Citation Nr: 18153318 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 12-33 756A DATE: November 27, 2018 ORDER Entitlement to service connection for cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in September 1988. The Certificate of Death lists the immediate cause of death was cardiac arrest, which was due to or as a consequence of respiratory failure as well as chronic obstructive pulmonary disease (COPD) and emphysema. Other significant conditions contributing to death, but not related to the immediate causes of death were cardiomyopathy and heart failure. 2. Resolving all benefit of the doubt in favor of the appellant, the Veteran’s COPD, which substantially contributed to his death, manifested during the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1951 to July 1970. He died in September 1988. The appellant is his surviving spouse. In February 2014 the appellant testified at a Travel Board hearing held before the undersigned. A transcript of that hearing is of record. In February 2015, the Board remanded the case to for further development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for cause of the Veteran's death The appellant is seeking service connection for the cause of the Veteran’s death. Specifically, the appellant claims that the Veteran suffered from respiratory problems, including a chronic cough, during service. She asserts that these symptoms were the beginning manifestations of the COPD and emphysema that caused his death. She has also alleged that he was exposed to asbestos while serving aboard many ships in the Navy. Service connection for the cause of the Veteran’s death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran’s death. 38 C.F.R. § 3.312(a). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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. “Service-connected diseases or injuries involving active processes affecting vital organs should 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). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). “There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration 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). The Certificate of Death lists that the immediate cause of death was cardiac arrest, which was due to or as a consequence of respiratory failure as well as COPD and emphysema. Other significant conditions contributing to death, but not related to the immediate causes of death were cardiomyopathy and heart failure. The Veteran was not service-connected for any disability, to include the disorders listed on his Certificate of Death Based on the medical evidence of record and when resolving the benefit of the doubt in favor of the appellant, the Board finds that service connection for the cause of the Veteran’s death is warranted. Importantly, the Veteran’s service treatment records reflect the Veteran was seen multiple times between 1955 and 1957 for a cough. The March 1967 discharge and immediate reenlistment examination documents inspiratory wheezing throughout the left chest. Furthermore, a February 1970 service treatment record indicates that the Veteran had a chronic cough and notes that a chest X-ray reflected pleural reaction or effusion. However, the Board is faced with a conflicting medical record as to whether the Veteran’s COPD, which substantially contributed to his death, manifested in service. In this regard, an October 2016 VA opinion found that it was less likely than not that the Veterans’ death was etiologically related to service, to include any exposure to asbestos. The examiner rationalized that the encounters in service were not the early manifestations of COPD or emphysema, but in fact were caused from a series of self-limiting acute upper respiratory tract infections super-imposed on an undiagnosed asthmatic condition, which was likely the cause of his chronic cough. The examiner continued that there is absolutely no evidence of an asbestos related chronic lung disease and it was highly unlikely that his COPD, which most likely developed years after his military service, was caused by any asbestos exposure he may have had in service. In a December 2016 addendum, the examiner found that after reviewing the additional evidence, which included an autopsy report, there was no change in the prior opinion. In contrast, in October 2018, the appellant’s representive submitted a July 2018 medical opinion, which found that it is at least as likely as not that the Veteran’s chronic cough in service was an early sign of COPD, which was a contributory factor to his subsequent demise. In sum, the examiner rationalized that COPD was a slowly progressive disease caused by long-term exposure to irritating gases or particular matter. Many people have both COPD and emphysema. Early symptoms include mild, but recurrent cough and occasional shortness of breath. Further, the examiner indicated that one of the first signs of COPD is usually a long-term or chronic cough. The examiner noted that the medical evidence showed abnormal lung findings on physical examination as well as radiographically in service. The examiner further observed that early in the disease of COPD, the physical examination may be normal, or there may be wheezing. The main test for COPD is spirometry, which was not performed during service. Plain chest radiographs have a poor sensitivity of detecting COPD. The examiner observed that the VA examiner opined that the Veteran’s complaints of cough were self-limiting acute upper respiratory tract infections superimposed on an undiagnosed asthma condition, but the private examiner stated that it was important to note that the definition of COPD and its subtypes describe exactly the VA examiner’s assessment. Significantly, both the private and the VA examiner reviewed the medical record and both examiners are identified as medical doctors. Moreover, neither opinion is significantly more detailed than the other. Nevertheless, the conclusions reached by the examiners are different. After balancing these two medical opinions, the Board must conclude that there is essentially a state of equipoise as to the medical conclusions to be drawn. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, in light of the evidence discussed above, and   resolving all reasonable doubt in the appellant’s favor, the Board concludes that the criteria for service connection for the cause of the Veteran’s death are met. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats