Citation Nr: 1017352 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 08-04 918 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1964 to February 1967, including service in the Republic of Vietnam. He died in January 2006. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 RO rating decision. Following the last RO adjudication, the appellant submitted additional evidence without a waiver of initial RO jurisdiction. Because the Board's decision below is fully favorable to the appellant, the matter need not be remanded to afford RO review of the new evidence. See 38 C.F.R. §§ 20.800; 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During his lifetime, the Veteran served on active duty in the Republic of Vietnam during the Vietnam era. 2. The Veteran died in January 2006. The Certificate of Death lists the immediate cause of death as hepato-pulmonary syndrome due to liver cirrhosis. The autopsy report lists coronary artery disease, a worsening cirrhotic picture with increased ascites and reduced pulmonary function, and an organized thrombus present in the right coronary venous graft as components in the likely ultimate cause of death, which was the recent extension of a remote myocardial infarction. 3. At the time of his death, service connection was in effect for anxiety; right below-the-knee amputation; chronic low back strain; a cervical spine disorder; residuals of a gunshot wound left foot; a right shoulder condition; an eye disorder; and occlusive arterial disease of the lower extremity with poor circulation. 4. The autopsy report lists an organized thrombus (present in the right coronary venous graft), which is related to a service-connected disability, as contributing to the ultimate cause of the Veteran's death, and the weight of the competent evidence is in relative equipoise on the question of whether the Veteran's liver and pulmonary disorders, which the autopsy report list as also contributing to the ultimate cause of the Veteran's death, are due to herbicide exposure during the Veteran's service in the Republic of Vietnam. 5. The grant of entitlement to service connection for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1310 renders moot the appellant's claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318. 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. §§ 1101, 1110, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.312, 3.313 (2009). 2. The appellant's claim of entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is moot. 38 U.S.C.A. §§ 1318, 7104 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.22, 20.101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). VCAA and its implementing regulations define VA's duties to notify and assist a claimant upon submission of a substantially complete application for benefits. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Here, the Board grants service connection for the cause of the Veteran's death, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duties to notify and assist is required. II. Analysis A. Cause of Death The appellant is contending that service connection is warranted for the cause of the Veteran's death. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either (1) the principal (primary) cause of death or (2) a contributory cause of death. To be considered a principal (primary) cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service- connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran's death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2003). Here, the Board finds that the by extending the appellant the benefit of the doubt, service connection is warranted for the cause of the Veteran's death. The Certificate of Death shows that the Veteran died on January [redacted], 2006, at the age of 59. The immediate cause of death is listed as hepato-pulmonary syndrome due to liver cirrhosis. In January 2006, an autopsy was performed. The autopsy report lists the primary diagnoses as atherosclerotic heart disease with thrombosis of the right coronary artery bypass graft (CABG), recent extension of remote myocardial infarction (MI), status post CABG; congestive heart failure; passive congestion of lungs; end-stage cryptogenic cirrhotic liver disease with ascites; and mixed hepatocellular carcinoma and cholangiocarcinoma confined to liver parenchyma. The autopsy report summarizes that the combination of coronary artery disease (CAD), a worsening cirrhotic picture with increased ascites and reduced pulmonary function, and the organized thrombus present in the right coronary venous graft were all components in the likely ultimate cause of death, which was the recent extension of a remote MI. During his lifetime, the Veteran was service-connected for several disorders related to wounds received during his service in the Republic of Vietnam, including a below the knee amputation right, and occlusive arterial disease of the lower extremities and poor circulation associated with below the knee amputation right. As the Veteran was service- connected for occlusive arterial disease of the lower extremities and poor circulation, which are related to the reason he underwent the right coronary artery bypass grafting, and which the autopsy report lists as contributing to the MI causing the Veteran's death, a service-connected disability is shown to be a contributing cause of his death. See 38 C.F.R. § 3.303(a) Moreover, the Veteran served in the Republic of Vietnam during his active service. Therefore, he is presumed to have been exposed to herbicides such as Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). In June 2007, a private physician, who had treated the Veteran during his lifetime, wrote a letter explaining that it was his professional opinion upon review of the Veteran's chart and post-mortem report, that more likely than not the Veteran's cirrhosis and eventual death were a result of Agent Orange exposure during his service in Vietnam from 1965-66. Similarly, in May 2008, a private oncology hematologist, who had attended the Veteran during his life, wrote that although the etiology of the Veteran's cirrhosis was pursued and not discovered, the Veteran was exposed to Agent Orange in Vietnam, which "certainly may have been etiologic." Finally, a private pulmonologist in December 2005 examined the Veteran and commented that the Veteran had significant environmental exposure during service, and whether some of the toxins may have induced some of the liver cirrhosis is questionable. In summary, the autopsy report lists worsening cirrhotic picture as contributing to the Veteran's death, and three private physicians have related the condition to the Veteran's Agent Orange exposure. These physicians' opinions in this regard are uncontroverted. Accordingly, the Board finds that the evidence is at least in a state of relative equipoise in demonstrating that service connection is warranted for the disorder. As the disorder contributed to the Veteran's death, service connection for the cause of the Veteran's death is also warranted on this basis. See id. For these reasons, the Board finds that service connection for the cause of the Veteran's death must be granted. B. § 1318 Benefits The appellant raised entitlement to DIC benefits under 38 U.S.C.A. § 1318 as an alternative theory of entitlement to service connection for the cause of the Veteran's death. In light of the grant of benefits described above, the Board concludes that this aspect of the appellant's claim is rendered moot. Entitlement under 38 C.F.R. § 1310 is the greater benefit and is granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1318, nor does any controversy remain. Accordingly, the appeal as to the claim of entitlement to DIC under 38 U.S.C.A. § 1318 is dismissed as moot. ORDER Service connection for the cause of the Veteran's death is granted. The appeal as to dependency and indemnity compensation under 38 U.S.C.A. § 1318 is dismissed as moot. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs