Citation Nr: 1804842 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-09 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Tennessee Department of Veterans Affairs ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1966 to April 1968, to include service in the Republic of Vietnam. He died in November 2010 at the age of 63. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2011 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied entitlement to the benefit currently sought on appeal. The appellant requested a personal hearing before the Board in February 2014. In July 2017, however, she withdrew that request in writing. Therefore, the Board will proceed with the appeal. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. The official Certificate of Death lists the Veteran's immediate cause of death as metastatic melanoma with diabetes mellitus as a significant condition contributing to death. 2. At the time of his death, service connection was in effect for diabetes mellitus. 3. The evidence is at least in equipoise as to whether the Veteran's diabetes mellitus was of such severity as to present debilitating effects and general impairment of health as to render the Veteran materially less capable of resisting the effects of his cancer, thus accelerating his death. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the claimant, a service-connected disability contributed substantially or materially to the Veteran's death. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and its implementing regulations describe, in part, VA's legal duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal has been considered with respect to VA's duties to notify and assist. Given the favorable outcome - a full grant of the benefit sought - no further explanation of how VA has fulfilled the duties to notify and assist is currently necessary. Service Connection for the Cause of the Veteran's Death The appellant seeks dependency and indemnity compensation (DIC) benefits under 38 U.S.C. § 1310 based upon service connection for the cause of her late husband's death. Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a). To this end, a contributory cause of death is inherently one not related to the principal cause. VA regulations require that for the purposes of establishing compensation benefits, a service-connected disability be shown to have combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Furthermore, service-connected diseases or injuries involving active processes affecting vital organs are to 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 C.F.R. § 3.312(c)(3). There are also primary causes of death, to include the type of cancer in this case, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, regulations require consideration of 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 this instance, the primary cause of the Veteran's death was metastatic melanoma, for which service connection was not in effect at the time of his death. The official Certificate of Death, however, lists diabetes as an "other significant condition contributing to death," and service connection was in effect for diabetes mellitus at the time of the Veteran's death. Diabetes is the only other condition listed on the death certificate. A February 2014 VA medical opinion states that while the Veteran did have underlying uncontrolled diabetes, it was less likely than not that diabetes materially and substantially contributed to his death. The examiner based this opinion on the fact that the Veteran had suffered a significant decline in status and had stopped eating and drinking during hospice care. The examiner found "no indication" that diabetes played a substantial role in this decline or in the Veteran's death. VA medical opinion, February 2014. However, the Board also notes that a mere 19 days prior to the Veteran's death, he was admitted to the hospital with admitting diagnoses of pneumonia, metastatic cancer, and uncontrolled diabetes. Private treatment record, October 2010. This, taken in conjunction with the certifying physician's determination to list diabetes as the only other named condition with metastatic melanoma on the death certificate tends to indicate that it at least produced some debilitating effects or general impairment of health to the extent that would render the Veteran less capable of resisting the effects of the cancer that primarily caused his death. 38 C.F.R. § 3.312(c)(3). On this basis, the Board finds the evidence to at least be in a state of relative equipoise with regard to the contributory nature of the role played by the Veteran's service-connected diabetes mellitus. In the event that there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA must resolve that doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alternatively, to deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Therefore, given the entirety of the record before the Board, service connection for the cause of the Veteran's death is warranted in this instance. 38 C.F.R. §§ 3.102, 3.312. (CONTINUED ON NEXT PAGE) ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs