Citation Nr: 18123944
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-34 392
DATE:	August 3, 2018
ORDER
Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied.
REMANDED
Entitlement to DIC based on service connection for cause of death is remanded.
FINDINGS OF FACT
1.  The Veteran died on May [redacted], 2013.
2.  The Appellant was married to the Veteran at the time of his death.
3.  At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD) with a 70-percent evaluation and an effective date of August 17, 2006, and he was in receipt of a total disability rating based on individual unemployability based on service-connected disabilities (TDIU) from August 17, 2006.
4.  The Veteran was not continuously rated as totally disabled due to his service-connected disabilities, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from service and for at least five years immediately preceding his death; nor would he have been in receipt of such compensation in either case but for clear and unmistakable error (CUE) in a prior decision, which has not been established.
5.  The Veteran was not a former prisoner of war (POW).
CONCLUSION OF LAW
The criteria for entitlement to dependency and indemnity compensation under 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 CONCLUSION
The Veteran served on active duty from September 1967 to September 1969.  The Appellant is the Veteran’s surviving spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision.
1. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318
Service connection was in effect during the Veteran’s lifetime for PTSD rated at 70 percent from August 17, 2006.  He was also in receipt of a TDIU, effective from August 17, 2006.
Benefits may be paid to a deceased veteran’s surviving spouse in the same manner as if the veteran’s death had been service-connected, even though the veteran died of non-service-connected causes, if the veteran’s death was not the result of his or her own willful misconduct and at the time of death he or she was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since a veteran’s release from active duty and for a period of not less than five years immediately preceding death; or was 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.  38 U.S.C. § 1318.
If a veteran did not meet the statutory duration requirements for a total disability rating at the time of death, the surviving spouse may prevail on a claim for benefits under 38 U.S.C. § 1318 by showing that the requirements would have been met but for clear and unmistakable error (CUE) in a previous decision, or by showing that service department records in existence at the time of a prior VA decision that were not previously considered by VA provide a basis for reopening a claim finally decided during the veteran’s lifetime and for rating the disability retroactively as totally disabling.  38 C.F.R. § 3.22(b).
Based on the evidence of record, the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met.  The Veteran did not meet the durational requirement for a total disability rating.  He was discharged from service in September 1969 and was rated as 100-percent disabled, effective August 17, 2006, pursuant to a TDIU that was awarded by a rating decision of July 2008.  The Veteran died in May 2013.  Thus, he was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death; nor was his disability rated totally disabling continuously since his release from active duty and for a period of not less than five years immediately preceding death.  The Veteran also was not a former POW.
The June 2008 rating decision that granted service connection for PTSD and the July 2008 rating decision that granted TDIU entitlement have become final.  38 U.S.C. § 7105.  A final decision can be revised on the basis of clear and unmistakable error.  38 C.F.R. § 3.105(a); Rudd v. Nicholson, 20 Vet. App. 296 (2006).  A motion for CUE must be plead with specificity.  38 C.F.R. § 20.1404(b); Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012).  The Appellant has not alleged clear and unmistakable error with respect to any final rating action of record.
Furthermore, there are no service department records which, being in existence at the time of a prior VA decision and not previously considered by VA, might provide a basis for reopening a finally decided claim and awarding a total rating retroactively for the requisite period.
The Board notes that DIC claims under § 1318 are no longer subject to a “hypothetical entitlement” analysis.  See Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008).  Under currently applicable law, DIC benefits under § 1318 must be adjudicated without consideration of arguments for hypothetical entitlement to benefits raised for the first time after a veteran’s death.  38 C.F.R. § 3.22(b).  The Appellant does not argue for such hypothetical entitlement in this case.
For the reasons discussed above, the Appellant is not entitled to DIC benefits under 38 U.S.C. § 1318.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND
1. Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for cause of death is remanded.
The Appellant, as the surviving spouse of the Veteran, filed an application for DIC benefits (VA Form 21-534) in February 2015.  A grant of service connection for the cause of a veteran’s death requires that a service-connected disability caused the death or substantially or materially contributed to it.  38 U.S.C. §§ 1310, 1312; 38 C.F.R. § 3.312.
A service-connected disability will be considered the principal (primary) cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related to it. See 38 C.F.R. § 3.312(b) (2015).  A service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided the production of death.  38 C.F.R. § 3.312(c)(1).  The debilitating effects of a service-connected disability must have made a veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death.  See Lathan v. Brown, 7 Vet. App. 359 (1995).
When the Veteran died on May [redacted], 2013, he was service-connected for PTSD and was in receipt of a TDIU.  According to the death certificate, the immediate cause of death (the final disease or condition resulting in death) was “cardiac arrest.”  The condition leading to cardiac arrest is listed as “pulmonary embolism.”  The Veteran was not service-connected for cardiac arrest or pulmonary embolism at the time of his passing.  Nonetheless, DIC entitlement may be shown if the requirements of service connection are met for the cause of death.
Generally, service connection will be granted if the evidence demonstrates (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected.  38 C.F.R. § 3.310(b).
There is a presumption of service connection for certain chronic diseases, including cardiovascular-renal disease, if the disease manifested in service or to a compensable degree within one year of discharge from service.  See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
The Veteran’s service in Republic of Vietnam is shown by his receipt of the Bronze Star Medal with “V” Device (First Class Oak Leaf Cluster) and the Purple Heart.  See DD Form 214.  A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed to an herbicide agent, unless affirmative evidence shows otherwise.  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a).  Based on such exposure, certain diseases, including ischemic heart disease, will be presumed to be service-connected, even though there is no record of the disease during service.  38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e).
A VA treatment record of April 2013 diagnosed pneumonia, acute exacerbation of chronic obstructive pulmonary disease (COPD), end stage lung disease, and tobacco use disorder.  The Veteran began smoking as a teenager.  See VA treatment record of August 2006.  A VA mental health evaluation record of September 2006 notes the Veteran’s complaint of becoming more nervous after having quit smoking a month earlier.  In April 2013, the Veteran was noted to have stopped smoking “a year ago.”  See VA treatment record of April 2013.
The Appellant submitted Dr. H. S.’s November 2016 letter, which states his opinion, based on a review of the Veteran’s claims file and a conversation with the Appellant, that “the Veteran’s tobacco abuse was more likely than not permanently aggravated by his PTSD and therefore, his PTSD and subsequent tobacco abuse more likely than not contributed both substantially and materially to the veteran’s cause of death.”
The Board finds the private doctor’s letter to be inadequate as a positive nexus opinion for lack of a rationale.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Dr. H. S. explains why he believes the Veteran’s PTSD aggravated the tobacco use disorder.  He gives no reason, however, for also finding that the tobacco use disorder caused a pulmonary embolism.  The doctor notes that pulmonary embolisms are typically caused by a blood clot and that, according to the American Heart Association, smoking is one of the major risk factors for blood clots, and many factors can lead to excessive blood clotting.  The opinion letter gives no basis for identifying the Veteran’s smoking as the likely cause of the pulmonary embolism that led to the cardiac arrest which caused the Veteran’s death.
The Appellant argues that the Veteran’s service-connected PTSD aggravated his tobacco use disorder, which in turn caused the pulmonary embolism and cardiac arrest that caused the Veteran’s death.  Service connection may not be granted for a death or disability that is caused by a veteran’s use of tobacco during service.  38 U.S.C. § 1103; 38 C.F.R. § 3.300(c).  This restriction does not preclude service connection for a tobacco-related disability that is caused or aggravated by a service-connected disability, such as PTSD.  See VA’s General Counsel Precedential Opinion VAOGCPREC 6-2003.  The Board will remand for a VA medical opinion as to the likelihood that the Veteran’s PTSD aggravated his tobacco use disorder and, further, that the tobacco use disorder caused a pulmonary embolism and/or cardiac arrest.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Veteran was presumptively exposed to an herbicide agent based on service in Vietnam.  Ischemic heart disease is one of the diseases subject to a presumption of service connection based on exposure to an herbicide agent.  Under VA regulations, ischemic heart disease includes, but is not limited to: acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina.  38 C.F.R. § 3.309(e).  In July 2006, the Veteran was diagnosed with atherosclerotic coronary artery disease (ASCAD).
The Board is not competent to find that the Veteran’s cardiac arrest was, or was not, an aspect of ischemic heart disease.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In this case, where the immediate cause of death is listed as cardiac arrest, a VA medical opinion is needed to address the likelihood that the Veteran had ischemic heart disease and whether ischemic heart disease caused death or substantially or materially contributed to it.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
The matter is REMANDED for the following action:
Obtain an opinion from an appropriate clinician regarding the following:
a) whether it is at least as likely as not that the Veteran’s tobacco used disorder was aggravated beyond its natural progression by service-connected PTSD;
b) whether it is at least as likely as not that tobacco use disorder caused the pulmonary embolism and/or cardiac arrest that caused the Veteran’s death;
c) whether it is at least as likely as not that the Veteran had ischemic heart disease, including consideration of the July 2006 diagnosis of atherosclerotic coronary artery disease (ASCAD); and
d) whether it is at least as likely as not that ischemic heart disease made the Veteran materially less capable of resisting the cause of death or had a material influence in accelerating death.
The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.  
 

A rationale must be provided for all opinions in the report.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner  shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Steven D. Najarian, Associate Counsel 

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