Citation Nr: 21075207 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-14 922 DATE: December 17, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is granted. FINDING OF FACT The Veteran's cause of death was causally related to his service-connected disabilities. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for the Veteran's cause of death have been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.5, 3.312 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1975 to January 1991. The Veteran died in April 2016. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the Veteran's claims in a January 2020 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in January 2021 the Court partially vacated the January 2020 Board decision, granted a joint motion for partial remand, and returned the case to the Board for action consistent with the joint motion for partial remand. Cause of DeathLegal Criteria The Appellant seeks Dependency and Indemnity Compensation (DIC) benefits. Such benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran's death was from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of a veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Additionally, VA law and regulations generally preclude a grant of service connection for a disability that originated due to substance abuse, as that is deemed to constitute willful misconduct on the part of the Veteran. See 38 U.S.C. § 105; 38 C.F.R. § 3.301(d); see also, VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). There is a limited exception, however, when there is clear medical evidence that the alcohol or drug abuse is secondary to a primary service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Service ConnectionCause of Death Turning to the facts of the case, the Appellant contends that the Veteran's cause of death was etiologically related to his service-connected disabilities. The record establishes that the Veteran passed away in April 2016. The Veteran's death certificate notes the immediate cause of death as myocardial infarction with underlying causes of coronary artery disease, hypertension, hyperlipidemia, and obesity. The certificate also notes alcoholism as a significant contributing factor to death. At the time of death, the Veteran was service connected for the following disabilities: lumbar spondylosis, bilateral lower extremity radiculopathy, bilateral knee disabilities, bilateral ankle disabilities, a right hand disability, tinnitus, a right finger disability, and a bilateral hearing loss disability. The Appellant has not asserted that the Veteran incurred during service the cardiovascular disorders that caused his death. Rather, she contends the cardiovascular disorders resulted from the Veteran's service-connected musculoskeletal disabilities which prevented the Veteran from exercising. Other evidence suggests that the Veteran's service-connected musculoskeletal disabilities may have led to his depression, which then may have led to the alcohol abuse that also factored into death. In fact, during his lifetime, the Veteran asserted service connection for depression secondary to his musculoskeletal disabilities. Thus, the issue in the case is whether the Veteran's cause of death is related to his service-connected disabilities. In that regard, the record contains two VA medical opinions addressing the claim, dated December 2017 and January 2018. However, the Board notes that the January 2018 medical opinion was found to be inadequate in the Court's January 2021 Joint Motion for Partial Remand, and as such, it will not be discussed further. The December 2017 examining physician reviewed the causes of death as noted on the death certificate, reviewed the Veteran's multiple service-connected musculoskeletal disabilities, and opined that the Veteran's cause of death was less likely than not (less than a 50 percent probability) etiologically related to his service-connected disabilities. The rationale provided was that none of the service-connected disabilities were noted on the death certificate. Moreover, in response to the theory that the Veteran's service-connected disorders caused him to be unable to exercise which then led to cardiovascular disability, the examiner stated that: [w]hile it is likely that the [V]eteran[']s service-connected conditions limited the [V]eteran[']s ability to exercise, exercise by itself has been very ineffective in controlling/preventing conditions such as obesity, hypertension, hyperlipidemia. Further, the VA provides multiple programs to facilitate/encourage veterans with disabilities to exercise. Even with these programs, obesity has not been reduced/eliminated in veterans. The Appellant submitted a November 2021 nexus opinion from Dr. P.C., a private examiner. In the November 2021 medical opinion, after a review of the Veteran's medical record, service record, VA examinations, lay statements, and historical treatment records; Dr. P.C. opined that it was more likely than not (more than a 50 percent probability) that the Veteran's chronic pain caused by his service-connected disabilities were a direct cause of his depression, suicidal ideation, alcohol use, and obesity. Dr. P.C. opined that medical literature clearly shows a connection between chronic pain and the development of depression, in addition to an increased risk of developing alcohol use disorder. Further, Dr. P.C. noted that chronic pain patients are also at a higher risk for obesity and cardiovascular disease. Additionally, the examiner opined that the Veteran's service-connected disabilities resulted in his inability to perform any meaningful aerobic exercise which was "without a question a cause of the development of cardiovascular risk factors and a significant risk for cardiac related death." Dr. P.C. disagreed with the December 2017 VA examiner's findings and noted that the basis for the VA examiner's rationale was false as published medical literature is completely at odds with the VA examiner's conclusion that exercise is ineffective in controlling or preventing the conditions which contributed to the Veteran's death. Further, throughout Dr. P.C.'s opinion he cites to medical literature and studies which support his contentions. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board finds that the November 2021 private nexus opinion is more persuasive than the December 2017 VA examiner's opinion, and therefore assigns the private opinion greater weight. As noted above, the VA examiner's opinion found the Veteran's cause of death to be unrelated to his service-connected disabilities. However, the VA examiner failed to adequately support their rationale. The private examiner reviewed the Veteran's claim's file and medical history; offered an opinion regarding the cause of the Veteran's death; supported his opinion with citations to and explanations of relevant medical literature; and thoroughly refuted the contentions of the December 2017 VA examiner. The Board may afford greater weight to one opinion over another on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board affords the private opinion greater weight. Upon review of the record, the Board finds that service connection for the Veteran's cause of death is proximately due to or the result of his period of service. Specifically, his service-connected musculoskeletal disabilities were a contributary cause of the Veteran's death. In this respect, the death certificate lists the Veteran's cause of death as myocardial infarction with underlying causes of coronary artery disease, hypertension, hyperlipidemia, and obesity. The certificate also notes alcoholism as a significant contributing factor to death. Here, there is a credible and probative nexus opinions of record, in which, the physician opined that the Veteran's service-connected disabilities more likely than not led to his causes of death. Further, Dr. P.C. supported his opinions with citations to the Veteran's medical history and to current medical literature. Accordingly, resolving all reasonable doubt in the Appellant's favor, the Board concludes that the most probative evidence reflects that the Veteran's causes of death were related to his service-connected disabilities. As such, the Board finds that service connection for the cause of the Veteran's death is warranted. 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.") T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.