Citation Nr: 1736682	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  15-23 069	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1. Entitlement to service connection for the cause of the Veteran's death. 

2.  Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318.


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel






INTRODUCTION

The Veteran served on active duty from August 1942 to October 1945.  The Veteran died in October 2012.  The Appellant is his surviving spouse. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.  The case was later transferred to the New York, New York, Regional Office (RO).

The issues were previously before the Board in December 2015 and remanded for further development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

At the time of his death, the Veteran was not in receipt of, nor entitled to receive, compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding death or for a period of 5 or more years immediately following discharge from service; he was not a former prisoner of war (POW).



CONCLUSION OF LAW

The legal requirements for establishing entitlement to DIC under 38 U.S.C.A. 
§  1318  are not met.  38 U.S.C.A. §  1318  (West 2014); 38 C.F.R. § 3.22  (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Benefits may be paid to a deceased Veteran's surviving spouse and/or children in the same manner as if death was service-connected when the death was not caused by the Veteran's own willful misconduct, and at the time of death the Veteran was in receipt of, or entitled to receive, compensation for service-connected disability that was continuously rated totally disabling by a schedular or unemployability rating for a period of 10 or more years immediately preceding death, or was continuously rated totally disabling by a schedular or unemployability rating from the date of the Veteran's discharge or release from active duty for a period of not less than 5 years immediately preceding death, or was rated 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 (POW) and died after September 30, 1999. 
38 U.S.C.A. §  1318. 

The critical facts in this matter are not in dispute.  The Veteran was not an ex-POW.  His service-connected disability (bilateral hearing loss) was rated at 100 percent from May 30, 2006.  Since he died in October 2012, he had received compensation based on a 100 percent disabling rating for less than 10 years prior to his death, and had not been continuously rated totally disabled since his discharge from service in October 1945.  

Thus, the legal criteria for DIC benefits under 38 U.S.C.A. §  1318  are not met, and the Appellant's claim for this benefit must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 
ORDER

 Entitlement to DIC under 38 U.S.C.A. §  1318  is denied.


REMAND

The Appellant additionally seeks service connection for the cause of the Veteran's death.  Upon review of the claim file, the Board finds that additional development is needed on this issue.

In this case, the Veteran was service-connected for bilateral hearing loss disability and in receipt of a 100 percent disability rating at the time of his death effective from May 2006.  On the Veteran's death certificate, the immediate cause of death was listed as heart failure.  Spinal stenosis, pneumonia, and arthritis were listed as other significant conditions contributing to death, but not related to the immediate cause of death.  

The Appellant contends, through statements submitted by her daughter, that the Veteran's service-connected bilateral hearing loss disability caused him balance issues, which caused him to suffer a fall resulting in brain surgery and many side-effects that contributed to his death.  She asserts that the accident caused exacerbated back and neck pains of such severity making it difficult for him to swallow, eat, cough, sneeze, and an inability to walk.  She further contends that the pain was so intense he was unable to go to the gym or participate in physical therapy.  She argues that as a result, his health deteriorated immensely and his quality of life greatly declined, which ultimately led to his death from heart failure.  See March 2015 and July 2015 statements. 

Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death.  See 38 C.F.R. § 3.312 (a) (2016).  For a service-connected disability to be the principal cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be etiologically related.  See 38 C.F.R. 
§ 3.312 (b).  For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death.  It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection.  See 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.  See  38 C.F.R. § 3.312 (c)(1); Lathan v. Brown, 7 Vet. App. 359   (1995).

To date, no VA medical opinion regarding the cause of the Veteran's death has been obtained.  Generally, in a cause of death claim, VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit."  See De La Rosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); 38 U.S.C.A. § 5103A (a).  A VA medical opinion is needed in this case to ascertain the relationship, if any, between the Veteran's cause of death and his service-connected bilateral hearing loss.  

Accordingly, this matter is hereby is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.   Obtain a medical opinion from a VA physician with appropriate expertise.  The electronic record must be forwarded to the physician for review and the physician should indicate that such review took place prior to providing the requested opinion.  After review, the VA physician should address the following:

 a) Is it at least as likely as not (i.e., probability of at least 50 percent), that any principal or contributory cause of the Veteran's death had its onset during, or is otherwise related to an injury, disease, or event that occurred during his active military service.

 b) Is it at least as likely as not that any principal or contributory cause of the Veteran's death was related to his service-connected bilateral hearing loss disability.  In providing this response, the examiner should address the Appellant's assertions that bilateral hearing loss caused the Veteran balance issues, which resulted in a fall requiring brain surgery.  The Appellant further asserts that this injury resulted in many side-effects that contributed to the Veteran's death, including back pain of such severity causing his physical health to deteriorate, which ultimately led to his death from heart failure.

 c) Is it at least as likely as not that the Veteran's service-connected bilateral hearing loss caused, or contributed substantially or materially, combined, aided or lent assistance to cause his death.  The examiner should note that 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.  

The examiner must provide a complete rationale for all opinions expressed.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  

2.  The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand.  If a report is deficient in any manner, the RO must implement corrective procedures.

If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures.  The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment.  The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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