Citation Nr: 21006475 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-29 553 DATE: February 4, 2021 ORDER Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran passed away in November 2012; his cause of death was listed as carcinoma of the liver. 2. The evidence of record is at least in equipoise as to whether the Veteran’s service-connected disability materially contributed to his cause of death. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Appellant, the criteria for service connection of the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service with the United States Army from January 1954 to November 1955. In October 2012, a Department of Veterans Affairs (VA) Regional Office (RO) issued a rating decision granting the Veteran a ten percent rating for asbestosis with pleural plaques. The Veteran filed a Notice of Disagreement in November 2012 for an increase in his rating. See NOD received November 2012. However, in November 2012, the Veteran also passed away. In December 2013, the Veteran’s surviving spouse (Appellant) filed a claim for Dependency and Indemnity Compensation (DIC), Death Pension and Accrued Benefits for a Surviving Spouse. See VA 21-0847 and VA 21-534 received December 2013. In April 2019, the Board issued a decision which denied entitlement to service connection for cause of the Veteran’s death. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Appellant and the Secretary of the Veterans Affairs (collectively, as parties) filed a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board’s April 2019 decision and remand the matter for further consideration and instructions consistent with the JMR. The JMR stipulated that the Board failed to provide the Appellant a second, post-remand hearing as requested by the Appellant. The Court granted the JMR in January 2020. In October 2020, the Appellant through their representative requested the curriculum Vitae (CV) of the VA examiner. See Third Party Correspondence received October 2020, and November 2020. The Appellant testified at a virtual hearing before the undersigned Veteran Law Judge (VLJ) in November 2020. A transcript of the hearing is associated with the claims file. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). The Appellant contends that the Veteran’s service-connected lung condition asbestosis caused or contributed to his death because the Veteran was not capable of resisting the effects of his other medical conditions causing his death. At both hearings, the Appellant reported that the Veteran generally had difficulty breathing. In the alternative the Appellant contends that the Veteran’s Hepatitis C infection was a direct result of his service and was also a cause or contributing factor to the Veteran’s liver carcinoma. The Appellant reported the Veteran was shot gun vaccinated during service. She also testified that the Veteran received tattoos while in service and had no risk factors of being infected with Hepatitis C after service. The Board further notes that prior to the Veteran’s death, he stated that he contracted Hepatitis C while in Korea during service. He also stated that he received all his tattoos in 1954. See VA 21-0820 Report of General Information, and Correspondence received February 2012; VA 21-4138 Statement in Support of Claim received June 2012. The Veteran’s death certificate listed the immediate cause of death as carcinoma of the liver. The physician that signed the Veteran’s death certificate did not perform an examination or autopsy. See Death Certificate received June 2014. The medical evidence of record indicates that the Veteran was diagnosed with several respiratory disorders, but only asbestosis with pleural plaques were service connected. In June 2017, a private orthopedic surgeon stated that the Veteran had asbestosis with interstitial fibrosis and COPD. The doctor opined that the Veteran’s pulmonary conditions were considered a contributing causal factor in the Veteran’s death. See Correspondence received June 2017. In October 2018, a VA examiner, a primary care provider, stated that he consulted with a pulmonologist. The VA doctor opined that it is less likely than not that the Veteran’s hepatocellular carcinoma was caused by, the result of, or permanently aggravated beyond the normal course of the condition by his service-connected asbestosis with pleural plaques. The doctor also opined that it was less likely as not that the Veteran’s service-connected asbestosis with pleural plaques was a principal, or contributory cause of the Veteran’s death. See C&P Exam received October 2018. Although the VA examiner provided a very detailed summary of treatment records and some medical research, essentially the rationale provided was that the VA examiner consulted with another doctor. See C&P Exam received October 2018. At this time, the record does not contain the CV for the VA doctor who provided these opinions. In November 2020, a private doctor reviewed the Veteran’s military and VA medical records. The doctor noted that the Veteran had pleural plaques as well as emphysema. The Veteran was a smoker. The doctor opined that the Veteran’s combination of pulmonary conditions clearly weakened his ability to deal with his other medical conditions. The doctor explained that the Veteran’s pulmonary status was compromised. The doctor opined that asbestosis resulted in debilitating effects and general impairments of the Veteran’s health that left him less capable of resisting the effects of his other medical conditions causing his death. See Third Party Correspondence received November 2020. As noted above, service connection of the Veteran’s death maybe found if the service-connected disability made the Veteran materially less capable of resisting the effects of his cancer. See Lathan v. Brown, 7 Vet. App. 359 (1995). Both the private opinions supplied a reasonable rationale that pulmonary conditions did contribute to his overall death. Moreover, the Appellant, the Veteran’s wife also reported that the Veteran generally had trouble breathing. See Hearing Transcript received November 2020 and April 2017. The Board finds that the evidence is approximately evenly balanced as to the issue of whether the Veteran’s service-connected disability caused or contributed substantially or materially to the cause of the Veteran’s death. When there is an approximate balance of positive and negative evidence on any issue material to the determination, the benefit of the doubt is afforded the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, service connection for the cause of the Veteran’s death is granted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.