Citation Nr: 18142147 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 14-17 009 DATE: October 16, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT 1. The Veteran died in January 2010 from large cerebrovascular infarction. The death certificate also listed significant conditions contributing to death as follows: atrial fibrillations, hypertension, peripheral vascular disease, dyslipidemia. 2. At the time of the Veteran’s death in January 2010, service connection was in effect for obstructive lung disease, rated as 30 percent; fractures left great toe and left second toe with amputations, rated as 20 percent; arthritis of left knee and left hip associated with fractures left great toe and left second toe with amputations, rated as 20 percent; and skin graft donor site, scar left thigh, rated as zero percent. 3. The evidence is at least evenly balanced as to whether the service-connected obstructive lung disease contributed substantially or materially to the Veteran’s death. CONCLUSION OF LAW Resolving reasonable doubt in the appellant’s favor, the criteria for 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. §§ 3.102, 3.312 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1955 to October 1958. This matter came to the Board of Veterans’ Appeals (Board) on appeal from September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in January 2010. The appellant is his surviving spouse. The appellant participated in an informal conference at the RO in January 2014. She also requested to testify at a Board hearing scheduled in May 2017, however, she did not appear. A March 2017 hearing notice letter notifying the appellant of the date and time of her hearing was returned as undeliverable, even though the letter was sent to her last known address of record. The RO also unsuccessfully attempted to contact the appellant by telephone. See April 2017 Report of General Information. Pursuant to 38 C.F.R. § 20.702 (d) (2017), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will then be processed as though the request for a hearing had been withdrawn. In February 2018, the Board remanded the matter for further evidentiary development. 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). 1. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran’s obstructive lung disease contributed to the Veteran’s death. The cause of a veteran’s death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312 (a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it 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)(1). In this case, the Veteran died in January 2010, and his Certificate of Death indicates that the immediate cause of death was large cerebrovascular infarction, and lists significant conditions contributing to death as atrial fibrillations, hypertension, peripheral vascular disease, dyslipidemia. At the time of the Veteran’s death in January 2010, service connection was in effect for obstructive lung disease, rated as 30 percent; fractures left great toe and left second toe with amputations, rated as 20 percent; arthritis of left knee and left hip associated with fractures left great toe and left second toe with amputations, rated as 20 percent; and skin graft donor site, scar left thigh. As the Veteran was service-connected for obstructive lung disease, the question is whether such service-connected disability was the principal or contributory cause of death. In a May 2014 letter, the Veteran’s private physician H.L. stated that the Veteran suffered from COPD and it did hasten and/or was a contributing factor in his death. In a May 2018 letter, private physician H.L. reported that as the Veteran’s physician leading up to his death, he felt that his chronic obstructive pulmonary disease contributed to the cause. The physician explained that this is through the mechanism of chronic hypoxia and the stress that it imposes on the cerebral vasculature. He further noted that not only did he think that it contributed to the cause, but also the extent of the infarction, because of the relative poor cerebral oxygen supply caused by his chronic obstructive pulmonary disease. In contrast, in a June 2018 VA medical opinion, the examiner concluded that it is less likely than not that the Veteran’s service-connected conditions contributed substantially or materially to the Veteran’s death. The examiner opined that it is less likely as not that the Veteran’s large cerebrovascular infarction, from which the Veteran died, with other significant conditions contributing to death of atrial fibrillation, hypertension, peripheral vascular disease, and dyslipidemia, was incurred in active service, or first manifested within one year of separation from service. The examiner further opined that it is less likely as not that the Veteran’s service-connected residuals of obstructive lung disease caused or contributed substantially or materially to the cause of the Veteran’s death. The examiner’s rationale was the death certificate mentioned that the principal cause of death is large vascular infarction. It also states that atrial fibrillations, hypertension, peripheral vascular disease, and dyslipidemia contributed to death, but not the resulting in principal cause of death. The examiner noted that the Veteran was not service-connected for any of those conditions, and there is no evidence in the service treatment records that the Veteran had those conditions in active service or within one year after discharging from active service. The examiner further noted that as per the death certificate, the Veteran’s service-connected obstructive lung disease did not contribute substantially or materially to the cause of the Veteran’s death. In this case, the VA examiner did not provide any citations to any medical literature that indicates that obstructive pulmonary disease does not cause cerebrovascular infarction, nor did the examiner address why the private opinion was flawed. On the other hand, although the Veteran’s service-connected obstructive pulmonary disease is not listed on the Veteran’s death certificate, his private treating physician provided a thorough, well-reasoned opinion as to why the Veteran’s service-connected obstructive pulmonary disease contributed substantially and materially to his death. The Board finds no reason to accord more weight to the negative VA medical opinion than the positive private medical opinion with respect whether there was a causal connection between the Veteran’s obstructive pulmonary disease and his death. As such, the evidence is at least evenly balanced as to whether the service connected obstructive lung disease was a contributory cause of death. 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. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel