Citation Nr: 1749255 Decision Date: 11/01/17 Archive Date: 11/13/17 DOCKET NO. 16-08 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Center THE ISSUES 1. Entitlement to service connection for the Veteran's cause of death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Michael J. Woods, Esq. ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from October 1955 to August 1958 and from March 1962 to January 1981. The Veteran died in January 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction subsequently transferred to the Milwaukee Pension Center in Milwaukee, Wisconsin. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the appellant, the Veteran's death was caused by respiratory failure due to chronic obstructive pulmonary disease (COPD), which is etiologically related to his in-service chronic respiratory disorders. 2. DIC based on service connection for the cause of the Veteran's death is a greater benefit than DIC based on section 1318; therefore, the latter claim is moot. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2017). 2. The claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. § 1318 (West 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As the Board is granting the claim of entitlement to service connection for the cause Veteran's cause of death, the appellant is not prejudiced by any potential deficiency in VA's actions regarding its duties to notify and assist. This grant also renders moot the claim for entitlement to DIC benefits under 38 U.S.C.A. § 1318. Therefore, further discussion of VA's duties to notify and assist as to these issues is unnecessary. Wensch v. Principi, 15 Vet. App 362, 367-68 (2001). Entitlement to Service Connection for the Veteran's Cause of Death Dependency and indemnity compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5 (2017). 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. 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). 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. 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. 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. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312 (c)(2). Service-connected diseases 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 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 disease 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 which 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 of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017). In considering the evidence of record under the laws and regulations cited above, the Board finds the weight of the evidence to support a grant of service connection for the Veteran's cause of death. The Veteran's death certificate is of record, and lists "congestive heart failure" (CHF) as the immediate cause of death, with no other immediate or contributory conditions listed. The appellant has argued that coronary artery disease led to the Veteran's congestive heart failure and his death, and that due to his presumptive exposure to Agent Orange during service, his cause of death should be service connected. While the evidence of record does not appear to support such contention, the weight of the evidence is found to support a finding that the Veteran's COPD was a primary cause of death, and that his COPD is etiologically related to his in-service chronic bronchitis and other respiratory disorders. Although information on the death certificate is often particularly probative as the primary and contributory cause(s) of death, the Board finds the treatment records immediately leading up to the Veteran's death and the opinion of the January 2012 VA medical expert to be more persuasive in this case. In January 2012, the claims file was referred to a VA physician for a medical opinion regarding the cause of the Veteran's death. After reviewing the medical progress notes of the Veteran's terminal hospitalization, the physician provided an opinion that it was more likely than not that the Veteran died of acute respiratory failure due to COPD, rather than CHF. He acknowledged that the death certificate listed CHF as the sole cause of death, but stated that there is no other evidence to suggest that this represented the sole cause of death. The Board has also reviewed the terminal hospital records, and notes that the chief diagnosis discussed was Respiratory Failure, which was noted to be likely due to COPD. The final entry from that facility states that "the Veteran was admitted with a diagnosis of Respiratory Failure, acute, and subsequently died from complications related to this and other problems." In support of her claim, the appellant submitted a private medical opinion in June 2017. The reviewing physician noted that the Veteran's service treatment records documented numerous complaints and courses of treatment for respiratory ailments, including but not limited to bronchopneumonia, chronic bronchitis and sinusitis, allergic rhinitis, upper respiratory infections, asthmatic bronchitis, and asthma during both periods of the Veteran's active military service. The physician concluded that based upon review of these records, it is clear that respiratory impairments that persisted over the course of more than twenty years in military service at least as likely as not contributed materially and substantially the Veteran's chronic obstructive pulmonary disease later in life. While an additional VA medical opinion from January 2016 found that the Veteran had asthma which was less likely than not aggravated beyond its normal progression by service, the physician did not addressed the service treatment records diagnosing bronchitis, chronic bronchitis, or bronchopneumonia. The Board also notes that because the Veteran's entrance examination did not note any respiratory abnormalities or defects at the time the Veteran entered service, the Veteran is presumed to have entered military service in sound condition in that regard. See 38 U.S.C.A. § 1111. The opinion of the January 2016 examiner is therefore found to carry limited probative value. Chronic bronchitis involves a long-term cough with mucus and is one of the two main forms of COPD. See "Chronic obstructive pulmonary disease," MedLinePlus.gov (last updated October 3, 2017). Chronic bronchitis was documented numerous times during both periods of active military service, and bronchitis and COPD were noted as active problems in the Veteran's later treatment records. The June 2017 private medical opinion is found to represent the most persuasive evidence of record regarding the likelihood of an etiological relationship between the Veteran's in-service respiratory disorders and the COPD which caused the Veteran's death. Thus, a preponderance of the competent and credible medical evidence of record demonstrates that the Veteran died from respiratory failure due to exacerbation of his COPD, which is at least as likely as not causally related to his in-service chronic bronchitis and other respiratory impairments. An award of service connection for the cause of the Veteran's death is therefore found warranted. Entitlement to DIC benefits under 38 U.S.C.A. § 1318 As DIC based on service connection for a veteran's cause of death is a greater award than that for DIC benefits under 38 U.S.C.A. § 1318, when the former is awarded, the latter will be rendered moot. In this decision, the Board has found that the appellant is entitled to DIC benefits based on entitlement to service connection for the Veteran's cause of death. Thus, the claim for DIC based on 38 U.S.C.A. § 1318 is rendered moot and dismissed. ORDER Service connection for the Veteran's cause of death is granted. The appeal seeking entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs