Citation Nr: 1737535	
Decision Date: 09/07/17    Archive Date: 09/19/17

DOCKET NO.  15-46 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

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



REPRESENTATION

Appellant represented by:	Stacey Clark, Attorney


ATTORNEY FOR THE BOARD

Stephen LoGerfo, Associate Counsel 



INTRODUCTION

The Veteran served on active duty in the United States Navy from March 1945 to February 1949. He died in April 2002. 

The Veteran's widow brought a claim for service connection based on the cause of death. 

This matter comes before the Board from an April 2013 rating decision by the Board of Veterans' Appeals (Board) Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The Veteran died in April 2002.  The death certificate lists the immediate causes of death as chronic obstructive pulmonary disease, coronary artery disease and congestive heart failure. 

2.  At the time of his death, the Veteran was not service connected for any disabilities.  

3. Chronic obstructive pulmonary disease, coronary artery disease and congestive heart failure are not attributable to service and were not manifest within one year of the Veteran's separation from service. 



CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death are not met.  38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.5, 3.312 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection

When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, a surviving spouse, child, or parent is generally entitled to DIC.  38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.5(a) (2016); see generally 38 U.S.C.A. Chapter 11.  Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303.

Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available.  38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  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 - e.g., when a causal (not just a casual) connection is shown.  38 C.F.R. § 3.312(c).  

Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death.  Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed.  38 C.F.R. § 3.312(c)(3).

There are primary causes of death that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was, itself, of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992).

In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service.  38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312.

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996).

The Veteran's certificate of death shows that the Veteran died in April 2002.  The death certificate lists the immediate causes of death as chronic obstructive pulmonary disease, coronary artery disease and congestive heart failure. No other cause is listed on the form.  The Veteran was 74 years old.  

At the time of his death, the Veteran was not service-connected for any disability. However, the appellant contends that the Veteran died due to asbestos exposure in service. 

The Board acknowledges that abestos exposure based on the Veteran's service as a fireman aboard the U.S.S. Wisconsin and the U.S.S. Dayton. However, the weight of the evidence is against finding that the Veteran's COPD or CAD were incurred in or aggravated by military service. 

The Veteran's private physician, Dr. Levinson, submitted a letter to the Board in January 2002 and noted that the Veteran served as a fireman in the boiler room of the U.S.S. Wisconsin. Dr. Levinson opined that "as a direct result of this service he sustained progressive chronic lung disease (advanced COPD with cor pulmonale and CHF)". Unfortunately, Dr. Levinson did not provide a further rationale for this opinion nor are the treatment records from Dr. Levinson available to the Board. The Board requested these documents but Dr. Levinson's office explained that they only keep records for seven years. 

In March 2013, a VA examiner reviewed the Veteran's file and opined on his cause of death. The VA examiner opined that the Veteran's cause of death is not as a result of asbestos exposure, heat and fumes that he experienced in the service. The VA examiner opines that the Veteran died of COPD which is most likely a result of his smoking history. Moreover, clinical studies reveal even a past history of smoking puts an individual at risk for developing COPD. Finally, the Veteran also had coronary artery disease which is mostly a result of cholesterol, male gender genetics and smoking. Congestive heart failure is secondary to the Veteran's coronary artery disease and other co-morbid conditions. 

The Veteran's treatment records at the Miami VAMC show treatment for COPD but do not provide any evidence that shows it was caused by asbestos exposure. Service treatment records do not contain any treatment of complaints for COPD or CAD. Finally, Dr. Levinson does not provide a sufficient rationale and treatment history to provide a basis for concluding that the Veteran's COPD was caused by asbestos exposure. Moreover, the VA examiner's opinion has a clear rationale and references the Veteran's smoking history as well as his CAD condition. 

Based on the above, the weight of the evidence is against finding that the Veteran's COPD or CAD were caused or aggravated by service. Therefore, the weight of the evidence is against finding that the Veteran's cause of death was related to service. 

ORDER

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




____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs