Citation Nr: 21071468 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 20-17 745 DATE: November 30, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is granted. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1318 is dismissed as moot. FINDINGS OF FACT 1. The Appellant is the Veteran's surviving spouse. 2. In April 2018, the Veteran died of cardiac arrest due to ventricular fibrillation. 3. It is at least as likely as not that the Veteran's obstructive sleep apnea was a contributory cause of the Veteran's death. 4. The grant of service connection for cause of death renders the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 moot, and thus, the appealed issue is dismissed. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the requirements for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 2. The claim of DIC benefits under 38 U.S.C. § 1318 is dismissed as moot. 38 U.S.C. §§ 1318, 7104; 38 C.F.R. § 20.1106. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1951 to February 1953. He died in April 2018. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2018 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to service connection for the cause of the Veteran's death 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; 38 C.F.R. § 3.5. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such 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 is inherently one that is not related to the principal cause. In order for a service-connected disability to be determined as a contributory cause of a Veteran's death, it must be shown that it contributed substantially or materially; that it combined to cause death; or 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Prior to his death, the Veteran was service connected for obstructive sleep apnea (OSA), facial scars, residuals of left wrist fracture, residuals of fractured nose, and residuals of traumatic brain injury, including headaches, dizziness, and vertigo. In this case, the Veteran died in April 2018. According to his death certificate, the Veteran's cause of death was cardiac arrest due to ventricular fibrillation. Prior to his death, the Veteran was not service-connected for a heart disability. The Appellant primarily contends that the Veteran's service-connected disabilities were contributory in the cause of death. More specifically, the Veteran's cardiac arrest due to ventricular fibrillation was caused by his OSA. In support of this claim, the Appellant submitted an article, written by the American Heart Association, which discusses the connection between OSA and heart disease. Within the article, it states that "[t]he evidence is very strong for the relationship between sleep apnea and hypertension and cardiovascular disease generally." Further, it notes that OSA prevents restful sleep and is associated with high blood pressure, arrythmia, stroke, and heart failure. The Appellant was afforded a VA examination in February 2020 to determine whether the Veteran's service-connected disabilities contributed to the cause of his death. The examiner detailed the Veteran's lengthy medical history as well as the Appellant's contentions. He opined that based on review of body of evidence and relevant medical literature and in accordance with accepted medical principles, that it is less likely than not that Veteran's service-connected disabilities (OSA, facial scars, residuals of left wrist fracture, residuals of fractured nose, and residuals of traumatic brain injury) individually or in combination, contributed to his death or aided or lent assistance to the production of death. In further support of this conclusion, the examiner stated that OSA causes damage to the right side of the heart, and prior to his death, the Veteran's records are silent for any right heart damage. And six days prior to the Veteran's death, a cardiologist note reports that the Veteran had a dramatic drop in functioning of his left heart, which is known to be one of the major causes of ventricular fibrillation. Lastly, the examiner opined that it is less likely than not that Veteran's service-connected conditions resulted in debilitating effects and general impairment of health to the extent that it rendered the Veteran less capable of resisting the effects of either disease or injury primarily causing death; and/or whether it was of such severity as to have a material influence in accelerating death. In support of her argument, the Appellant submitted a private medical opinion, dated September 2021. The doctor, Dr. D.S., opined that the Veteran's OSA is as likely as not a major contributing cause of his death from cardiac arrest and ventricular fibrillation, and it indirectly causative as it led to poor oxygenation at night as well as to a more sedentary lifestyle due to fatigue and poor concentration. Further, Dr. D.S. opined that the Veteran's OSA was a direct contributing factor in inducing arrythmias by poor nocturnal oxygenation and prolonging the QT interval, which produced fatal arrhythmias. In support of the stated conclusions, Dr. D.S. cited the Veteran's 40-foot in-service fall, which lead to difficulties with ambulation for the rest of the Veteran's life. And the Veteran was unable to walk and ambulate for the last 12 years of his life due to the comorbidities related to his fall. Additionally, Dr. D.S. cited studies which found that OSA leads to impaired quality of life, and is associated with an increased risk of hypertension, myocardial infarction, stroke, heart failure, and metabolic syndrome, depression, and motor vehicle accidents. And OSA leads to a more sedentary lifestyle, which is linked to type 2 diabetes and cardiovascular disease. Also, Dr. D.S. noted that the Veteran passed from cardiac arrest due to ventricular fibrillation, and there are several studies that support the development of cardiac arrythmias and death due to OSA. The June 11, 2013 edition of the American College of Cardiology states "moderate case of obstructive sleep apnea can significantly increase a person's risk for sudden cardiac death, an often-fatal condition where the heart stops beating and must be immediately treated." And OSA also increases incidence of fatal cardiac arrythmias in the daytime as well as the night. Also, Dr. D.S. cited four additional studies, which supported the findings and conclusions. One such article noted that OSA increases risks for cardiovascular disease independently of individuals' demographic characteristics or risk markers (i.e., smoking, alcohol, obesity, diabetes, dyslipidemia, atrial fibrillation, and hypertension). Lastly, Dr. D.S. opined that the Veteran's OSA, along with his other service-connected disabilities, placed the Veteran at significant risk for death, as the lack of exercise activity in those with OSA is associated with fatigue, depression, higher blood pressure, and higher levels of the inflammatory biomarker CRP. In weighing the opinions of both Dr. D.S. and the February examiner, the Board is most persuaded by Dr. D.S.'s opinion. Dr. D.S.'s opinion is based on the review of the entire record, as well as a number of medical studies, which support the conclusion that the Veteran's OSA was a contributory cause of the Veteran's death. Therefore, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's OSA was at least as likely as not a contributory cause of death. The Board resolves reasonable doubt in favor of the Appellant and grants the claim of entitlement to service connection for the Veteran's cause of death. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") 2. Entitlement to DIC under the provisions of 38 U.S.C. § 1318 is dismissed as moot. Because the Board has granted entitlement to service connection for the cause of the Veteran's death, the remaining claim of entitlement to DIC under the provisions of 38 U.S.C. § 1318 has been rendered moot as DIC benefits granted to a surviving spouse under 38 U.S.C. § 1318 would be paid in the same manner as if the Veteran's death were service-connected. 38 U.S.C. § 1318(a); see also 38 C.F.R. § 3.22. As such, the claim is dismissed. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.