Citation Nr: 1320589 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 11-33 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Esq. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to October 1992. He died in July 2010. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for the cause of the Veteran's death and declined to establish eligibility to Dependents' Educational Assistance (DEA). In December 2010, the appellant submitted a notice of disagreement with the denial of service connection for the cause of the Veteran's death. No reference was made to DEA. She subsequently perfected her appeal in December 2011. 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 Veteran's July 2010 amended death certificate shows that he died in July 2010 as a result of severe coronary artery atherosclerosis; and, the only other significant condition listed was elevated cholesterol. 2. At the time of the Veteran's death, service connection had not been established for any disabilities. 3. The competent and credible evidence establishes that the Veteran's elevated cholesterol, which led to his death, began in service. CONCLUSION OF LAW The requirements for 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, 3.159, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) The claim for service connection for the cause of the Veteran's death has been granted, as discussed below. Any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The appellant claims that the Veteran's death from severe coronary artery atherosclerosis was related to his military service. Specifically, she claims that his in-service findings of elevated cholesterol and abnormal electrocardiograms (EKGs) were early signs of heart disease. Therefore, she believes that service connection for the cause of the Veteran's death is warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, singularly 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) (2012). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2012). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (2012). There are primary causes of death which 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 reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4) (2012). In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service-connected. That is, in order to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The evidence must show: (1) the existence of a disability at the time of the Veteran's death; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran's amended death certificate, dated in July 2010, indicates that the Veteran died in July 2010 and listed the cause of death as severe coronary artery atherosclerosis. The death certificate also listed elevated cholesterol as a significant other condition. A July 2010 autopsy report also listed the Veteran's cause of death as severe coronary artery atherosclerosis with no significant medical history. At the time of the Veteran's death, service connection had not been established for any disabilities. However, a review of the service treatment records showed several findings of elevated cholesterol and abnormal EKGs while on active duty. These findings were not associated with any in-service cardiac diagnosis. Although the Veteran was not diagnosed with coronary artery atherosclerosis or any other cardiac disability in service or within one year of separation, the medical evidence supports a causal relationship between the cardiac disability that caused the Veteran's death and his elevated cholesterol and abnormal EKGs during service. Notably, the appellant submitted a May 2012 letter from a private physician. Dr. B. H. M. reviewed the claims file, including the service treatment records showing multiple findings of elevated cholesterol and abnormal EKGs. He opined that the Veteran's death was a derivative of his in-service dyslipidemia and abnormal EKGs. He further determined that he could state with near certainty that the Veteran had underlying cardiopulmonary dysfunction in service, as evidenced by the abnormal examinations and EKGs and significant dyslipidemia. The private physician ultimately concluded that the Veteran's many in-service cardiovascular risk factors ultimately contributed significantly in a causal capacity to his early death from coronary disease. The medical evidence is negative for any other opinions or records that refute Dr. B. H. M.'s positive nexus opinion. In light of the positive private nexus opinion and lack of contradictory evidence, the Board finds that the evidence in this case is, at minimum, in equipoise regarding the question of service connection for the cause of the Veteran's death. Thus, the benefit-of-the-doubt will be resolved in the appellant's favor, and her claim for service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs