Citation Nr: 21074879 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-43 384 DATE: December 16, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT 1. The Veteran died in March 2012. His death certificate lists the cause of death as ischemic cardiomyopathy. 2. At the time of his death, the Veteran was service-connected for history of arterial reconstruction secondary to traumatic injury of left lower extremity, to include peripheral vascular disease (PVD) and peripheral artery disease (PAD). 3. The evidence is at least in equipoise as to whether the Veteran's PVD and PAD contributed materially to his death and rendered him materially less capable of resisting the effects of ischemic cardiomyopathy. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1978 to December 1981. He died in March 2012. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in May 2013. In a November 2018 decision, the Board, in relevant part, denied service connection for the cause of the Veteran's death. The Appellant appealed the decision to the United States Court of Appeal for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR) which, in relevant part, vacated the Board's November 2018 denial of service connection for the cause of the Veteran's death and remanded the matter to the Board. In an August 2020 decision, the Board again denied service connection for the cause of the Veteran's death. The Appellant appealed the Board's decision to the Court, which granted a JMPR in May 2021. The Court vacated the Board's August 2020 denial of service connection for the cause of the Veteran's death and remanded the issue to the Board. Entitlement to service connection for the cause of the Veteran's death Dependency and indemnity compensation (DIC) benefits may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C. § 1310; see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). DIC benefits are thus predicated upon an adjudicatory finding that service connection for the cause of the veteran's death is warranted. Before an award of DIC may be made, therefore, service connection for the cause of the veteran's death must be established. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially or materially to the veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. In claims for benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Appellant asserts that she is entitled to DIC benefits because the Veteran's death was related to his service-connected disabilities, particularly his history of arterial reconstruction secondary to traumatic injury of the left lower extremity. The Veteran's death certificate lists the cause of death as ischemic cardiomyopathy. At the time of his death, he was service-connected for the following disabilities: depression; history of arterial reconstruction secondary to traumatic injury of left lower extremity, to include peripheral vascular disease (PVD); neuropathy of the left and right common peroneal nerves; right knee degenerative joint disease; posttraumatic degenerative disc disease of the lumbar spine; limitation of flexion of the left and right hips; and limitation of internal rotation of the bilateral hips. A VA treatment note from February 2012 indicates that the Veteran had advanced heart failure but was not a candidate for a heart transplant or left ventricular assist device (LVAD) surgery due to his PVD. Another February 2012 treatment note states that the Veteran's PVD was the most significant issue preventing him from undergoing a heart transplant and that "the conversation would change" if his PVD were controlled. He subsequently died in March 2012. In February 2019, the Appellant submitted a medical opinion from Dr. T.D., M.D., a cardiologist. Dr. D. opined that it is at least as likely as not the Veteran's service-connected disabilities contributed to his death from ischemic cardiomyopathy and also prevented him from being a candidate for life-saving treatments. He first stated that the Veteran's service-connected left lower extremity disability prevented him from exercising and being physically active, and that physical inactivity is a recognized risk factor for coronary heart disease and cardiovascular disease. He also indicated that the Veteran's PVD barred him from undergoing surgeries for his worsening ischemic cardiomyopathy, citing the VA treatment records indicating that his PVD made him a poor candidate for heart transplant and LVAD procedures. Dr. D. provided an addendum medical opinion in October 2021. He reiterated his opinion that it is at least as likely as not that the Veteran's peripheral artery disease (PAD), which he stated is interchangeable with PVD, contributed significantly to his death from ischemic cardiomyopathy. He stated that PAD has significant effects on vital organs, including the heart, brain, and kidneys, regardless of where the PAD is localized. Dr. D. indicated that the Veteran's PAD prevented him from exercising in the last decade of his life, which significantly increased the risk of worsening his heart problems. He also stated that the Veteran's PVD precluded him from undergoing heart surgeries that "very likely" would have saved his life. He In sum, Dr. D. opined that the Veteran's PAD affected a vital organ, contributed significantly to his death from ischemic cardiomyopathy by rendering him incapable of physical activity, and made him ineligible for procedures that likely would have prevented his death from ischemic cardiomyopathy. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, including PAD/PVD, contributed substantially to cause his death from ischemic cardiomyopathy and rendered him materially less capable of resisting the effects of his ischemic cardiomyopathy. In this regard, the evidence demonstrates that his PVD precluded him from undergoing a heart transplant and/or LVAD surgery. According to Dr. D.'s medical opinions, these procedures likely would have prevented the Veteran's death from ischemic cardiomyopathy. The evidence also indicates that the Veteran's service-connected disabilities severely impaired his ability to engage in exercise or physical activity, which furthered the heart problems that eventually caused his death. Therefore, the Appellant has demonstrated that the Veteran's service-connected left lower extremity disability was a contributory cause of his death from ischemic cardiomyopathy and the criteria for service connection have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.