Citation Nr: 18155682 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 14-39 498 DATE: December 6, 2018 ORDER Service connection for the cause of the Veteran’s death is granted. The appeal of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is dismissed. FINDINGS OF FACT 1. The Veteran’s death on April [redacted], 2011 was immediately due to cardiorespiratory failure due to coronary artery disease (CAD) and chronic obstructive pulmonary disease (COPD). 2. At the time of the Veteran’s death, service connection had already been established for his bilateral hearing loss and generalized anxiety disorder with dysthymia and dementia (previously rated as posttraumatic stress disorder (PTSD)). 3. Anxiety disorder was a significant contributory cause of the Veteran’s death. 4. Entitlement to DIC benefits under 38 U.S.C. § 1318 is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2017). 2. The claim for entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1951 to February 1953. He died on April [redacted], 2011. The appellant is his surviving spouse. 1. Entitlement to service connection for the cause of the Veteran’s death. Service connection may be established for the cause of a Veteran’s death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Secondary service connection is also available for chronic aggravation of a nonservice-connected disorder. In reaching the determination as to aggravation of a nonservice-connected disability, the baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4 ) for evaluating that particular nonservice-connected disorder. See 38 C.F.R. § 3.310. The appellant asserts that the Veteran’s service-connected anxiety disorder (claimed as PTSD) contributed to his cause of death. She contends that anxiety increased the Veteran’s agitation and made it difficult for him to seek treatment. She also described agitation during his time in the hospital and reported that she could see his anxiety wearing him out and was concerned that he would have a heart attack. The Veteran died in April 2011, at the age of 81. His death certificate lists the immediate cause of death cardiorespiratory failure due to CAD and COPD. No autopsy was conducted. At the time of the Veteran’s death, he had been granted service connection for two disabilities: bilateral hearing loss and anxiety disorder (formerly evaluated as PTSD). Service treatment records document no complaints of or treatment for CAD or COPD or related symptoms. On February 1953 separation, clinical evaluations were normal. Post-service, the Veteran was treated for severe hypertension and COPD with a history of smoking. Treatment records document assessments of COPD with a history of lung cancer, and CAD. See October 2009 VA Treatment Records. In March 2011, the Veteran was admitted to a private hospital to treat complaints of trouble swallowing. He reported having shortness of breath. He was found to have a heart attack and underwent catheterization. The treating physician also repaired a right carotid pseudoaneurysm. The Veteran had vocal cord paralysis, respiratory failure, and underwent a tracheostomy. During hospitalization, he required a feeding tube and showed signs of aspiration. He was observed as being very anxious at times. The discharge summary report documents that he “did have some problems with encephalopathy (brain disease) and increased anxiety.” In April 2011, he was found to be stable and discharged from the hospital. A VA medical opinion was obtained in September 2011. Review of the claims file was noted. The physician acknowledged the appellant’s contentions. Based on medical literature, the physician opined that there was no evidence to support a causal relationship between PTSD and CAD. Thus, that the Veteran’s service-connected PTSD did not cause or aggravate his CAD. The examiner also explained that anxiety and dementia are not known to be associated with the development of CAD or COPD. The physician concluded that the Veteran’s service-connected anxiety disorder did not substantially contribute or hasten his death due to cardiorespiratory failure from CAD and COPD. The appellant submitted a private opinion dated March 2014. The physician reported treating the Veteran in March 2011 for a very small heart attack. The Veteran subsequently underwent catheterization and was scheduled for bypass surgery. However, his severe COPD and necessity for placement of a tracheostomy precluded bypass surgery. The physician indicated that he was unaware of the Veteran’s treatment after discharge from the hospital in April 2011. The physician concluded that CAD was caused by his history of smoking, hypertension, and hyperlipidemia. The physician further stated that “[a]nxiety may certainly play a small role in this but is not the primary cause of his coronary artery disease.” Another VA medical opinion was obtained in May 2014. A review of the claims file was noted. The examiner concluded that the culmination of the Veteran’s heart and lung disease with bacterial infection caused his death. The Veteran had encephalopathy which affected his brain function. As such, the examiner opined that “it is less likely than not that anxiety played a role in his demise leading to his death.” As rationale, the examiner stated that the Veteran went into cardiopulmonary arrest due to a combination of his heart, lung condition with infection, and advanced age. In light of the appellant’s contentions and medical evidence above, in May 2018 the Board requested a medical expert opinion to determine the cause of the Veteran’s death. In a November 2018 letter, a VA cardiologist opined that it is less likely than not that the Veteran’s anxiety played a role in his death. The cardiologist acknowledged the complex relationship between anxiety and cardiovascular health, however, there is no conclusive evidence that anxiety disorders aggravate CAD beyond its normal progression. In a separate November 2012 letter, a VA examiner opined that it is at least as likely as not that the Veteran’s service-connected anxiety disorder aggravated symptoms and management of his COPD. The examiner acknowledged medical records and the appellant’s description of the Veteran’s course of treatment, all which document significant anxiety symptoms that would have contributed to his overall debilitation and progression of COPD. The examiner also referenced medical literature stating that anxiety worsens symptoms of shortness of breath, which is a cardinal symptom of COPD. As for baseline, the examiner explained that functional status is a key feature of the severity of COPD. Here, the Veteran’s baseline was that he was able to live at home independently with his spouse despite symptoms of shortness of breath from COPD. After his 2011 hospitalization and with worsening of overall health, including increased in anxiety and COPD symptoms, he was no longer able to live independently and instead required long-term acute care. The examiner concluded that this change in functional status represented a clear decline in baseline status. After a review of all the evidence of record, the Board finds an approximate balance of negative and positive evidence that the Veteran’s service-connected anxiety disorder substantially or materially contributed to his death. The September 2011 and May 2014 VA reports are of little probative value, as the examiners did not fully consider the appellant’s contention that the Veteran’s service-connected anxiety disorder was a contributory cause of death. The November 2018 VA opinion supports a finding that the Veteran’s service-connected anxiety disorder aggravated his COPD symptoms. The Board finds that this is a positive secondary nexus opinion. The examiner acknowledged the appellant’s contentions and the entire claims file in providing the opinion. Moreover, the examiner provided clear conclusions with supporting data, and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The Board accords great probative weight to the November 2012 VA opinion. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). That is the case here. Resolving reasonable doubt in favor of the appellant, entitlement to service connection for the cause of the Veteran’s death is granted. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318. DIC benefits are payable under certain circumstances if the service member was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 are paid in the same manner as if the veteran’s death were service connected. The Board’s grant of service connection for the cause of the Veteran’s death recognizes that the death of the service member was the proximate result of a disease or injury incurred in service. Only if an appellant’s claim for service connection for the cause of the Veteran’s death under 38 U.S.C. § 1310 is denied does VA have to also consider an appellant’s DIC claim under 38 U.S.C. § 1318. Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the Veteran’s death, the claim for entitlement to DIC under 38 U.S.C. § 1318 is moot, requiring dismissal of this aspect of the appeal. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel