Citation Nr: 1751353 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-25 353A ) DATE ) ) On appeal 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 J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1974. He died in December 2010, and the Appellant claims as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in which the RO, inter alia, denied service connection for the cause of the Veteran's death. Jurisdiction over this case was subsequently transferred to the VARO in Buffalo, New York, and that office forwarded the appeal to the Board. In February 2016, an informal hearing conference with a decision review officer (DRO) was conducted at the RO. A report of that conference is of record. The Board notes that in an October 2017 communication, the Veteran's representative requested that the claim on appeal be remanded to the AOJ based on inadequacy of the record. However, as the Board is granting in full the benefit sought on appeal, the remand request is moot. 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). FINDINGS OF FACT 1. The Veteran died in December 2010, and the Appellant claims as his surviving spouse. 2. The Veteran's amended death certificate lists the immediate cause of death as probable pneumonia and a June 2011 addendum report from the County of Erie Office of the Medical Examiner indicated that a change in mental status and an overwhelmed respiratory function likely also contributed to the Veteran's death. 3. At the time of his death, the Veteran was in receipt of service connection for catatonic type schizophrenia, rated 70 percent disabling, as well as a TDIU due to service-connected schizophrenia. 4. The evidence is at least evenly balanced as to whether the Veteran's service-connected catatonic type schizophrenia contributed substantially or materially to his death. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Appellant, 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. §§ 3.5, 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). In this case, the Veteran died in December 2010, and his amended death certificate listed the immediate cause of death as "probably pneumonia." A June 2011 addendum report from the County of Erie Office of the Medical Examiner revealed that, at the time of death, the Veteran was hospitalized and being treated for cellulitis with an accompanying abscess, and that he was progressing well until he developed pneumonia which rapidly progressed to death. In the report, the medical examiner explained that the Veteran had pneumonia, and that this probably caused his death. However, she also indicated that there was still the possibility that illegal drugs contributed to the Veteran's change in mental status and impaired his ability to clear his airway with resultant pneumonia. She also indicated that the central line placement that preceded death may have impaired the function of the Veteran's right lung, and that this, together with the left lung pneumonia, may have overwhelmed his respiratory function to the extent that he could not be revived. Based on the foregoing, the medical examiner concluded, "None of these issues can be resolved, and in reality, all of the issues raised probably contributed more or less to [the Veteran's] death." At the time of the Veteran's death, the Veteran was service-connected for catatonic type schizophrenia, rated 70 percent disabling, and also in receipt of TDIU due to his service-connected schizophrenia. The Board notes that 38 C.F.R. § 3.312(c)(3) provides that service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, even if the primary cause is 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 primarily causing death. 38 C.F.R. § 3.312(c)(3). Here, the service-connected schizophrenia affected a vital organ (i.e., the brain), as distinguished from muscular or skeletal functions, and was evaluated as 70 percent disabling. In addition, the Veteran was in receipt of a TDIU for his service-connected schizophrenia, further indicating the severity of the schizophrenia and the likelihood that it caused debilitating effects. Given that the death certificate indicated that the immediate cause of death was pneumonia, and that the regulation specifically provides that the Board consider debilitation rendering a person less capable of resisting other diseases that caused death, the application of the regulation to the facts of this case warrants the conclusion that the Veteran's service-connected schizophrenia rendered him materially less capable of resisting the effects of the pneumonia that immediately caused his death. Moreover, the June 2011 medical examiner's opinion regarding other likely complications contributing to the Veteran's death, namely a change in mental status impairing the Veteran's ability to clear his airway and an overwhelmed respiratory function, also supports the conclusion that the Veteran's service-connected schizophrenia rendered him materially less capable of resisting the effects of the aforementioned complications that likely contributed to his death. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected schizophrenia contributed substantially or materially to his death, by causing debilitating effects and general impairment of health rendering him materially less capable of resisting the effects of pneumonia and other identified complications. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Appellant, entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs