Citation Nr: 18160375
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-28 896
DATE:	December 26, 2018
ORDER
Service connection for the cause of the Veteran’s death is denied.
Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. § 1318 is denied.
FINDINGS OF FACT
1. The Veteran’s death certificate shows he died in October 2012, at the age of 81. Cerebrovascular accident (CVA) and pneumonia were listed as the immediate causes of death.
2. At the time of his death, the Veteran was service-connected for wound, penetrating, right lower back, rated at 20 percent disabling; and wound, right thigh, slight, rated as noncompensable.  At the time of his death, he was in receipt of a 20 percent combined evaluation award.
3. The cause of the Veteran’s death has not been shown to be related to his service-connected disabilities.
4. The Veteran was not a former prisoner of war (POW) and he was not in receipt, or entitled to receive, compensation at the 100 percent rate due to service-connected disability for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death.
CONCLUSIONS OF LAW
1. The requirements for 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, 3.159, 3.303, 3.312.
2. The criteria for DIC benefits pursuant to 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22, 20.1106.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1952 to October 1953. He died in October 2012, and the Appellant is his surviving spouse.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 
The Appellant had requested the opportunity to appear at a hearing before a Veterans Law Judge and such a hearing was scheduled for October 2017. She did not appear for that hearing and did not offer good cause for her failure to appear. As such, the Board deems that the Appellant’s request for a hearing was withdrawn. 
1. Entitlement to service connection for the cause of the Veteran’s death
The Appellant contends that the Veteran’s death was related to his service-connected disabilities.
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence 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 where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, singularly 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 one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312 (c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312 (c)(4).
The October 2012 death certificate establishes that the cause of the Veteran’s death was a CVA and pneumonia. 
At the time of the Veteran’s death, he was service connected for wound, penetrating, right lower back, rated at 20 percent disabling; and wound, right thigh, slight, rated as noncompensable.
The Veteran’s service treatment records do not contain any findings of a CVA or lung disorder.  The Veteran’s separation examination in October 1953 indicate “normal” results for “lungs and chest,” and “vascular system.”
The Board finds that the Appellant’s claim for entitlement to the cause of the Veteran’s death must be denied.  
The Board has considered the statements made by Appellant, that the Veteran’s service-connected disabilities caused or contributed to his death. However, the record does not indicate that the Appellant has the specialized knowledge to opine as to the cause of the Veteran’s death. This is because the etiology of a CVA and pneumonia is a complex medical decision that requires expertise to determine. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007), Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). 
Therefore, as the medical evidence of record does not contain a link between the Veteran’s service-connected disabilities of a lower back and right thigh wound to the CVA and pneumonia that led to his death, the Board finds that the Veteran’s service-connected disabilities did not cause or contribute to his death.
Additionally, as the Veteran’s service treatment records are silent for any symptoms of or signs for a CVA or pneumonia, the preponderance of the evidence is against a finding that the Veteran’s causes of death were due to his service.
While the Board is sympathetic to the Appellant’s contentions, in the final analysis, the preponderance of the evidence is against her claim. As such, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Appellant’s claim of entitlement to service connection for the cause of the Veteran’s death must be denied.
2. Entitlement to DIC benefits pursuant to 38 U.S.C. § 1318
The Appellant contends that she is entitled to DIC benefits pursuant to 38 U.S.C. § 1318.
VA death benefits may be paid to a deceased Veteran’s surviving spouse or children in the same manner as if the veteran’s death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased Veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran’s discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318 (b); 38 C.F.R. § 3.22 (a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). 
For purposes of the statute and regulation, “entitled to receive” includes a situation in which the Veteran would have received total disability compensation at the time of death but for clear and unmistakable error in a decision on a claim filed during the Veteran’s lifetime. 38 C.F.R. § 3.22(b)(1).
In the present case, the Veteran was discharged from service in October 1953. At the time of his death he had been awarded service connection for wound, penetrating, right lower back, rated at 20 percent disabling from October 6, 1953; and wound, right thigh, slight, rated as noncompensable from October 6, 1953. His combined disability rating was 20 percent from October 6, 1953. 
The Veteran was not service-connected for any other disabilities during his lifetime. Furthermore, clear and unmistakable error has not been found nor alleged regarding any prior VA rating decision. 
The evidence of record does not show that the Veteran was continuously rated totally disabled (either schedular or based on unemployability) for a period of at least 10 years immediately preceding his death, nor was he continuously rated totally disabled since his release from active duty for a period of not less than five years after his discharge from service. Also, the evidence does not show that he was a former POW. Therefore, the criteria for DIC benefits under 38 U.S.C. § 1318 are not met.
The Board is sympathetic to the Appellant’s arguments, nevertheless, the Board is bound by the laws and regulations that apply to Veterans’ claims. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). Although the Board is required to “render a decision which grants every benefit that can be supported in law,” there is no basis in law to grant the DIC claim being decided herein. 38 C.F.R. § 3.103 (a). For the foregoing reasons, the preponderance of the evidence is against the claim for DIC benefits under 38 U.S.C. § 1318. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
M. Donohue
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Morrad, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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