Citation Nr: 22032016 Decision Date: 06/01/22 Archive Date: 06/01/22 DOCKET NO. 17-64 120 DATE: June 1, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in April 2017. The primary cause of death is listed as cardiopulmonary arrest and the underlying causes of death are listed as acute encephalopathy and end stage vascular dementia. 2. At the time of death, the Veteran was not service connected for any disabilities. 3. The competent and credible evidence of record does not show that the Veteran's cardiopulmonary arrest, encephalopathy, or end stage vascular dementia were related to his military service. 4. No disability traceable to military service caused or contributed to the Veteran's cause of death. 5. The Veteran, who was not a prisoner of war, died more than 30 years after discharge from service and was not rated totally disabled due to service-connected disabilities for 10 continuous years immediately preceding death. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.312. 2. The elements for establishing entitlement to DIC benefits pursuant to the provisions of 38 U.S.C. § 1318 have not been 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 in the United States Army from September 1968 to April 1970. The Veteran died in April 2017, and the Appellant is his surviving spouse. The Appellant testified at a November 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for the cause of the Veteran's death is denied. 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. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, 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. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent 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. 38 C.F.R. § 3.312(c)(1); see Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Veteran was not service connected for any disability at the time of his death. The Veteran died in April 2017 from cardiopulmonary arrest; underlying causes of death are listed as acute encephalopathy and end state vascular dementia. The service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of an acquired psychiatric disorder, treatment of injuries sustained from a physical altercation, or a heart disorder. Specifically, on the March 1970 separation report of medical history, the Veteran did not report any injuries, including to the teeth or jaw. An October 2015 VA treatment record shows a positive screening of the Veteran for posttraumatic stress disorder (PTSD). And a November 2015 VA treatment record shows the Veteran is diagnosed with PTSD. In an October 2015 statement, the Veteran's sister stated she recalls the Veteran being the victim of a battery during bootcamp that has left him with missing front teeth. She stated that the Veteran had to receive medical treatment, to include dental treatment with an upper dental plate. In an October 2015 statement, the Veteran's wife recalls his parents recollecting the Veteran being the victim of a battery during bootcamp that required him to repeat bootcamp training. In a November 2015 VA treatment record, the Veteran is diagnosed with dementia. At the November 2021 hearing, the Appellant confirmed that the Veteran served in Korea, and not in the Republic of Vietnam. Board Hearing Transcript (T.) at 3. The Appellant recounted the Veteran's telling of an in-service battery during bootcamp resulting in him repeating bootcamp training. T. at 3-4. She stated the Veteran began to have neurological symptoms such as forgetfulness, paranoia, and suspicion. T. at 5. She stated the Veteran sought treatment in 2010. Id. During this treatment, she testified the Veteran was diagnosed with PTSD in 2015. T. at 6, 11. She also described the Veteran's behavior related to his diagnosis of dementia. T. at 7. Upon review of the record, the Board finds that service connection is not warranted for the Veteran's cardiopulmonary arrest, acute encephalopathy, or end state vascular dementia. The medical evidence does not show that the Veteran's cardiac disorder, encephalopathy, or dementia manifested to any degree or was diagnosed during the Veteran's active-duty service. The Board notes that STRs are silent for any complaints or treatment of these disorders. Further, it is uncontroverted that the diseases that brought about the Veteran's death were not present until many years after service. Furthermore, the Appellant asserts that the Veteran's PTSD led to the development of his dementia. However, the Veteran's STRs do not document the reported stressor, an in-service battery during bootcamp, or any injuries that might have resulted from such event. Also, the Veteran was not diagnosed with PTSD until 2015, over 40 years after separation from service. Regarding the lay evidence of record, the Board acknowledges the Appellant's sincere belief that the Veteran's cause of death was etiologically related to his military service. However, her statements are not competent evidence in the matter. It is neither argued nor shown that she is qualified through specialized education, training, or experience to offer an opinion on the question of whether his death was related to service, or to any incident therein. Laypersons are competent to provide opinions on some medical issues, but the etiology of the Veteran's cause of death falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, her lay assertions that the Veteran's death is related to his military service have no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board thus finds that there is no competent evidence of an etiological link between the Veteran's service and cardiopulmonary arrest, acute encephalopathy, or end state vascular dementia that brough about his death. Here, aside from the Appellant's lay assertions, there is simply no suggestion in the medical evidence of a causal connection between the Veteran's cardiopulmonary arrest, acute encephalopathy, and end state vascular dementia and the Veteran's active service. Accordingly, the Board concludes that the evidence persuasively weighs against the claim of entitlement to service connection for the cause of the Veteran's death. As such, the benefit of the doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. If the veteran's death is not determined to be service connected, a surviving spouse may still be entitled to DIC benefits. Pursuant to 38 U.S.C. § 1318(a), benefits are payable to the surviving spouse of a deceased veteran in the same manner as if the death were service connected under certain circumstances. A qualifying veteran for the purposes of this provision is a veteran who died not as a result of his own willful misconduct, and who either was in receipt of, or entitled to receive, compensation at the time of death for service-connected disability rated as totally disabling, if the service-connected disability was rated as totally disabling for 10 or more years immediately preceding death, or if continuously rated as totally disabling for at least 5 years after the Veteran's separation from active service. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22. A qualifying veteran also includes a former prisoner of war who died after September 30, 1999, with a service-connected disability rated totally disabling for not less than one year immediately preceding death. Id. The total rating may be schedular or based on unemployability. 38 C.F.R. § 3.22(c). In this case, prior to his death, the Veteran was not service connected for any disabilities. As such, the Board finds that the Veteran was not "in receipt of" compensation for a service-connected disability rated as totally disabling for 10 or more years immediately preceding death. Further, the Board finds that the Veteran was not "entitled to receive" compensation for a service-connected disability rated as totally disabling for 10 or more years immediately preceding death. He was not a former prisoner of war. Accordingly, the Appellant does not qualify for DIC benefits under 38 U.S.C. § 1318. In essence, the facts of this case are not in dispute and the law is dispositive. For all the foregoing reasons, the Board must conclude that the Appellant has failed to state a claim upon which relief may be granted and, as a matter of law, her claim for DIC benefits under the provisions of 38 U.S.C. § 1318 must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, Associate 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.