Citation Nr: 21002120 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-29 750 DATE: January 12, 2021 ORDER Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Affording the Veteran, by way of the Appellant’s substituted claims, the benefit of doubt, the Board finds the evidence of record is evenly balanced for and against (“in relative equipoise”) the following findings: (1) the Veteran was diagnosed with a neck disability (degenerative disease with myelopathy status post cervical decompression fusion); (2) during his lifetime, the Veteran consistently reported that, during service, he was injured when a nearby explosion threw him 10 or 15 feet into the air; (3) during his lifetime, the Veteran consistently reported that the in-service injury caused “stiffness” to his neck that was further “worsened” by a 1969 work related injury [these competent (that is, qualified) and credible lay statements regarding persistence of symptoms establish a causal connection between the 1952 injury and his pre-death diagnosed neck and back disabilities]. 2. The Veteran’s death certificate lists his immediate cause of death as probable hemorrhagic shock, an unknown source of bleeding, supratherapeutic INR, and pulmonary embolism; the Veteran’s spinal cord injury was listed as a significant contributing condition; the August 2020 VA examiner opined that it is at least as likely as not that the Veteran’s [now-service-connected] cervical spine condition (degenerative disease with myelopathy status post cervical decompression fusion) is related to the notation of spinal cord injury on the death certificate. CONCLUSION OF LAW DIC based on service connection for the cause of the Veteran's death is warranted. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a Veteran who served on active duty from October 1951 to September 1953 and died in October 2012. In November 2015, VA substituted the appellant for the Veteran in the appeals process. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. In September 2018, a videoconference hearing was held before the undersigned, and a transcript is associated with the record. The Board remanded the claim on appeal in March 2016, February 2019, and July 2020 for further development. Service connection for the cause of the Veteran's death Legal Criteria Benefits are paid to a surviving spouse, child, or parent of a qualifying veteran who died from a service-connected disability. 38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was [causally] related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Factual Background The evidence of record includes treatment records that document diagnoses for lumbar and cervical spine degenerative disease and a “spinal cord injury” that is also listed on the Veteran’s death certificate under “other significant conditions contributing to death but not resulting in the underlying cause.” Crucially, although the Veteran was denied service connection for back and neck disabilities during his lifetime, those very matters are currently the subject of the pending appeal, and therefore have not been resolved in a final adjudication at this time. Moreover, the current appeal is a separate claim in which the appellant seeks service connection for the cause of her husband’s death. Therefore, any prior denials of the Veteran’s service connection claims for the underlying disability or disabilities do not affect the procedural standing of this claim, and the Board considers it an original appeal for benefits from the appellant (and not the Veteran). However, the substantive legal analysis herein is inextricably intertwined with those other matters that were on appeal. While there is no clinical or corroborating evidence that the Veteran sustained any back or neck injuries in service, he and the appellant have consistently reported that he has experienced some form of back or neck pain since the in-service explosion. (See February 1997 VA examination; April 1997 Statement in Support of Claim; October 2007 Statement in Support of Claim; November 2007 Statement in Support of Claim; September 2008 Notice of Disagreement; September 2009 VA Form 9; November 2012 Statement in Support of Claim; October 2017 VA Form 9; September 2018 Board hearing; and September 2018 Statement in Support of Claim.) Despite seeking treatment for it over the years, he was often told that nothing was wrong until he eventually had to undergo surgery in 1969. The evidence also indicates the Veteran sustained a work-related spinal injury in 1969 that led to surgery. (See February 1997 VA examination.) VA has obtained numerous VA examinations and medical opinions regarding the Veteran’s neck and back conditions. Most recently, VA obtained an August 2020 addendum medical opinion to address the assertions made by the Veteran prior to his death and the appellant. The examiner opined that it is less likely than not that the Veteran’s neck or back condition was incurred in or caused by the claimed in service injury, event or illness. The examiner reasoned: 1) service treatment records (STRs) note no lumbar spine or back conditions in service, 2) there was no report of back pain at the time of the explosion and a contemporaneous report noted the only injury being to foreign bodies in his eyes, 3) the Veteran’s separation examination reported a normal spine, 4) the Veteran reported the explosion in