Citation Nr: 1313779	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  09-06 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant-Widower




ATTORNEY FOR THE BOARD

Biswajit Chatterjee, Counsel


INTRODUCTION

The Veteran had active duty from February 1973 to May 2003.  She died in January 2008.  The appellant is her surviving spouse.  

This appeal to the Board of Veterans' Appeals (Board) is from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.  

The appellant testified at a videoconference hearing at the RO in August 2011, before the undersigned Acting Veterans Law Judge (VLJ) of the Board.  A transcript of the hearing is associated with the claims file.  


FINDINGS OF FACT

1.  The Veteran's death certificate shows she died in January 2008, from listed causes of death of:  (1) respiratory failure and (2) metastatic breast cancer.  

2.  The Veteran was service-connected for several disabilities at the time of her death, which in pertinent part include:  (1) bronchitis, assigned a 60 percent disability rating; and (2) skin conditions, including skin cancer, et al, assigned a 10 percent disability rating.  

3.  The Board finds that the Veteran's service-connected bronchitis either principally caused or substantially contributed to her terminal respiratory failure.


CONCLUSION OF LAW

The criteria for the establishment of service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to grant the appellant's claim of entitlement to service connection for the cause of the Veteran's death is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 

The appellant-widower primarily contends that the Veteran's service-connected bronchitis was a principal or contributing cause of the Veteran's death from respiratory failure.  The Veteran was service-connected for several disabilities at the time of her death, which in pertinent part include:  (1) bronchitis, assigned a 60 percent disability rating; and (2) skin conditions, including skin cancer, et al, assigned a 10 percent disability rating.  

To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death.  38 C.F.R. § 3.312(b).  A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death.  38 C.F.R. § 3.312(c).  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.

In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require VA to assist in obtaining a medical opinion for a DIC claim, but it does require VA to assist in obtaining such whenever it is necessary to substantiate the DIC claim.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

On review of the medical and other evidence of record, the Board finds the appellant has established that the Veteran died as a result of her service-connected bronchitis, when resolving doubt in favor of the Veteran.  Initially, there was no medical opinion evidence to either support or deny the notion that the Veteran's service-connected bronchitis was a contributory or principal cause-of-death.  Consequently, the Board sought a Veterans Health Administration (VHA) medical opinion in February 2013 to assist in determining whether the Veteran's service-connected bronchitis caused or contributed substantially or materially to her death, particularly from terminal respiratory failure.  

In turn, a VA pulmonologist, at the Central Alabama Veterans Health Care System (CAVHCS), provided a positive medical opinion in March 2013, in support of the appellant's claim that the Veteran's service-connected bronchitis caused or contributed to death.  On review of the medical records, the VA pulmonologist noted chronic bronchitis was diagnosed in 1975, while the Veteran was still in service, and then progressively deteriorated as demonstrated by pulmonary function tests in 2004 and 2007.  The VA pulmonologist further noted that the Veteran had an underlying malignancy, referring to her metastatic breast cancer, which was treated and "apparently punched down the immune system."  The VA pulmonologist observed that these facts altogether indicated an "ongoing respiratory failure."  The pulmonologist concluded, "...[i]t is my reasoned medical opinion that her service-connection of 60% bronchitis caused and substantially contributed to her death, particularly respiratory failure."  The physician reasoned in this regard that she had an underlying compromised immune system related to malignant breast cancer, and her bronchitis had been treated with bronchodilators, topical steroids and oxygen therapy for daily activities of living.  The physician further noted that the compromised immune system from underlying cancer with ongoing chronic bronchitis "can have a devastating effect of respiratory failure..."  

Thus, the VA pulmonologist opined that chronic bronchitis had caused and substantially contributed to her death, particularly respiratory failure.  Therefore, the Board accords great probative weight to the VHA opinion that the Veteran's service-connected bronchitis either principally caused or substantially contributed to her terminal respiratory failure, as such is based on an accurate factual premise, and offered clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  See Nieves- Rodriguez, supra; Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

Resolving any doubt in the Veteran's favor, the Board finds the competent medical evidence supports the notion that the Veteran's service-connected bronchitis either principally caused or substantially contributed to her death from terminal respiratory failure.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.312.  Service connection for the cause of the Veteran's death is warranted on these grounds.  38 U.S.C.A. § 5107; 38 CFR § 3.102; Gilbert, supra.


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Alternatively, the appellant-widower additionally contended that the Veteran's non-service-connected, metastatic breast cancer had its onset during service, in 2003; and that the Veteran's service-connected skin cancer indirectly contributed to her death, by contributing to the metastatic breast cancer noted on her death certificate.  In this regard, the Board acknowledges the conflicting positive and negative medical opinions on whether the Veteran's metastatic breast cancer, which appears to be a contributory cause-of-death, had its onset during her period of active duty military service.  Concerning the negative evidence, an October 2008 VA compensation clinician opined against the possibility that the Veteran's metastatic breast cancer was etiologically linked to service.  There are also several positive medical opinions by private treating providers concerning the possibility that breast cancer had its onset during service.  However, the Board does not find it necessary at this point to further consider the issue of whether the Veteran's terminal metastatic breast cancer was causally related to, or had its onset during, her military service.  To emphasize, the Board finds sufficient evidence to grant the cause-of-death claim based solely on her service-connected bronchitis disability.  

ORDER

Service connection for the cause of the Veteran's death is granted.



____________________________________________
CAROLE KAMMEL
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs