Citation Nr: 1804929 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-25 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active duty service from October 1966 to July 1969, to include service in the Republic of Vietnam. He died in June 2012. The appellant is the surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania. In that decision letter, the RO indicated that it was denying the appellant's claim for accrued benefits because of her lack of status as the Veteran's spouse and also the lack of evidence submitted within a year of the Veteran's death. Subsequently, however, the RO issued a May 2014 statement of the case (SOC) in which it addressed the issue of service connection for the cause of the Veteran's death on the merits, thus indicating that the Veteran's status as a surviving spouse had been established. The Board will similarly find below that the appellant meets the criteria for surviving spouse status. Jurisdiction has been transferred to the RO in San Juan, Puerto Rico. In October 2016, the appellant had a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. FINDINGS OF FACT 1. The appellant and Veteran's marriage met the applicable continuous cohabitation requirements. 2. The treating physician identified the cause of death as congestive heart failure secondary to hypertension. 3. At the time of his death, the Veteran was in receipt of service connection for bilateral hearing loss, rated 60 percent disabling and diabetes mellitus, Type II, rated as 20 percent disabling. 4. The evidence is at least evenly balanced as to whether the Veteran's service-connected diabetes mellitus, Type II, 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. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.1(j), 3.5, 3.50, 3.53, 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board recognizes the appellant as the surviving spouse of the Veteran. 38 C.F.R. §§ 3.1(j), 3.50, 3.53. She submitted a valid marriage certificate and provided a reasonable explanation as to why she was not residing with the Veteran prior to his death. There is no evidence indicating that she was at fault for the separation. (See March 2012 VA treatment records, social history report for the Veteran). As noted above, the RO also appears to have recognized the appellant as the Veteran's surviving spouse by adjudicating the claim for service connection for the cause of the Veteran's death on the merits in the May 2014 SOC. DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 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 is 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). At the time of the Veteran's death, the Veteran was service-connected for diabetes mellitus, Type II, rated 20 percent disabling, and bilateral hearing loss, rated as 60 percent disabling. 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). Diabetes is a disease involving active processes affecting vital organs. In this case, the Veteran died in June 2012. His death certificate did not list a cause. The appellant submitted a January 2014 letter from Dr. M.D. explaining that New York City death certificates do not list a cause of death. He reported that the immediate cause of the Veteran's death was complications of congestive heart failure due to hypertension. There is a paucity of medical evidence during the years leading to the Veteran's death. The available medical records indicate that the Veteran completely stopped seeking medical care and taking medications in 2008. It appears he disagreed with a medical recommendation for a lower extremity amputation and feared further medical treatment would lead to the unwanted amputation. In March 2012, the Veteran sought emergency care for hypertension with flash pulmonary edema. He was noted to have diabetes as a medical condition. He was also assessed with congestive heart failure. Palliative care was requested, and he passed away in June 2012. During the November 2016 hearing, the appellant reported that the Veteran took insulin injections, and she knew of at least one episode where the Veteran passed out from inadequate blood sugar control. In this case, the service-connected diabetes mellitus affected a vital organ (i.e., the pancreas), as distinguished from muscular or skeletal functions, and was evaluated as 20 percent disabling. The Board must consider whether debilitation from diabetes rendered the Veteran less capable of resisting other diseases that caused death and is thereby a contributory cause. Id. The Board finds the appellant competent and credible in her reports of the Veteran having a history for insulin dependence and at least one episode of severe loss of blood sugar control. Her reports in connection with the absence of medical treatment during the Veteran's last four years of life would suggest that diabetes was not well controlled. Diabetes poses many complications and is a well-known risk factor for heart disease. https://www.niddk.nih.gov/health-information/diabetes/overview/preventing-problems/heart-disease-stroke (last visited January 19, 2018). Given the limited evidence available, a determination that service-connected diabetes mellitus rendered him materially less capable of resisting the effects of the hypertension and congestive heart failure that immediately caused his death is plausible. 38 C.F.R. § 3.312(c)(3). In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's service-connected diabetes mellitus, Type II 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 hypertension and attendant 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. § 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