Citation Nr: 21010643 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-31 412 DATE: February 25, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran’s service-connected hearing loss and tinnitus was either a principal or contributory cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1310, 1311, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1952 to October 1953. The appellant is the Veteran’s surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service connection for the cause of the Veteran’s death is denied. The Appellant contends that the Veteran’s service-connected hearing loss and tinnitus contributed materially to the Veteran’s death. She contends that the Veteran was electrocuted while using a power tool while standing in water. She stated that she tried to warn him of the danger, but he was unable to hear the warnings because of his hearing loss. Death benefits are payable to the surviving spouse, children, and parents of a Veteran who dies from a service-connected disability. 38 U.S.C. § 1310. In order to establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service-connected disability casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and a Veteran’s death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. See 38 C.F.R. § 3.312(c)(4). At the appellant’s December 2020 Board hearing, it was revealed that the Veteran was working with a power tool and an electrical cord. The cord was wet. As the Veteran went to insert it into a power socket, the appellant and son were hollering not to do it. She contends that as a result of the Veteran’s service-connected hearing loss and tinnitus, he was not able to hear their warnings. He inserted the cord and was electrocuted. The Veteran’s son stated that the cord was wet because the Veteran had been standing in water because it had rained the previous day. He also stated that the Veteran could not hear them because there was an air compressor running in the background. The appellant testified that the Veteran had his back to them, and that when he had his back towards someone, “you could be within three feet of him and he could not hear you.” In a written statement, the Veteran’s son stated that the Veteran had been building a frame for a bay window. In so doing, the Veteran would plug the saw in, make a cut or two, then unplug the saw. He unplugged the saw each time because he was afraid that the Veteran’s three-year-old grandson would try to use the saw. In a September 2003 written statement, a neighbor (E.T.) stated that the Veteran had been working all day, building a frame for a bay window. He stated that he (E.T.) was assisting the Veteran and that on numerous occasions, the Veteran would plug the saw in and then unplug it for safety reasons. Later that day, the Veteran was found lying on the ground, unconscious, with the cord underneath him and his hand on the end of the cord. In a September 2003 statement, R.K. stated that he was on the Veteran’s property when the Veteran’s son found him lying on the ground, with a power cord in his hand. The medical treatment reports reflect that according to bystanders, the Veteran had been working in the yard all day and that the family had not been around all day. The family stated that when they arrived home, the Veteran was in the yard working. Two minutes later, they found the Veteran down. CPR was administered immediately. The clinical impression was that the Veteran had “cardiac arrest—possible [secondary to] cardiac origin.” The Veteran’s death certificate reflects that the Veteran died on September [REDACTED], 2003. It states that the Veteran’s cause of death was arrhythmia, due to coronary artery disease (CAD), possible electrocution injury. It also listed tobacco abuse and hyperlipidemia as contributory causes of death. A further description on the death certificate states, “possible electrocution from power cord causing arrythmia—not investigated because the possibility wasn’t raised until several days after death occurred.” The Board notes that the Veteran’s only service-connected disabilities were hearing loss and tinnitus. There is no evidence, or contention, that either of these disabilities physically caused the Veteran’s arrythmia or cause of death. The argument put forth by the appellant is that the Veteran would be alive but for his service-connected hearing loss and tinnitus. Despite being an interesting argument, the Board does not agree. The Board notes that the various statements are somewhat at odds with each other. Multiple statements reflect that the Veteran had been working all day and that he had been plugging in a power tool and then unplugging it for safety reasons (so that the Veteran’s grandson would not use the saw). The medical report, however, reflects that the family had not been around the Veteran all day. Additionally, the hearing testimony suggests that the appellant and the Veteran’s son were hollering to the Veteran not to plug in the power tool. He did not hear the urgent warnings and was electrocuted. The medical evidence, however, again reflects that the family was not home, and that two minutes after they arrived home, they “found” the Veteran lying on the ground unconscious. Finally, that the Veteran was electrocuted at all is in doubt. The death certificate only states that electrocution was “possible,” but that it was not investigated because the possibility was not raised until several days after the Veteran’s death. The Board finds that even if one limits consideration to the facts most favorable to the appellant, the causal connection is far too tenuous for the Veteran’s hearing loss and tinnitus to be a contributory factor in the Veteran’s death. Even with perfect hearing, it is questionable as to whether the Veteran would have heard the warnings of the family over the air compressor that was running in the background. Moreover, it is questionable that the Veteran would have heeded the warnings even if he heard the appellant. The Veteran had been working all day apparently without incident, including with the assistance of E.T., and was most likely aware that the cord was wet. Consequently, the Board cannot find that death of the Veteran would not have occurred but for his service-connected disabilities. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim for service connection for cause of death of the Veteran, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Appellant’s appeal for service connection for the cause of death of the Veteran is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.