service in October 1996, but reported no substantial problems at the time, but in 1969 the Veteran had a disc removed due to a work related injury and had problems or residuals since that time, 5) the letters and reports from the Veteran between April 1982 and August 1993 do not indicate a back condition prior to 1969, and 6) imaging studies from March 1989 are consistent with the reported work injury in 1969 and laminotomy. The examiner also stated that the Veteran’s cervical spine conditions were less likely than not caused by the in-service explosion. The examiner stated that: 1) service treatment records (STRs) note no neck or cervical spine conditions in service, 2) there was no report of neck pain at the time of the explosion and a contemporaneous report noted the only injury being to foreign bodies in his eyes, 3) the Veteran’s reported no neck problems between the explosion in service and the 1969 work-related injury, 4) the earliest imaging evidence of the cervical spine was a November 1994 x-ray when the Veteran was 65 years old, at which time the Veteran reported left arm pain for about a week and history of arthritis, and 5) arthritis due to the aging process is commonly seen at 65 years of age. Regarding the Veteran’s cause of death, the examiner opined that it is at least as likely as not that the cervical spine condition degenerative disease with myelopathy status post cervical decompression fusion is related to the notation of spinal cord injury on the death certificate. The examiner further opined that it is less likely than not that the lumbar spine condition was related to the notation of spinal cord injury on the death certificate. The examiner reasoned that VA treatment notes report treatment for a cervical spinal cord injury C4 ASIA D (central cord) and that cervical degenerative disease is the likely cause of myelopathy which is the spinal cord injury. The August 2020 VA examination essentially restates the same conclusions as all prior VA examinations and opinions regarding the Veteran’s neck and back disabilities. Analysis What all these examinations have in common is that they fail to adequately address the main crux of the Veteran’s (and now the Appellant’s) assertions that he injured his neck and back in service to the extent that he experienced back pain and neck stiffness, which was then “worsened” (in the Veteran’s own words) by the at-work injury in 1969. The VA examiners mention that there are no reports of pain or treatment for neck or back injuries between the 1952 explosion and the 1969 work-related injury, but that fact alone is not a sufficient reason for not finding a causal link between the in-service event and the Veteran’s neck and back disabilities. It is reasonable to conclude that, after the explosion during wartime-active-duty training, any complaints the Veteran had regarding pain from the explosion (which threw him 10 to 15 feet into the air) could have been given less significant consideration at the time and under those circumstances. To date, no VA medical opinion has provided a sufficient explanation or rationale for why the Veteran’s neck and back were less likely than not injured in the explosion in service. The Board cannot speculate why such a medical opinion has not been forthcoming despite multiple attempts. Further, the Board finds no merit in remanding the claims for another attempt at obtaining an adequate opinion given that one has not been provided thus far. After careful consideration of all procurable and assembled evidence, a reasonable doubt has arisen regarding service origin of the Veteran’s disabilities, and as such, that doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Further, there is no medical evidence of record that specifically contradicts the Veteran’s competent and credible statements that he suffered neck and back symptoms since the explosion in service. Therefore, resolving all reasonable doubt in the Appellant’s favor, service connection for the Veteran’s neck and back disabilities is warranted, that is, they are causally related to his military service. Turning to the issue of the Veteran’s cause of death, the Board finds the August 2020 VA medical opinion to be highly probative. As noted above, the examiner opined that it is at least as likely as not that the cervical spine condition degenerative disease with myelopathy status post cervical decompression fusion is related to the notation of spinal cord injury on the death certificate. The examiner’s opinion is based on accurate facts and provides an adequate rationale for reaching its conclusions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (explaining that VA must read an examination report or opinion as a whole). Therefore, as the Board has found the Veteran’s neck and back disabilities are causally related to his military service, it follows that the Veteran’s cause of death is also related to his military service based on the August 2020 VA medical opinion. [CONTINUED ON NEXT PAGE] Accordingly, the Board finds that service connection for the cause of the Veteran’s death is warranted and DIC benefits based on this service connection are warranted. The Board expresses its deep condolences to the Appellant for the loss of the late Veteran and expresses its sincere appreciation for his honorable service to America. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.