Citation Nr: 1750184 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 09-48 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1941 to June 1946. He died in November 1990; the Appellant in this case is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 November 1990; the immediate cause of death was cardiorespiratory arrest due to hypostatic pneumonia. 2. At the time of the Veteran's death, he was service-connected for residuals of a bayonet wound, through and through, in the right back, chest, and right arm, with injury to muscle groups I, II, and VI. 3. The Veteran's service-connected bayonet wound substantially contributed to the Veteran's hypostatic pneumonia and his subsequent death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of the 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. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related to death. For a service-connected disability to constitute a contributory cause, 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. Additionally, service-connected disease 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. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016); see also Schoonover v. Derwinski, 3 Vet. App. 166, 168-69 (1992); Ventigan v. Brown, 9 Vet. App. 34, 36 (1996). During his lifetime, the Veteran was service-connected for residuals of a bayonet wound, through and through, to the right back, chest, and right arm, with injuries to muscle groups I, II, and VI. At the time of his death, this was rated at 30 percent disabling. The Veteran's death certificate showed he died in November 1990, and the immediate cause of his death was cardiorespiratory arrest due to hypostatic pneumonia. The Board obtained a Veterans Hospital Administration (VHA) opinion from a cardiologist in November 2016. The examiner opined that it was at least as likely as not that the Veteran's service-connected residuals of a bayonet wound, through and through, to the right back, chest, and right arm, with injuries to muscle groups I, II, and VI, contributed to diminished lung function, and therefore contributed to the Veteran's historic pulmonary complaints. Additionally, the examiner opined that it was at least as likely as not that the Veteran's service-connected bayonet wound contributed to his cause of death as a result of hypostatic pneumonia. In support, the examiner stated the description of the bayonet wound scar in the record suggested that the lung was penetrated, and for that reason, he believed the lung was damaged at that time and this made it a set up for recurrent infections. Thus, he stated this wound contributed to the Veteran's eventual diagnosis of pneumonia, and his subsequent death. The Board finds that this opinion is highly probative as it was rendered by a Board certified cardiologist. Further, it was based on medical principles and applied to the facts of this case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Additionally, as the examiner's opinion indicated the Veteran's service-connected residuals of a bayonet would resulted in the impairment of a vital organ-the Veteran's lung-special consideration under 38 C.F.R. § 3.312(c)(3) is warranted in this case. As discussed above, the examiner stated the impairment of the Veteran's lung by his service-connected bayonet wound rendered the Veteran less capable of resisting recurrent lung infections, including pneumonia, and this ultimately materially contributed to his death. The Board notes that the claims file also contains a negative VA opinion in September 2014, where the examiner opined it was less likely than not that the Veteran's service-connected residuals of a bayonet wound contributed to the cardiorespiratory arrest and hypostatic pneumonia. However, in providing the negative opinion, the examiner did not consider whether the bayonet wound scar had penetrated the Veteran's lung, leading to recurrent infections and the Veteran's eventual hypostatic pneumonia. Additionally, the examiner was not a Board certified cardiologist. Therefore, for the reasons discussed above, the evidence is at least in equipoise as to whether the Veteran's service-connected bayonet wound, through and through, to the right back, chest, and right arm, with injuries to muscle groups I, II, and VI, substantially contributed to the Veteran's death as a result of hypostatic pneumonia. Thus, entitlement to service connection for cause of the Veteran's death is warranted. In reaching the above conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for cause of the Veteran's death is granted. ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs