Citation Nr: 22040166 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-15 049 DATE: July 13, 2022 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT 1. At the time of his death, the Veteran was service connected for leishmaniasis, which was not the principal or contributory cause of his death. 2. The Veteran's renal failure was not secondary to, or a symptom of, a service-connected disability, and a service-related disability was not the principal or contributory cause of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. § 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1952 to January 1954. Unfortunately, the Veteran died in September 2017 and the appellant is his surviving spouse. This matter is on appeal to the Board of Veterans' Appeals (Board) from a December 2017 rating decision. A hearing was held with the undersigned Veterans Law Judge in November 2021. The claim was subsequently remanded by the Board in March 2022 to obtain a new medical opinion considering newly submitted medical literature. The Board finds that the remand directives were substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that, while a docketing letter was not sent to the appellant's representative following the remand, an Informal Hearing Presentation was submitted to the Board from the representative in July 2022; thus, there are no due process concerns that would prevent adjudication at this juncture. The appellant contends that the Veteran's cause of death renal failure was due to his service-connected leishmaniasis. The death certificate lists renal failure as the cause of death in a natural manner. While there is no rating decision or codesheet of record reflecting service connection for leishmaniasis, there are letters in the file confirming the Veteran was receiving compensation for a service-connected disability rated at 10 percent disabling. As VA has conceded service connection for leishmaniasis in previous correspondence and decisions, the Board finds that the Veteran was indeed service connected for leishmaniasis at the time of his death. Pursuant to 38 U.S.C. § 1310, dependency and indemnity compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310 (a); 38 C.F.R. § 3.5 (a)(1). 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. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principal cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). The appellant submitted medical literature in January 2018 detailing studies done exploring the role of kidney involvement in leishmaniasis. A VA medical opinion was obtained in February 2018. The examiner considered the evidence of record, to include the medical literature. He opined that it was less likely than not that the leishmaniasis proximately caused the Veteran's death. He noted that diabetes and hypertension are well-known risk factors in the development of chronic kidney disease, which the Veteran had. Referencing the medical literature, he explained that studies are not conclusions of fact and "associations with" are not a cause. The medical records showed no evidence of any progression or ongoing treatment of the Veteran's leishmaniasis, and the examiner further stated he was unaware of any evidence-based medical literature that would provide evidence to support the appellant's claim. In March 2018, the appellant submitted additional medical literature to support her claim. Another VA medical opinion was obtained to consider the additional evidence. The April 2022 examiner reviewed the entire file, and specifically noted the March 2018 literature, as well as treatment for various medical conditions in the months leading up to the Veteran's death. The examiner similarly concluded that the Veteran's renal failure, which caused his death, was less likely than not related to and/or proximately due to his leishmaniasis. He explained that the Veteran was known to have hypertension, diabetes, and chronic kidney disease. Two of the main contributors to kidney disease are hypertension and diabetes. The Veteran had issues with elevated blood pressure, and his physician had been increasing the medication to control. The Veteran's cutaneous leishmanias affected his ankle only; as in most cases, it was self-limited and there were no recurrences after the first two years. The Veteran did not have, nor was he ever diagnosed with or suspected to have, visceral leishmaniasis (kala-azar). It must be noted that this is fatal without treatment. The Veteran would not have lived to 90 years of age with this disease. Leishmaniasis does not target the kidney, and there was no documented significant weight loss, chronic fevers, or anemia. In addition to the above evidence, the Board has considered the appellant's testimony and lay statements, as well as the medical records. The medical records do not contain any indication that leishmaniasis played a role in the Veteran's death, or even mention the condition. While the Board appreciates the appellant's testimony and respects her belief that the Veteran's renal disease was caused by his service-connected disability, she is not competent to reach such a complex medical determination. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In that regard, a medical opinion is necessary to determine whether the leishmaniasis was a principal or contributory cause of his death. The record contains two medical opinions from two different medical examiners that reviewed the evidence and medical literature and concluded that there was no causation. The Board finds the most recent opinion highly probative, as it considers all the medical evidence and provides a knowledgeable explanation of leishmaniasis and a logical rationale for why it did not play a role in the Veteran's death. Though the examiner does not specifically address the significance of the submitted medical literature, the entirety of the report makes clear that he considered the literature and did not afford it much, if any, weight. For the foregoing reasons, the weight of the evidence reflects that the Veteran's service-connected leishmaniasis was not the principal or contributory cause of death; that the renal failure that caused the Veteran's death was not acquired as secondary to, or as a symptom of, his service-connected disability; and a service-related disability was not the principal or contributory cause of death. Therefore, service connection for cause of death is not warranted. The Board is sympathic to the appellant's contentions and must render a decision which grants every benefit that can be supported in law while protecting the interests of the Government, 38 C.F.R. § 3.103 (a), but is, however, bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.105. Application of those laws and regulations to the facts of this case reflect that the evidence is neither evenly balanced nor approximately so with regard to whether service connection for cause of death is warranted. Rather, the evidence persuasively weighs against service connection for cause of death. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.