Citation Nr: 22016012 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-51 626 DATE: March 21, 2022 ORDER Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. DIC under 38 U.S.C. § 1151 is denied. REMANDED DIC under 38 U.S.C. § 1310 (service connection for the cause of death) is remanded. FINDINGS OF FACT 1. The persuasive evidence of record is against finding the Veteran was rated totally disabling based on either schedular disability ratings or unemployability at any time prior to his death. 2. The persuasive evidence does not show (and the appellant does not allege) that any treatment or care furnished by VA contributed to the Veteran's death; rather, her claims are focused on care and treatment associated with a September 2016 surgery at Tacoma General Hospital (a private facility). CONCLUSIONS OF LAW 1. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318, 5107 (2018); 38 C.F.R. §§ 3.22, 20.1106 (2021). 2. The criteria for DIC under 38 U.S.C. § 1151 are not met. 38 U.S.C. § 1151, 5107 (2018); 38 C.F.R. § 3.361 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1986 to December 2006 and died in September 2016. The appellant is his surviving spouse. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision. In November 2020, a hearing was held before the undersigned; a transcript is of record. Although the appellant has not explicitly requested DIC under all theories of entitlement, she also has not limited her appeal to certain theories. Therefore, the Board will consider all theories of entitlement available under 38 U.S.C. §§ 1151, 1310, and 1318 to afford the appellant the most sympathetic review of her claim. At the outset, the Board notes that there is no controversy as to whether the appellant is a qualifying surviving spouse eligible to receive DIC benefits under any of these sections. Therefore, the Board will not belabor an eligibility analysis at this time. VA's duty to notify in this matter was satisfied by notice provided in conjunction with the appellant's initial claim, in the subsequent Statement of the Case (SOC), and during the November 2020 hearing and prehearing. VA has obtained the Veteran's service treatment records (STRs) and pertinent post-service treatment records. While the Veteran was not examined in conjunction with the claims being adjudicated, the evidence does not establish threshold requirements for DIC under §§ 1318 and 1151 and, therefore, the low threshold for triggering VA's obligation to provide such examination in those claims is not met. Crucially, the Veteran has had ample opportunity to respond and has not alleged that notice or development was inadequate, and the substantive allegations raised in this appeal will still be considered in the DIC claim under § 1310 that remains on appeal. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 38 U.S.C. § 1318 awards DIC benefits to survivors of a deceased Veteran if (1) the Veteran's death was not the result of willful misconduct, (2) the Veteran was receiving, or entitled to receive, compensation for being totally disabled at the time of death, and (3) the Veteran was rated as totally disabled for specifically listed periods of time. Total disability under this section can either be based on the Veteran's schedular rating or a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 38 C.F.R. § 3.22(c). A review of the record shows that, at the time of his death, the Veteran's service-connected disabilities (sinusitis, thoracolumbar spine degenerative disease with intervertebral disc syndrome (IVDS), sinus headaches, cervical spine IVDS with degenerative arthritis, right lower extremity radiculopathy associated with thoracolumbar spine disability, left ankle strain, tinnitus, peripheral neuropathy of the right ulnar nerve, non-allergic rhinitis, left ear disorder, recurrent bronchitis, liver hemangioma, and dermatitis) were rated 90 percent combined without a TDIU rating. Consequently, the persuasive evidence of record shows he did not meet a threshold requirement for DIC under § 1318, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. 2. DIC under 38 U.S.C. § 1151 38 U.S.C. § 1151 awards DIC benefits for survivors of Veterans whose death was caused by treatment or examination furnished by VA and was either (1) proximately caused by carelessness, negligence, lack of skill, error in judgment, or similar instance of fault on the part of VA or (2) due to an event not reasonably foreseeable. Here, the persuasive evidence of record again shows threshold elements under § 1151 are not met. Notably, neither the lay or medical evidence of record indicates there was any VA treatment or examination preceding the Veteran's death in September 2016. The Board has carefully examined all the medical records and evaluations associated with the Veteran's death, including the appellant's detailed accounts describing the days leading up to his tragic passing, the coroner's autopsy report, pathology reports associated with that autopsy, organ donation documents from LifeCenter Northwest, VA treatment records, and private records from Tacoma General Hospital. While he did undergo a lumbar spine surgery on September 8, 2016 (three days before he died) and the appellant has alleged this may have contributed to his death, this was at Tacoma General Hospital (a private, non-VA facility). Similarly, the Board acknowledges the appellant's allegations that interactions between drugs for service-connected conditions and Dilaudid prescribed post-surgically hastened his death. However, again, the Dilaudid prescription at the center of that theory was prescribed by a private, non-VA provider and there is no similar allegation or evidence suggesting any specific VA examination, treatment, or even the lack thereof contributed to or otherwise hastened his passing. Consequently, the persuasive evidence of record is against awarding DIC under 38 U.S.C. § 1151, the benefit of the doubt does not apply, and the appeal in this matter must be denied. Notably, however, both the theories mentioned above (i.e., that the back surgery or service-connected medications contributed to his death) will be considered substantively as part of the remaining issue on appeal, discussed in the below remand section. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. DIC under 38 U.S.C. § 1310 (service connection for the cause of death) is remanded. As noted above, the appellant broadly argues that medications for service-connected conditions, combined with Dilaudid that was prescribed following a September 8, 2016 private back surgery, contributed to cardiac symptoms leading to the Veteran's death three days later or, alternatively, that the Veteran's service-connected back disability itself did so (by way of the surgery required to treat its symptoms). Although specific medications cited by the appellant (Glucophage, Flexeril, and Zoloft) appear to mostly be intended to treat non-service-connected conditions (e.g., Glucophage (or Metformin) is used to treat diabetes and Zoloft is used to treat psychiatric disabilities, neither of which was service-connected at the time of death), Flexeril is used to treat muscle spasms and the Veteran is service-connected for orthopedic complaints, including neck and low back (i.e., cervical or thoracolumbar spine) disabilities. Despite advancing clear theories of entitlement linking the Veteran's death to service-connected disability in life, no opinion was obtained to assess that theory. Moreover, a review of the medical records surrounding the Veteran's death raises at least some questions that require further medical clarification to properly understand the circumstances of his passing. Specifically, the coroner's September 13, 2016 report and the death certificate list cardiomegaly (i.e., an enlarged heart) among the causes of death. It appears that finding was based on a contemporaneous pathology report from CryoLife, apparently contracted by or otherwise associated with LifeCenter Northwest (the company that handled organ donations at death). Specifically, the coroner pointed to the heart size in that report (565 grams). Notably, however, the CryoLife pathology report appears to indicate both the "corrected pre-dissection weight" and "post-dissection weight" (565 and 531 grams, respectively) were within a normal range (i.e., 348-607 grams), leaving unclear whether there is an unknown medical reason specific to the Veteran's body or case that led the medical examiner to conclude his heart was "enlarged." As the matter already requires further medical clarification to address the appellant's theories of entitlement, the Board finds it also appropriate to clarify this medical question as well. The matters are REMANDED for the following action: 1. Forward the record to a cardiologist or other appropriate physician for a clarifying opinion on the Veteran's causes of death. The examiner must review the entire record, TO SPECIFICALLY INCLUDE BUT NOT LIMITED TO records from Tacoma General Hospital prior to death, medication lists prior to death, the September 2016 autopsy report and all associated materials incorporated by reference (e.g., the CryoLife pathology report, labs, and other records attached to the full autopsy report), records from LifeCenter Northwest (relating to organ donation), lay statements and allegations from the appellant and her representative or surrogates, and the November 2020 sworn testimony. Based on a review of the entire record, the examiner is asked to compassionately respond to the following: (a.) Please clarify the notation of cardiomegaly as a cause of death in the Veteran's death certificate and autopsy report. Specifically, is there evidence that can reconcile the apparent contradiction between the ultimate diagnosis of cardiomegaly with the pathology report showing the Veteran's heart size (565 grams pre-dissection and 531 grams post-dissection) was within a normal range (between 348 and 607 grams)? Please explain why or why not. (b.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's September 8, 2016 lumbar spine decompression laminectomy at Tacoma General Hospital either: i. contributed substantially or materially to the Veteran's death; ii. combined with any other service-connected OR non-service-connected conditions to cause the Veteran's death; iii. aided or assisted in the Veteran's death; OR iv. otherwise hastened the Veteran's death? (c.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that medications he was taking to treat service-connected conditions (including, but not limited to, Flexeril) EITHER: i. contributed substantially or materially to the Veteran's death; ii. combined with any other medications for service-connected OR non-service-connected conditions (including, but not limited to, Dilaudid) to cause the Veteran's death; iii. aided or assisted in the Veteran's death; OR iv. otherwise hastened the Veteran's death? (d.) Prior to death, the Veteran was service-connected for sinusitis, thoracolumbar spine degenerative disease with intervertebral disc syndrome (IVDS), sinus headaches, cervical spine IVDS with degenerative arthritis, right lower extremity radiculopathy associated with thoracolumbar spine disability, left ankle strain, tinnitus, peripheral neuropathy of the right ulnar nerve, non-allergic rhinitis, left ear disorder, recurrent bronchitis, liver hemangioma, and dermatitis. Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that any of his service-connected disabilities other than the thoracolumbar spine disability EITHER: i. contributed substantially or materially to the Veteran's death; ii. combined with service-connected OR non-service-connected disabilities to cause the Veteran's death; iii. aided or assisted in the Veteran's death; OR iv. otherwise hastened the Veteran's death? All opinions must include a complete rationale. The Board appreciates the time and effort it may take to answer these questions fully and compassionately for the surviving spouse's claim, and notes that failure to provide a clear and thorough explanation for any opinions may result in additional delays to obtain further clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.