Citation Nr: 22016387 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-55 933A DATE: March 22, 2022 ORDER Service connection for the cause of the Veteran's death is denied. Dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. An August 2016 autopsy report shows the causes of death as acute ventricular dysrhythmia, pulmonary fat emboli, multiple blunt force trauma, and emphysema, with the manner of death being an accident. The signing forensic pathologist concluded the cause of death was pulmonary fat emboli due to multiple blunt force injures. No other conditions were listed as contributing to his death. 2. At the time of his death, the Veteran was service-connected for a lumbar spine disability, a bilateral knee disability, a bilateral hip disability, a left ankle disability, residuals of a gunshot wound of the right patella, bilateral hearing loss, bilateral tinnitus, and a scar. 3. The evidence of record is against finding that any service-connected disability caused or contributed to the cause of his death. 4. The Veteran was not evaluated as totally disabled as a result of his service-connected disabilities for 10 continuous years immediately preceding death; was not rated as totally disabled continuously for a period of no less than five years from the date of his discharge from active duty; and was not shown to be a former prisoner of war. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The criteria for DIC under 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1969, which included service in the Republic of Vietnam. He was awarded a Bronze Star medal and a Purple Heart for his service. Unfortunately, he died in August 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Cause of Death Compensation may be awarded for the cause of a veteran's death where the evidence shows that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312(c)(1). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or is otherwise etiologically related to service. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. A service-connected disability will be considered as the contributory cause of death when the disability contributed substantially or materially to death, combined to cause death, or aided assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, with debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The appellant seeks entitlement to service connection for the cause of the Veteran's death. The appellant asserted that the Veteran was in receipt of a temporary 100 percent rating due to his various disabilities. She asserted that although the Veteran died in an auto accident, he lived long enough to die of a heart condition related to military service. She asserted that his service-connected disabilities and the severity of those disabilities alone contributed to his cause of death as per the accident and coroner's reports. As such, she should have been awarded DIC benefits as of November 7, 2016. See NOD (April 2017). The Veteran passed away in August 2016, more than 50 years after service discharge. The October 2016 death certificate noted the Veteran's immediate cause of death was still pending autopsy. An April 2017 autopsy report listed the causes of death as acute ventricular dysrhythmia, pulmonary fat emboli, multiple blunt force trauma, and emphysema. The corner clarified the manner of death was an accident and opined the cause of death was pulmonary fat emboli due to multiple blunt force injuries. As such, the question that remains before the Board is whether a previously non-service-connected disability, at least one of the Veteran's causes of death (acute ventricular dysrhythmia, pulmonary fat emboli, multiple blunt force trauma or emphysema), was in fact incurred in or is otherwise etiologically related service. Service treatment records (STRs) are silent for any complaints or treatment related to difficulty with heart rhythm/beat or breathing or any other symptomatology related to the heart, lungs, or body generally. Enlistment examination showed a blood pressure reading of 138/84, and the Veteran was noted to have normal heart, lungs, chest, vascular, and musculoskeletal systems. August 1969 separation examination showed a blood pressure reading of 120/70. It was also noted that he had normal heart, lungs, chest, vascular, and musculoskeletal systems. See Military Personnel Record (January 2017). Post-service, VA medical treatment records (MTRs) contain a May 2012 examination, which showed the Veteran's heart was normal with no murmurs, rubs or gallops. A January 2015 myocardial perfusion scan was normal without evidence for ischemia or scaring. Left ventricular function was noted as normal. See CAPRI (February 2017). In November 2017, VA obtained a medical opinion (VAMO) to address whether the Veteran's causes of death were etiologically related to service. The November 2017 VAMO shows that examiner conducted a thorough review of all materials in the claims file, including STRs and VA MTRs. The examiner opined it was less likely as not that the Veteran's service-connected conditions contributed to his death materially or substantially or that they caused/resulted in debilitating effects and general impairment of health to an extent that would render the Veteran less capable of resisting the effects of other disease or injury primarily causing death. The rationale was that the Veteran's death was caused by multiple blunt traumas causing sudden death due to pulmonary fat emboli. The death was caused by a severe, high impact, a tragic traffic head-on collision. The examiner also opined that it was less likely than not that the Veteran had ischemic heart disease (IHD). The rationale was that the autopsy showed "CORONARY ARTERY: No atherosclerotic stenoses"; without stenoses of any kind, it was not possible to have IHD and therefore it was less likely as not that he had IHD. The examiner concluded by highlighting evidence in support of the opinion. Specifically, the examiner noted STRs show the Veteran experienced gunshot wounds to his left tibia and fibula and the right patella areas. Those conditions were not in the same, or even nearby, anatomic areas, to the areas fractured in the accident (which were caused by severe, high velocity/force collision). Therefore, there was no possible connection, and it was less likely as not [that his service-connected conditions] related [to his cause of death]. STRs contained two normal blood pressure readings; therefore, there was insufficient evidence of hypertension, if later diagnosed. At autopsy, his left ventricle wall thickness was increased, at 1.5 cm, which could be caused by valvular disease, hypertension, and others. There was no evidence that it contributed in any way to the accident. The STRs less likely as not reveal an[y] other treatment or diagnosis that was at least as likely as not contributory to death. Based on the foregoing, the Board concludes the Veteran's death was less likely than not caused by or etiologically related to his active service. There is no evidence that the medical conditions that caused or contributed to the Veteran's death, including acute ventricular dysrhythmia, pulmonary fat emboli, multiple blunt force trauma or emphysema, had their onset during service or within one year after separation from service. Additionally, the November 2017 VA medical examiner concluded the Veteran's death, was less likely than not etiologically related to service. In doing so, the examiner directly addressed the appellant's assertions. First, regarding the asserted non-service-connected heart condition (acute ventricular dysrhythmia), the examiner explained it was less likely than not that the Veteran had IHD because the autopsy showed "CORONARY ARTERY: No atherosclerotic stenoses"; without stenoses of any kind, it was not possible to have IHD and therefore it was less likely as not that he had IHD. Second, regarding the appellant's assertion that the Veteran's service-connected disabilities contributed to his cause of death, the examiner opined it was less likely as not that the Veteran's service-connected conditions contributed to his death materially or substantially or that they caused/resulted in debilitating effects and general impairment of health to an extent that would render the Veteran less capable of resisting the effects of other disease or injury primarily causing death. The Veteran's death was caused by multiple blunt traumas causing sudden death due to pulmonary fat emboli due to a severe, high impact, a tragic traffic head-on collision. To that end, the Board notes STRs were silent for the conditions that caused the death of the Veteran and there was no evidence of a chronic condition at separation from service. Post-service records, namely, the January 2015 myocardial perfusion scan, was normal without evidence for ischemia or scaring. Left ventricular function was noted as normal. See CAPRI (February 2017). There was no indication of a lung disease or bodily traumas. The Board appreciates that the appellant sincerely believes the Veteran's death was related to his active service; however, the appellant has not demonstrated that she has any medical knowledge or training in determining the cause of person's death. In other words, she is a layperson, not a medical expert. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives greater weight to the November 2017 VAMO. The opinion was prepared by a trained medical professional after review of the relevant medical history and is supported by a complete rationale. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the criteria for service connection for the cause of the Veteran's death have not been met, and the claim is denied. Entitlement to DIC under 38 U.S.C. § 1318 A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the veteran's death was not the result of his own willful misconduct and, at the time of death, the veteran was receiving, or entitled to receive, compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for a period of at least five years immediately preceding death; or, (3) 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 prisoner of war who died after September 30, 1999. See 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The appellant seeks DIC benefits under 38 U.S.C. § 1318 on the basis that the Veteran was in receipt of a 100 percent combined evaluation at the time of his death. See NOD (April 2017). The Veteran was released from active duty in August 1969. At the time of his death in August 2016, he had several service-connected disabilities, involving his back and lower extremities, hearing loss, and tinnitus. The record shows he was in receipt of a 100 percent combined evaluation since August 19, 2009. Military personal records do not indicate he was former prisoner of war. Based on the foregoing, the Board concludes, as a matter of law, the criteria for entitlement to DIC under 38 U.S.C. § 1318 is not warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran was not rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; was not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death; and has not been shown to be a former prisoner of war. Thus, the statutory criteria under 38 U.S.C. § 1318 have not been met. Accordingly, the criteria for DIC under 38 U.S.C. § 1318 have not been met, and the claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.