Citation Nr: 1804045	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  15-04 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bronchitis.

2.  Entitlement to an evaluation in excess of 60 percent for interstitial cystitis, secondary to hydrocarbon allergy.

3.  Entitlement to an evaluation in excess of 40 percent for a chronic back strain.

4.  Entitlement to a compensable evaluation for sinusitis.

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


REPRESENTATION

Appellant represented by:	Matthew D. Hill, Attorney
ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the United States Navy from July 1989 to April 1993.

These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2009 and March 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In November 2009, the RO denied entitlement to service connection for bronchitis, denied a compensable evaluation for sinusitis, and granted increased evaluations for interstitial cystitis and a chronic back strain.  The Veteran filed a Notice of Disagreement in April 2010.

In May 2012, the RO received notice that the Veteran passed away in April 2012.  The Veteran's cause of death was listed as: cardiopulmonary arrest, pulmonary fibrosis and deep vein thrombosis-thromboembolism, cerebrovascular accident status post-stroke, and infected decubitus wounds with malnutrition.  

The Appellant filed an Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse in May 2012.  Pursuant to 38 C.F.R. § 3.1010(c)(2), this application also constitutes a request for substitution for the Veteran regarding the claims pending at her death.  The RO has not made a determination in the first instance as to the propriety of the Appellant's substitution.

In March 2013, the RO issued a rating decision denying the Appellant entitlement to service connection for the Veteran's cause of death.  The Appellant filed a Notice of Disagreement in August 2013.  A Statement of the Case was issued in January 2015.  The Appellant filed a Substantive Appeal in February 2015.

In a January 2018 pre-conference conference (PHC), the Veteran's representative agreed to withdraw the request for a hearing on this issue before the Board if the undersigned found evidence warranting entitlement to service connection for cause of death based on a review of the record, which has been found based on new evidence of record.  

The issues of entitlement to service connection for bronchitis, and the evaluations of the Veteran's interstitial cystitis, chronic back strain, and sinusitis are in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence of record is at least in equipoise as to whether the Veteran's cause of death is related to her military service.


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R.  §§ 3.102, 3.159, 3.312 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection for cause of death may be awarded for a veteran's death resulting from a service-connected disability or a disability related to service.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.  To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death.  Id.   

The service-connected disability will be considered 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).  The service-related disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or 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).  The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death.  See Lathan v. Brown, 7 Vet. App. 359 (1995).

The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service-connected generally, i.e., while the veteran is still alive.  38 U.S.C.A. § 1310 (West 2014).  Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service.  38 U.S.C.A. §§ 1110 (West 2014).  A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease.  38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Issues involved in a claim for dependency and indemnity compensation (DIC), such as service connection for the cause of death, are decided without regard to any prior disposition of those issues during the Veteran's lifetime.  38 C.F.R. § 20.1106.

The Appellant submitted a detailed medical opinion regarding the cause of the Veteran's death that establishes a nexus with her active duty service.  An occupational and environmental physician reported that, due to the Veteran's exposure to organic solvents and hydrocarbons in service, she developed hypersensitivity pneumonitis (HP), which was chronic in nature.  The Veteran's service record would appear to support this finding.  The physician cited numerous indications of upper respiratory symptoms while in service, including for bronchitis and a chronic cough.  At the time, there were improperly attributed to separate events such as colds, viral syndromes and sinusitis, and the Veteran was never evaluated by a pulmonologist.  These upper respiratory issues continued after her discharge from active duty.  The physician noted that chronic HP symptoms are progressive, and produce fibrotic non-specific interstitial pneumonia, with which the Veteran was diagnosed in 2009.  Individuals with HP develop end-stage fibrotic disease and emphysema, which was found on the Veteran's post-service imaging studies.  Chronic HP also leads to cor pulmonale, or right heart failure, which the Veteran also developed.  

The physician concluded that the Veteran suffered from chronic HP caused by her exposure to hydrocarbons in service.  As a result of her chronic HP, she developed pulmonary fibrosis, which was the cause of death from cardiac arrest.  

The probative medical evidence of record weighs in favor of a nexus between the Veteran's cause of death and her active duty service.  Evidence of record establishes that the Veteran suffered from chronic HP caused by exposure to hydrocarbons while on active duty service.  The condition deteriorated, causing heart failure and pulmonary fibrosis, which directly resulted in the Veteran's death.  As such, service connection for cause of death is warranted.

ORDER

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


REMAND

The Board notes that the Veteran submitted a Notice of Disagreement as to the November 2009 rating decision prior to her passing.  The RO did not issue a Statement of the Case before her death, nor did they adjudicate the issue of her husband's substitution pursuant to 38 C.F.R. § 3.1010(c)(2).  As the Board cannot make a substitution determination in the first instance, the RO must do so on remand (if needed).  Furthermore, after substitution is granted, a Statement of the Case regarding the remaining issues on appeal must be issued.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).   

Accordingly, the case is REMANDED for the following action:

1.  Issue a decision with respect to the Appellant's petition to be substituted for the Veteran as claimant in the issues subject to the November 2009 rating decision.

2.  After substitution is granted, issue a Statement of the Case pertaining to the Veteran's April 2010 Notice of Disagreement.  The Appellant should be informed of the requirements to perfect an appeal with respect to these issues.  If the Veteran perfects an appeal with respect to these issues, the RO should ensure that all indicated development is completed before the case is returned to the Board.

3.  Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal.  If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Appellant and his representative an opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs