of the relevant documentation in her possession. Here, the Board finds that, as the appellant has rejected VA's attempts to generate the necessary information to assist with substantiating his claim, there is no duty to seek further development. VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The appellant has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). As an initial matter, the Board acknowledges the appellant's lay statements regarding an additional period of service as well as the appellant's son's November 2021 lay statement stating that he and the Veteran served in the Army Reserves from 1982 to 1985. However, these statements are outweighed by the evidence of record, including military personnel records and an application for service connection dated April 1985 completed by the Veteran where he did not endorse being a member of the reserve forces or national guard, and in fact wrote "NONE." See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Accordingly, the following assessment of the appellant's claim focuses solely on the Veteran's verified period of active service. 1. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 Under 38 U.S.C. § 1318, a surviving spouse may be entitled to DIC in the same manner as if the veteran's death were service connected, under certain specific conditions. VA shall pay DIC under 38 U.S.C. § 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or "entitled to receive" compensation for a service-connected disability rated totally disabling provided that (1) the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death; (2) the disability was continuously rated totally disabling since the veteran's release or discharge from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former prisoner of war who died after September 30, 1999, the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. The total disability rating may be either schedular or based upon unemployability. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. After a careful review of the evidence of record, the Board finds that the appellant's claim for entitlement to DIC pursuant to 38 U.S.C. § 1318 is not warranted. At the time of the Veteran's death, service connection was not in effect for any disabilities, and therefore the Veteran's combined disability rating at the time of death, and for the entirety of his life prior thereto, for the purposes of eligibility for DIC pursuant to 38 U.S.C. § 1318 was zero. It is clear that the Veteran was not rated totally disabled for a continuous ten-year period prior to his death, or that he was continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, it has not been shown nor has it been alleged that the Veteran was "entitled to receive" compensation for a service-connected disability rated totally disabling for the appropriate time periods. 38 C.F.R. § 3.22(b). The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. § 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. § 3.22. As the evidence shows the Veteran was not continuously rated totally disabled during the 10 years preceding his death, was not continuously rated totally disabled since release from active duty, and was not a former prisoner of war, the legal criteria for DIC pursuant to 38 U.S.C. § 1318 have not been met. Accordingly, entitlement to DIC pursuant to 38 U.S.C. § 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered to have been due to service-connected disability where the evidence establishes that a disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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 one which contributed substantially or materially to cause death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In the instant case, at the time of his death, the Veteran was not service connected for any of the diseases listed as primary or contributory causes of death. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When the evidence is evenly balanced or approximately so with regard to whether service connection is warranted, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Id.) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Turning to the relevant evidence of record, the Veteran died in December 1985. The death certificate lists the primary cause of death as cardiac tamponade with contributory causes of a ruptured or eroded pericardial vessel and metastatic disease. The appellant seeks service connection for the Veteran's cause of death. The appellant has put forth several arguments in support of her claim for service connection for the cause of the Veteran's death. First, the appellant asserted in multiple statements, including during her October 2021 hearing, that the Veteran's death was due to smoking tobacco provided to him in service. Alternatively, the appellant asserts that the Veteran died of lung cancer caused by asbestos exposure in service. During his lifetime, the Veteran was not service connected for any disabilities. As such, the ultimate question before the Board is whether the diseases that led to the Veteran's death were incurred in or aggravated by service or otherwise etiologically related to any in-service illness, injury, or event. Based on the analysis below, the Board finds that the evidence persuasively weighs against the claim, and service connection for the Veteran's cause of the death is not warranted. The Veteran's service treatment records do not show diagnosis or treatment for any signs or symptoms indicative of cardiac tamponade, a ruptured or eroded pericardial vessel, or metastatic disease during service. Although the Veteran complained of various cardiac symptoms during service including chest pain, experiencing a racing heart while trying to sleep, and reporting missing beats, all examinations and chest x-rays by treating physicians during service were characterized as normal. Moreover, the January 1955 separation examination deemed the Veteran's heart normal. Available post-service treatment records do not contain any complaints or treatment for cardiac tamponade, a ruptured or eroded pericardial vessel, or metastatic disease. However, as the Veteran's service treatment records contained complaints regarding his heart, a May 2018 opinion was obtained to determine whether the Veteran's cause of death, cardiac tamponade due to a ruptured or eroded pericardial vessel, was incurred in or caused by service. The examiner found that the evidence of record persuasively weighed against such a finding. The examiner opined that the Veteran's palpitations and chest pains noted in service were manifestations of his later diagnosed mitral valve prolapse, a condition that usually manifests itself at a young age and is life-long. The doctor further opined that the evidence persuasively weighs against a finding that his mitral valve prolapse, in the left ventricular cavity, was the cause of his pericardial, meaning the sack around the heart, cardiac tamponade. He explained that these conditions occur in in different areas of the heart. The VA examiner concluded that the veteran's cardiac tamponade was more likely the result of pericarditis from his non-service-connected rheumatoid arthritis. There is no evidence that the May 2018 examiner was either not competent or not credible. Significantly, the May 2018 examiner based his opinion on a review of the medical evidence including a specific acknowledgement of the Veteran's in-service and post-service treatment records and provided a well-reasoned rationale supporting the overall conclusion based on the totality of the evidence of record. As such, the Board finds that the May 2018 examiner's opinion is are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, significantly, neither the appellant nor her representative has presented or identified any contrary medical opinion that supports the claim for service connection for the Veteran's cause of death. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Regarding the appellant's assertion that the smoking led to the Veteran's death, the Board notes that for claims received after June 9, 1998, service connection cannot be granted for a disability as the result of the use of tobacco products during service, which includes the use of cigarettes. 38 C.F.R. § 3.300(a). As such, the Veteran's tobacco use in service cannot be considered an in-service disease or injury for the purposes of awarding service connection, and thus will not be discussed further. Id. The Board further acknowledges the appellant's various assertions regarding lung cancer as the Veteran's cause of death. However, as noted above, the Veteran's death certificate does not list lung cancer as a primary or contributory cause of death -- the death certificate does list unspecified "metastatic disease", though no evidence of record provides a diagnosis of lung cancer. In numerous statements to VA, the appellant has stated that the Veteran's lung cancer was discovered following an autopsy. However, there is no autopsy of record, and the death certificate indicates that no autopsy was performed. The VA requested the appellant provide a copy of the autopsy and/or evidence of a diagnosis of lung cancer but to date, neither has been received. Accordingly, the only evidence supporting the Appellant's claim are her own lay assertions. While a lay person is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, the Board need not find a lay witness competent to render opinions regarding the cause of death in a medically complex case nor need the Board give any probative weight to bald assertions by a lay witness, such as the Appellant, regarding that subject. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Appellant, who lacks medical training, is not competent to opine on the cause of the Veteran's death. The questions of medical causation are complex in this appeal and require medical training in order to provide a competent opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As discussed above, there is no competent medical evidence supporting the appellant's claims. In summary, the claim of entitlement to service connection for the cause of the Veteran's death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Although the Board is deeply sympathetic to the appellant, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the denial of this claim does not in any way diminish the Veteran's honorable service to our country. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.