Citation Nr: 1756032 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-11 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1953. He died in December 2010 and the appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction over this matter has since transferred to the Cleveland, Ohio RO. The Board previously remanded this matter, most recently in March 2013, for additional evidentiary development. It is now again before the Board for adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2)(2012). FINDINGS OF FACT 1. The Veteran died in December 2010 and his death certificate lists aspiration pneumonia, due to or a consequence of dysphagia, due to or a consequence of recurrent strokes as the immediate cause of death with posttraumatic stress disorder (PTSD) listed as a significant condition contributing to the Veteran's death but not resulting in the underlying cause. 2. At the time of his death, the Veteran was service connected for PTSD and for residuals of frostbite in both feet. 3. The evidence is at least evenly balanced as to whether the Veteran's service connected PTSD 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. §§ 1310, 5107 (2014); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends service connection is warranted for the cause of the Veteran's death because his service-connected PTSD contributed to his death. Pursuant to 38 U.S.C. § 1310 and 38 C.F.R. § 3.5, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. VA's Adjudication Manual instructs that VA must determine if, based on the evidence of record, it is at least as likely as not that the Veteran's death was related to service. Significantly, it goes on to say that DIC should be granted if either the principle or contributory cause of death shown on the death certificate matches one or more of the Veteran's service-connected disabilities, or the cause of death is a presumptive disability and the evidence shows the Veteran meets the particular presumptive criteria. See M21-1, IV.iii.2.A.1.b. (last updated March 14, 2016). Although the provisions of VA's Adjudication Manual are not binding on the Board, there is no basis for finding this Manual provision, which essentially instructs VA to presume that a service-connected disability is the contributory cause of death when listed as such on the death certificate, is not for application in this case. In this case, the Veteran's December 2010 death certificate lists aspiration pneumonia, due to or a consequence of dysphagia, due to or a consequence of recurrent strokes as the immediate cause of death, with PTSD listed as a significant condition contributing to the Veteran's death but not resulting in the underlying cause. At the time of the Veteran's death, he was service-connected for PTSD and for frostbite residuals of both feet. In August 2011, a VA physician opined that the main cause of the Veteran's death was carotid artery stenosis and endarterectomy complications with resulting stroke. The physician indicated this as separate from the PTSD and found the PTSD was not a substantial contributor to the Veteran's death. In August 2012, the Board remanded the matter for an additional opinion, because of the August 2011 physician's lack of discussion of any aggravation of the Veteran's recurrent stroke condition by his service-connected PTSD. In October 2012, the same VA physician issued a second report again finding it less likely as not that the Veteran's death was caused by his PTSD. The physician again explained that the cause of death was artery stenosis and endarterectomy with complications that resulted in a stroke. The physician went on to state that it is mere speculation to relate PTSD to carotid artery stenosis and went on to say, "[j]ust because a stroke and PTSD involve the same body organ does not make them related." Following this opinion, the Veteran's terminal hospital records were added to the claims file. The Board again remanded the matter for a supplemental opinion. Most recently, in April 2016, the same VA physician submitted an addendum opinion. This opinion again included reasons why the Veteran's PTSD did not cause his terminal condition, but gave no opinion as to whether the PTSD aggravated his condition, particularly his recurrent strokes. In sum, to date, the VA physician has not adequately analyzed the pertinent factual question, particularly whether the Veteran's service-connected PTSD aggravated his recurrent strokes, thereby substantially contributing to his death. These opinions, therefore, lack probative weight. The Board finds an additional remand is not necessary, because the remaining evidence of record is sufficient to grant the benefit sought. In this regard, the death certificate clearly lists the Veteran's service-connected PTSD as a contributory cause of death, and there is no evidence of record sufficient to counter this finding. Hence, with consideration of the portion of VA's Adjudication Manual discussed above, the Board finds service connection to be warranted for the cause of the Veteran's death on the basis that his service-connected PTSD as likely as not contributed substantially or materially to his December 2010 death. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs