Citation Nr: A20005611 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 190328-7281 DATE: April 15, 2020 ORDER Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is denied. REMANDED Entitlement to service connection for cause of death is remanded. FINDING OF FACT The Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding his death, nor was he rated totally disabled continuously after his release from active duty and for at least five years immediately preceding his death, nor was he a former prisoner of war (POW). CONCLUSION OF LAW The criteria for entitlement to DIC benefits 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 FINDING AND CONCLUSION These matters are before the Board of Veterans’ Appeals (Board) on appeal from the January 2019 VA agency of original jurisdiction (AOJ) rating decision. The Veteran had active service from April 2002 to September 2006. Tragically, he passed away in August 2018, when he fell while mountain hiking. The Appellant is the Veteran’s spouse. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), known as the Appeals Modernization Act (AMA), that created a new framework for veterans dissatisfied with VA decisions to seek review effective February 19, 2019. In October 2018, the Appellant applied for service connection for the Veteran’s cause of death and DIC benefits under 38 U.S.C. § 1318. In January 2019, the AOJ issued a rating decision denying her claims. In March 2019, the Appellant filed a VA Form 10182 and selected the AMA review hearing lane. In October 2019, she testified at a videoconference hearing before the undersigned Veterans Law Judge. The transcript of the hearing has been associated with the claims file. DIC benefits under § 1318 are awarded to the surviving spouse of a deceased veteran if the evidence shows that the veteran’s disabilities were continuously rated as totally disabling for a period of 10 or more years immediately preceding his/her death, or that the veteran’s disabilities were continuously rated as totally disabling for a period of not less than five years from the date of the veteran’s discharge and up to his/her death, or that the veteran was a former POW, and his/her disabilities were continuously rated as totally disabling for a period of not less than one year immediately preceding his/her death. Here, the Veteran was rated totally disabled effective February 2017, i.e., starting about a year and a half before his passing. Prior to that, the Veteran’s combined rating was 30 percent effective December 2011. Therefore, because the Veteran’s military personnel records demonstrate that he was not a POW, the Appellant is not entitled to DIC benefits under 38 U.S.C. § 1318. In reaching this conclusion, the Board is mindful that the Veteran’s claim for service connection for his arrhythmia is still pending. However, the Veteran applied for service connection for his arrhythmia in December 2011. Accordingly, even if that claim is granted, and the rating for his arrhythmia is sufficient to bring his combined rating to 100 percent effective December 2011, such a scenario would not alter the outcome of the Board’s DIC analysis. This is so because the period from December 2011 to the Veteran’s August 2018 death is less than 10 years, and it did not begin right after his September 2006 discharge. Therefore, even if the Veteran’s claim for service connection for arrhythmia is granted, the Appellant would not be entitled to DIC benefits. Since the evidence is against finding that she is or could be entitled to DIC benefits, the doctrine of the benefits of the doubt is not for application, and her DIC claim is denied. REASONS FOR REMAND A veteran’s death is considered as being due to a service-connected disability when the evidence establishes that his/her service-connected disability was either the principal or a contributory cause of death, see 38 C.F.R. § 3.312(b), (c), based on an exercise of sound judgment, without recourse to speculation and after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including autopsy reports, see 38 C.F.R. § 3.312(a). A service-connected disability is deemed the principal, i.e., 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 thereto. See 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. See 38 C.F.R. § 3.312(c). In order for a service-connected disability to be deemed a contributory cause of a veteran’s death, it must be shown that it contributed substantially or materially, combined to cause death, and aided or lent assistance to the production of death. It is not sufficient to show that it just “shared” in producing death: it must be shown that there was a causal connection. See 38 C.F.R. § 3.312(c)(1); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Here, the Veteran passed away in August 2018 when he was hiking a mountain and fell. During the Appellant’s October 2019 hearing, the Appellant clarified that she and the Veteran were separated by the time he died. In July 2018, the Veteran reported that he attributed his marital problems to his and the Appellant’s mental disorders. The Veteran also reported that he and the Appellant often “clashed” over how to raise her children, i.e., his stepchildren. The Veteran further stated that he was “anxious” and “worried about the direction [the Appellant was] going in” after she left him and began living in a different city, while the Veteran continued to reside in their marital home with his stepson, i.e., the Appellant’s biological son. Relevant here, the Veteran has been service-connected for posttraumatic stress disorder (PTSD) effective December 2011, and his PTSD was rated at 70 percent from February 2017 to the date of his death. During his March 2017 VA examination, a VA examiner found that the Veteran’s PTSD manifested by, inter alia, anxiety, depressed mood, impaired impulse control, and impaired judgment. Further, in February 2017, the Veteran applied for service connection for residuals of a traumatic brain injury (TBI). In April 2017, the RO issued a rating decision denying service connection for residuals of TBI without affording the Veteran a VA examination on the grounds that “the medical evidence of record fails to show that this disability has been clinically diagnosed.” However, the Veteran’s July 2013 VA examiner who evaluated the Veteran in connection with his PTSD claim observed that, “[a]lthough the Veteran [did] not have a diagnosis of TBI, according to self and collateral reports, he ha[d] significant problems with short-term and procedural memory,” which the VA examiner qualified as potential residuals of TBI. Further, the Veteran’s March 2018 medical treatment record generated less than half a year prior to his death could be reasonably construed as suggesting that the Veteran had been diagnosed with residuals of TBI at some point in time, given that his treating physician listed TBI among his “history of present illness” and observed that the physician “[s]uspect[ed that] at least some component [of the Veteran’s TBI was] related to [the Veteran’s] history . . . in the military.” During the October 2019 hearing, the Appellant testified that the Veteran was well aware of the risks of hiking in low-light conditions, especially hiking the particular mountain where his fall resulted in his death: because he was frequently hiking that mountain and knew it very well. The Appellant also testified that, a week prior to his death, the Veteran called each of her stepchildren to apologize for his “military way” of interacting and to ask for their forgiveness. She further testified that the Veteran had remained frustrated after he lost his job at VA and began working at Home Depot, where the Veteran’s supervisor was treating him in a disrespectful manner. The Appellant opined that the Veteran might have intentionally or recklessly endangered his life by hiking the mountain during evening hours, and that the Veteran’s fatal fall was either caused by his TBI, or the result of his PTSD. The Board is mindful that the Veteran denied suicidal ideations or suicidal plans during his March 2017 VA examination conducted in connection with his PTSD, and his mental health treatment records reflect his consistent denial of suicidal ideations. However, based on the Appellant’s testimony, the Board concludes that the record could reasonably be construed as suggesting that the Veteran’s PTSD and/or TBI might have been contributory causes of his death. The Veterans Claims Assistance Act of 2000 and implementing regulations obligate VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The latter means that VA will, inter alia, obtain a medical opinion when necessary to make a decision on a claim. See 38 C.F. R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Since the record suggests that the Veteran’s PTSD and/or TBI might have been contributory causes of his death, the Appellant is entitled to a medical opinion on these issues. Accordingly, while the Board regrets further delay, a remand is required before a decision may be rendered as to the Appellant’s claims for service connection for the Veteran’s cause of death. The matters are REMANDED for the following action: 1. Forward the Veteran’s claim file for an examination by an appropriate VA clinician. a. The clinician is requested to carefully review the claim file, to include this Remand order, and opine whether it is as likely as not (a 50 percent probability or higher) that the Veteran suffered from residuals of TBI during the period on appeal immediately preceding his death. b. In the event the VA clinician determines that it is as likely as not that the Veteran suffered from residuals of TBI during the period on appeal immediately preceding his death, the VA clinician is requested to opine whether it is as likely as not (a 50 percent probability or higher) that the Veteran’s TBI was a contributory cause of his death in the sense that his TBI contributed substantially or materially to the Veteran’s death, or aided or lent assistance to the production of his death. c. Regardless of the VA clinician’s findings as to the Veteran’s TBI, the VA clinician is requested to opine whether it is as likely as not (a 50 percent probability or higher) that the Veteran’s PTSD was a contributory cause of his death in the sense that his PTSD contributed substantially or materially to the Veteran’s death, or aided or lent assistance to the production of his death. 2. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the Appellant’s claim cannot be provided without resorting to speculation, the VA clinician is requested to provide an explanation as to why this is so and to clarify what additional development would permit the requested opinion to be rendered. 3. After completing the foregoing and any other development necessary, adjudicate the Appellant’s claim for service connection for the Veteran’s cause of death. 4. Notify the Appellant and her representative that her claim for service connection for the Veteran’s cause of death will not be automatically returned to the Board, and the Appellant’s appropriate action would be required if she desires further Board review on the grounds that her claim has not been not granted in full. See 38 C.F.R. § 3.2502 (under the AMA framework, “upon . . . remand [of a claim] by the Board . . . , the [AOJ] retains jurisdiction of the claim”). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan 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.