Citation Nr: 1643388 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 12-32 023 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1962 to December 1966. He died in June 2011. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction over the appellant's claim was subsequently transferred to the RO in Buffalo, New York. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT The Veteran's service-connected disabilities played a material causal role in his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the appellant's claim of entitlement to service connection for the cause of the Veteran's death. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016). Legal Criteria Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the veteran's death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). 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 the death. A service-connected disability will be considered the principal, or 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) (2016). A contributory cause of death is inherently one not related to the principal cause. 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; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be down that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2016); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a) (2016). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Veteran died in June 2011 and his death certificate lists his immediate cause of death as probable sudden cardiac death due to or as a consequence of atherosclerotic cardiovascular disease. Chronic obstructive pulmonary disease (COPD) and hypertension were also certified as significant conditions contributing to death. At the time of his death, the Veteran was service connected for: residuals of a left navicular fracture with partial loss of the use of the left hand, rated as 60 percent disabling; right shoulder degenerative joint disease with strain, rated as 30 percent disabling; and ulnar neuropathy at the right elbow with elbow strain, rated as 10 percent disabling. In an October 2011 letter, the Veteran's VA physician, Dr. C., stated he had attended to the Veteran's medical problems from 2000 to 2010 and had reviewed his medical chart. Dr. C. stated the Veteran had a host of musculoskeletal and neurological problems associated with his time in the military. Dr. C. stated the Veteran had severe pain issues despite receiving physical therapy, nerve blocks, cortisone injections, and medications including opiates in large volumes. Dr. C. noted that throughout the Veteran's treatment at VA, he reported his pain ranged from 8 to 10 out of 10. Dr. C. stated that as a consequence of his chronic pain, which Dr. C. attributed directly to the Veteran's service, the Veteran had developed a sedentary lifestyle, culminating in moderate obesity, atherosclerosis, hypertension, and dyslipidemia. Dr. C. ultimately stated it was his firm belief that the Veteran's atherosclerosis was a direct result of his service-connected disabilities, and that those disabilities contributed to the Veteran's death. The Veteran's medical records were forwarded to a VA examiner in May 2012. The examiner noted the Veteran's service-connected disabilities and stated that there was no causative association between them and atherosclerotic cardiovascular disease, COPD, or essential hypertension. The examiner noted the Veteran had back problems which were due to post-service injuries, and that he had reported smoking heavily for 57 years. The examiner stated there were well-established relationships between smoking and COPD, as well as smoking and atherosclerotic cardiovascular disease with hypertension. The examiner also noted the Veteran's mother had died from cardiac disease. The examiner stated the Veteran's service-connected upper extremity disabilities did not cause or aggravate his COPD, coronary atherosclerosis, or hypertension. In this regard, the examiner stated that the Veteran's service-connected upper extremity disabilities of the wrist, shoulder, and hand would not have limited movement in his legs for physical activity. The examiner ultimately concluded that the Veteran's smoking, family history, and age had caused his atherosclerotic cardiovascular disease, which led to his death, and that his service-connected disabilities played no role in his death. The Board first notes that the May 2012 VA examiner found the Veteran's service-connected upper extremity disabilities would not have limited movement in his legs for physical activity. The examiner, however, does not appear to have considered the possibility that the Veteran's service-connected disabilities, while not impacting his legs, were severe enough and caused enough pain to reduce his mobility and necessitate a sedentary lifestyle, as suggested in the October 2011 letter by Dr. C. In addition, the Board notes that while the May 2012 examiner's opinion is based upon a review of the Veteran's medical records after his death, Dr. C.'s October 2011 letter was informed by his treatment of the Veteran for approximately 10 years. As such, due to Dr. C.'s significant direct contact with and treatment of the Veteran prior to his death, the Board finds Dr. C.'s October 2011 letter is entitled to significant probative weight. Upon a careful review of the foregoing conflicting medical opinions, the Board has determined that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities played a material causal role in the heart disease resulting in his cause of death. Accordingly, granting of service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs