Citation Nr: 0812593 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-13 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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. § 1318. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from August 1944 until November 1945. He died on November [redacted], 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The appellant testified at a March 2008 videoconference hearing before the undersigned. A transcript of that proceeding is associated with the claims folder. Moreover, at that time, she submitted additional evidence accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration. Accordingly, appellate review may proceed at this time. Finally, the appellant's case was advanced on the docket due to her age via motion dated April 2008. 38 C.F.R. § 20.900(c) (2007) FINDINGS OF FACT 1. The veteran died on November [redacted], 2003; the death certificate listed the immediate cause of death as cardio- pulmonary arrest due to renal failure as a consequence of nephrogenic diabetes insipidus as a consequence of lithium therapy for psychosis. 2. At the time of the veteran's death, service connection was established for bipolar disorder. 3. The competent evidence demonstrates that the veteran's service-connected bipolar disorder was a contributory cause of death. 4. The claim for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310, 3.159, 3.312 (2007). 2. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. §§ 1318, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. I. Service Connection for Cause of Death Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To grant service connection for the cause of the veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In cases of service connection for the cause of death of the veteran, the first requirement of a current disability will always have been met, the current disability being the condition that caused the veteran to die; however, the last two requirements for a service-connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2007). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly 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) (2007). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2007). Medical evidence is required to establish a causal connection between service or a disability of service origin and the veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the 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). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Even in such cases, there may be a reasonable basis for holding that a service- connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). At the outset, the Board notes that the veteran's death certificate lists the immediate cause of death as cardio- pulmonary arrest due to renal failure as a consequence of nephrogenic diabetes insipidus as a consequence of lithium therapy for psychosis. It is noted that direct service connection has not been established for any cardiopulmonary disability or for diabetes. Moreover, the post-service medical evidence does not show any treatment or diagnoses referable the kidneys until 1987, when problems were noted in a record of the Bureau of Disability Determination. Cardio- pulmonary problems are not indicated until just before the veteran's death in 2003. As set forth above, a heart disorder and diabetes were initially demonstrated until decades after service. Further, there is no competent clinical opinion of record which relates the veteran's terminal cardiopulmonary arrest to active service. As such, a grant of direct service connection is not for application here. Additionally, as the evidence fails to show that cardiovascular-renal disease was manifested within the applicable presumptive period of one year following service, the chronic disease presumption under 38 C.F.R. §§ 3.307 and 3.309 is also eliminated as a basis for a grant of service connection. Based on the foregoing, a grant of direct service connection, to include on a presumptive basis, is not for application here. The Board will now consider the central claim at issue here, that of entitlement to service connection for the cause of the veteran's death. Indeed, this contention was expressed very clearly in an April 2005 communication and in testimony provided at the March 2008 videoconference hearing. As stated previously, a grant of service connection for the cause of the death of a veteran is warranted where the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. In the present case, he was service-connected for bipolar disorder at the time of his death. The appellant contends that the lithium which had been prescribed to treat that disability proximately caused the veteran's death. In support of the appellant's contention, it is acknowledged that the death certificate does include lithium therapy as one of the causal factors leading to the veteran's death. Moreover, the claims folder contains two competent opinions which also support a connection between the lithium therapy and the veteran's terminal cardiopulmonary arrest. Specifically, in a May 2005 letter, R. J. D., M.D. opined that the veteran's diabetes resulted from lithium use, and further stated: "it would appear that (the veteran's) death was ultimately due to complications from long term lithium use." Furthermore, in a March 2008 letter, S. R. H., D.O. concluded that the veteran had suffered from lithium toxicity-related renal failure. He stated that such toxicity was the primary reason that he had been treating the veteran. The above letters are found to be probative as they were offered by physicians who had personally treated the veteran. Indeed, Dr. S. R. H. treated the veteran extensively with regard to the lithium toxicity at issue. Moreover, no competent evidence of record refutes these opinions. Overall, the evidence is at least in equipoise as to whether the lithium treatment associated with the veteran's service- connected bipolar disorder was a contributory cause of death. Indeed, from the death certificate itself, along with the doctors' opinions noted above, it can be concluded that it is at least as likely as not that the lithium therapy (and hence the service-connected bipolar disorder) aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2007). Based on the above, a grant of service connection for the veteran's death is warranted here. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Entitlement to DIC Under the Provisions of 38 U.S.C. § 1318 DIC benefits are also payable under certain circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C.A. § 1318 would be paid "in the same manner as if the veteran's death were service connected." 38 U.S.C.A. § 1318(a). The Board's grant of service connection for the cause of the veteran's death under the provisions of 38 U.S.C.A, § 1310 already recognizes that the death of the veteran is from a service-connected disability (secondary to bipolar disorder). The United States Court of Appeals for Veterans Claims (Court) indicated that, only if an appellant's claim for service connection for the cause of the veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the veteran's death under 38 U.S.C. § 1310, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and this aspect of the appellant's claim is dismissed. III. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for the cause of the veteran's death is granted. A claim for DIC benefits under the provisions of 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs