Citation Nr: 1640628 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 13-28 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and D.H. ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1963 to June 1967 and from November 1967 to January 1990. He retired from service as a Chief Petty Officer. On May 19, 2012, he passed away. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota which denied service connection for the Veteran's cause of death and also denied Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. §1318. The Appellant appealed. In March 2014, the appellant testified at a hearing before a Decision Review Officer (DRO) at the RO in Boise, Idaho. A transcript of this hearing has been associated with the claims file. The Board observes for the record that during this hearing, the Appellant withdrew on the record her claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318. See March 2014 DRO hearing transcript, pgs. 24-25. In July 2016, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The sole issue upon which testimony was taken was the Appellant's claim of entitlement to service connection for the Veteran's cause of death. A transcript of this hearing has also been associated with the claims file. This appeal was processed using the Veteran's Benefits Management System (VBMS), with records also contained in a Virtual VA paperless claims file. FINDINGS OF FACT 1. The Veteran died in May 2012. His original death certificate lists the immediate cause of death as Acute Myocardial Infarction due to COPD, due to Congestive Heart Failure, due to Parkinson's disease. "History of Falls Due to Neuropathy" is listed as "other significant conditions contributing to death but not resulting in the underlying cause of death." 2. At the time of his death, the Veteran was service-connected for chondromalacia and degenerative joint disease of the left and right knees, lumbar disk disease, left leg radiculitis, right leg radiculitis and hearing loss. He was also granted individual unemployability from January 26, 2009. 3. Letters in the claims file dated in October 2012 and November 2013 from the Veteran's cardiologist state that the Veteran's service-related radiculopathy/radiculitis was "the most important feature" [in terms of death] and that it aggravated the Veteran's other non-service-connected illnesses. 4. Neuropathy is a term that refers to general diseases or malfunctions of the nerves. 5. Resolving reasonable doubt in favor of the Appellant, service-connected radiculitis (a.k.a. radiculopathy and neuropathy) contributed substantially and materially to the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1154(a), 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist The Board is required to ensure that VA's duties to notify and assist claimants in substantiating a claim for VA benefits, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), have been satisfied. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.103, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the Board's favorable decision to grant entitlement to service connection for the cause of the Veteran's death, a discussion of VA's duties to notify and assist is not necessary. Service connection for the cause of death 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. 38 C.F.R. § 3.312 (a). The 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). 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. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for the cause of a veteran's death, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Prior to turning to the merits of the Appellant's claim, the Board observes that the parties and medical providers in this case appear to have used the terms "radiculitis," "radiculopathy" and "neuropathy" interchangeably. Although each term has its own specific meaning, all three generally refer to the malfunctions of nerves. In this regard, radiculitis ( for which the Veteran was service-connected) is generally known as an inflammation of a nerve root. See www.encyclopedia.com; 38 C.F.R. § 20.903(b)(2). Radiculopathy refers to a disease of the spinal nerve roots. Id. Lastly, neuropathy is a term that refers to general diseases or malfunctions of the nerves. See www.emedicinehealth.com. As it is clear from a review of the medical evidence, hearing testimony and statements that the term neuropathy noted on the Veteran's death certificate is viewed to be the same disability referred to as radiculopathy/radiculitis in the medical opinions of record, the Board will analyze the appeal in light of this usage. As mentioned previously, the Veteran died in May 2012; and his original death certificate lists "History of Falls Due to Neuropathy" as another significant condition contributing to his death but not resulting in the underlying cause of death. At the time of his death, the Veteran was service-connected for (among other things) left leg radiculitis and right leg radiculitis. The Appellant alleges that the Veteran's service-connected radiculitis was "severe enough" to be medical diagnosed as neuropathy; and that the Veteran's neuropathy was a significant contributing factor to his death. See Appellant's December 2012 statement. In support of her claim, the Veteran's cardiologist submitted two (2) statements on the Appellant's behalf in which she opined that the Veteran's service-related radiculopathy resulted in large part an inability for the Veteran to ambulate and move around. See letters dated in October 2012 and November 2013. She went on to state that she believed the Veteran's inability to move around aggravated his heart disease, COPD, diabetes and Parkinson's disease. She ultimately concluded that she thought the Veteran's service-related radiculopathy was the most important feature of the Veteran's health problems and ultimately aggravated his other illnesses. Id. In addition to the cardiologist's opinions, the claims file contains an opinion by a VA medical doctor in which the doctor reviewed the claims file and medical evidence of record. Thereafter, he opined that it was less likely than not that the Veteran's cause of death was proximately due to or the result of a service-connected disability. See September 2013 VA medical opinion. In doing so, however, he essentially stated that the Veteran's service-connected radiculopathy may have played a role (although one described as trivial) in the progression of the medical conditions that caused the Veteran's death. Id. Lastly, the Board observes that during the course of this appeal, VA Fast Letter 13-04 was issued by the VA. The Board observes that it is not required to adhere to VA Fast Letters. See 38 U.S.C.A. § 7104(c); 38 C.F.R. § 19.5 (providing that the Board, in its consideration of appeals, "is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues"). Nevertheless, that VA Fast Letter 13-04 provided, in pertinent part: "For [claims for dependency and indemnity compensation benefits,] where the cause of death listed on the death certificate matches one or more of the deceased [v]eteran's service-connected disabilities, take immediate action on the claim by referring it to a rating team for a decision without further development regarding the cause of death. Evidence of service-connected disability in the Corporate Record is sufficient to establish service connection for the underlying disability. Grant service connection for the cause of death when the death certificate shows that the service-connected disability is the principal or contributory cause of death. If the service-connected disability was a contributory cause of death, as listed on the death certificate, presume that it contributed substantially and materially to the [v]eteran's death. Do not develop further for the causal connection between the [v]eteran's service-connected disability and the cause of death." In this case, neuropathy is listed as "other significant conditions contributing to death but not resulting in the underlying cause of death" on the Veteran's original certificate of death. At the time of his death, the Veteran was service-connected for radiculitis, a "type" of neuropathy. Credible medical opinions of record have linked the Veteran's radiculitis/neuropathy to the cause of his death. Viewing these factors in conjunction with VA Fast Letter 13-04, the Board finds that reasonable doubt has been raised and the Appellant's claim for the cause of the Veteran's death should be granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs