Citation Nr: 1237787 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-30 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1945 to August 1946. He died in December 2008, and the appellant is his surviving widow. This appeal to the Board of Veterans' Appeals (Board) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2012, the appellant testified before the undersigned Veterans Law Judge of the Board at a videoconference hearing. A copy of the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The record reflects that the Veteran died in December 2008. At the time of death, he was service connected for Meniere's disease with labyrinthitis and a perforated eardrum and otitis media. 2. The Veteran's death certificate lists the immediate causes of death as sepsis and encephalopathy. Also listed as contributing conditions are hypertension, diabetes mellitus, neurogenic bladder, and Meniere's disease. 3. The Veteran's service connected Meniere's disease contributed to his death. CONCLUSION OF LAW The Veteran's service-connected Meniere's disease contributed substantially and materially to cause his death. 38 U.S.C.A. §§ 1310, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted. See, e.g., 38 C.F.R. § 20.1102 (2012) (harmless error). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, the Veteran, not VA, has the evidentiary burden of proof of showing there is a VCAA notice error in either timing or content and, moreover, that the error is unduly prejudicial, meaning outcome determinative of his claim). When a Veteran dies from a service-connected disability, the Secretary shall pay DIC for such Veteran's surviving spouse, children or parents. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. Id. A service-connected disability will be considered as 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). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Id. It is recognized there are primary causes of death that, 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 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, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Id. Here, the Veteran's death certificate lists the causes of death as sepsis and encephalopathy. The death certificate also lists contributing conditions of hypertension, diabetes mellitus, neurogenic bladder, and Meniere's disease. At the time of his death in December 2008, service connection had been established for Meniere's disease with labyrinthitis, rated at 60 percent, and a perforated eardrum and otitis media, rated as non-compensable. Also on account of his Meniere's disease with labyrinthitis, he had been receiving a total disability rating based on individual unemployability (TDIU), since March 7, 2000. The appellant-widow testified during her September 2012 videoconference hearing that the Veteran fell in March 2007, which she attributed to his Meniere's disease with labyrinthitis. She points out that the Veteran's death certificate lists the duration of encephalopathy as 18 months, which would make its onset near the time of the March 2007 fall, thereby contributing substantially or materially to his death. There are no medical opinions of record addressing whether the Veteran's service-connected Meniere's disease caused or contributed to his death. However, it is listed on the death certificate as a contributing factor, and a physician certified the Veteran's death certificate. Consequently, in reviewing the evidence of record, the Board finds that the Veteran's Meniere's disease contributed to his death. Accordingly, in view of the provisions of 38 C.F.R. § 3.102, and resolving all reasonable doubt in the appellant's favor, the Board finds that the evidence is sufficient to demonstrate that the Veteran's service-connected Meniere's disease was a contributing cause of his death. Accordingly, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs