Citation Nr: 1324870 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-05 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps at various intervals between April 1945 and May 1952. He served in Korea during the Korean War, and was the recipient of the Purple Heart. He died in June 2007 at the age of 79. The Appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Appellant testified at a Board hearing before the undersigned in March 2011. A transcript of the hearing has been associated with the Veteran's VA claims file. FINDINGS OF FACT 1. The Veteran died in June 2007. The death certificate lists the cause of death as chronic obstructive pulmonary disease (COPD) as a consequence of arteriosclerotic cardiovascular disease (ASCVD). The death certificate also lists tobacco use as a contributory factor in the Veteran's death. 2. In pertinent part, at the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD). 3. The evidence of record supports a finding that the Veteran's service-connected PTSD caused the Veteran to use tobacco products, that tobacco use was a substantial factor in the development of the Veteran's fatal COPD, and that the Veteran's fatal COPD would not have occurred but for the use of tobacco products caused by the PTSD. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012); VAOPGCPREC 6-03 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Appellant in proceeding with this appeal given the favorable nature of the Board's decision. II. Cause of Death In order to establish service connection for the cause of a 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. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). In pertinent part, the Appellant argues that the Veteran's service-connected PTSD caused or contributed to the development of his fatal lung disability. In particular, the Appellant contends that the Veteran smoked cigarettes in an effort to self-medicate his PTSD symptoms over the years, and any contributory role the Veteran's smoking had on his death or in the development of his fatal disability, was essentially compounded as a result of his need to smoke to alleviate his PTSD symptoms. See the March 2011 Board Hearing Transcript at 6, 9. As the Board is granting the Appellant's claim based on this theory of entitlement below, it need not discuss the Appellant's other proposed entitlement theories. Although Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service (see 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300), the relevant statutes and regulations do not bar a finding of secondary service connection for a disability related to use of tobacco products after service. VAOPGCPREC 6-03 (Service Connection for Cause of Disability or Death, 69 Fed. Reg. 25178 (2004)). Thus, if the evidence in this case demonstrates that the Veteran's service-connected PTSD caused the Veteran to use tobacco products, that tobacco use was a substantial factor in the development of the Veteran's fatal COPD, and that the Veteran's fatal COPD would not have occurred but for the use of tobacco products caused by the PTSD, the COPD may be service-connected for the purposes of granting the Appellant's cause of death claim. See id. In this case, the evidence favors a finding that the Veteran's PTSD caused or contributed to his decades long history of tobacco use. Indeed, the Veteran has submitted compelling medical treatise evidence indicating that the smoking rate (number of cigarettes per day) is higher among veterans with PTSD than those without PTSD, and that "veterans with PTSD may smoke to reduce anxiety, depression and PTSD symptoms." See the 2007 report entitled "Anxiety, Anxiety Disorders, Tobacco Use, and Nicotine: A Critical Review of Interrelationships," at 262. In addition, the Appellant has competently and credibly testified that during the Veteran's life, she observed him smoke to alleviate anxiety and depression. Indeed, one of the Veteran's private physicians confirmed in November 2007 that it was as likely as not that the Veteran's PTSD contributed to his fatal COPD, presumably through smoking. Further, although a VHA psychiatrist recently specified in a May 2013 report that there are many factors that may cause a person to smoke, the expert did not specifically rule out a relationship between PTSD and increased tobacco use. Accordingly, based on all of the above, the Board finds that the Veteran's smoking habit was at least in part caused or exacerbated by his service-connected PTSD. The evidence also favors a finding that the Veteran's tobacco use played a substantial role in the development of his fatal COPD. Although a recent VHA internist noted that the Veteran's smoking history "may" have been a major risk factor for his COPD, the medical research she referenced in her June 2013 report specifically indicated that COPD is "rapidly becoming a global public health crisis with smoking being recognized as its most important causative factor," and that "lifelong smokers have a 50% percent probability of developing COPD. . . ." In addition, as noted above, the Veteran's death certificate lists COPD as a cause of death, and specifies that tobacco was a contributing factor. Finally, and crucially, a June 2008 VA examiner determined upon review of the record that it was more likely than not that the Veteran's fatal COPD was related to long-standing tobacco use. While no medical expert has specifically stated that the Veteran's fatal COPD would not have occurred but for the use of tobacco products, upon review of the medical and lay evidence as a whole, it is apparent that the Veteran's lifelong smoking history greatly contributed to his development of COPD and in turn his death. Indeed, as noted above, the medical treatise evidence of record strongly suggests that tobacco use is the "most important causative factor" in the development of COPD, and crucially, the Veteran's death certificate confirms that his decades long history of tobacco use contributed to his death. If it is true that the Veteran's fatal COPD was more likely than not due to long-standing tobacco use, as confirmed by the June 2008 VA examiner, it follows that without this history of smoking, his chances of developing fatal COPD would likely be reduced. Indeed, medical research cited by the VHA internist in June 2013 specified that there is "evidence that the risk of developing COPD falls by about half with smoking cessation." [Emphasis added by the Board.] As such, resolving all doubt in the Veteran's favor, the Board finds that the evidence sufficiently demonstrates that but for the Veteran's tobacco use, his fatal COPD would not likely have occurred. In sum, because the record demonstrates that the Veteran's service-connected PTSD caused the Veteran to use tobacco products, that tobacco use was a substantial factor in the development of the Veteran's fatal COPD, and that the Veteran's fatal COPD would not have occurred but for the use of tobacco products caused by the PTSD, the Board concludes that entitlement to service connection for the cause of the Veteran's death is established. The benefit sought on appeal is allowed. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs