Citation Nr: 21014294 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-53 959 DATE: March 11, 2021 ORDER Entitlement to service connection for cause of death is granted. FINDINGS OF FACT 1. The Veteran's April 2018 death certificate listed his immediate cause of death as respiratory failure with metastatic pancreatic cancer as significant condition contributing to death, but not resulting in the underlying cause given. 2. The most probative evidence shows that service-connected schizophrenia was a contributory cause of the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1978 to May 1979. He died in April 2018, and the appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for cause of death. The appellant timely appealed. In March 2021, the appellant testified before the undersigned Veterans Law Judge during a Virtual Board hearing. A transcript of that hearing is not necessary given that the Board is granting the benefit sought in full. Entitlement to service connection for cause of death Pursuant to 38 U.S.C. § 1310, Dependency and Indemnity Compensation (DIC) is paid to a surviving spouse of a qualifying Veteran who died from a service-connected disability. Darby v. Brown, 10 Vet. App. 243, 245 (1997); 38 U.S.C. § 1310(a); 38 C.F.R. § 3.5(a)(1). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). In determining whether the disability that resulted in the death of a Veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). 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; 38 C.F.R. § 3.102. The Veteran’s death certificate lists his immediate cause of death as respiratory failure with an unknown interval between onset and death. No contributory causes are listed. A significant underlying condition was identified as metastatic pancreatic cancer. During his lifetime, the Veteran was service-connected for schizophrenia with a 100 percent disability rating from December 22, 2011. In May 2018, Dr. L. furnished a medical opinion in support of the claim. He reported being the Veteran’s treating VA psychiatrist from May 2014 until March 2018 for service-connected schizophrenia. He stated that the Veteran had been hospitalized for psychosis, suicidality, and opiate relapse, ten times between 2012 and 2015. Medication substantially improved his function beginning in December 2015, although the Veteran continued to have some difficulty with medication compliance. Dr. L considered that the Veteran’s death certificate listed the cause of death as respiratory failure. However, he opined that the Veteran’s death was related to service-connected schizophrenia. He explained that antipsychotic medication had to be stopped for pancreatic cancer treatment. When he last saw the Veteran in March 2018, he appeared in relatively good health. It appeared improbable that the respiratory failure occurring the following month would be related to the long term effects of pancreatic cancer. It appeared more likely the Veteran’s respiratory depression was related to self-inflict opiod overdose due to overwhelming anxiety, depression, opiate relapse, psychosis or some combination thereof. In June 2018, a VA physician furnished a negative medical opinion based upon review of the claims folder. He reported that the Veteran’s death certificate listed an April 2018 date of death with respiratory failure as the immediate cause with metastatic pancreatic cancer as a contributory cause. The manner of death was described as natural and medical records indicated a 60 pack year tobacco use history. Review of the medical literature listed tobacco use as a major risk factor for pancreatic cancer and was silent as to schizophrenia being a risk factor. For the following reasons, service connection for cause of death is warranted. The Board considers the May 2018 medical opinion from Dr. L to be highly probative. Dr. L is qualified as a psychiatrist and has extensive familiarity with the Veteran’s schizophrenia symptoms as the treating clinician for several years up to the Veteran’s death. He provided a detailed explanation for his positive medical opinion. Accordingly, Dr. L’s May 2018 medical opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board attaches less probative value to the June 2018 VA medical opinion. Id. The VA physician did not address Dr. L’s May 2018 medical opinion. His opinion does not otherwise counter Dr. L’s report that the Veteran was unlikely to be experiencing respiratory distress as an effect of long term pancreatic cancer. Rather, his rationale narrowly focuses on pancreatic cancer risk factors identified in the medical literature. With these considerations, it has less probative value. Id. For the reasons set forth above, the Board finds that the evidence is at least evenly balanced as to whether service-connected schizophrenia was a contributory cause of death for the Veteran. Thus, resolving reasonable doubt in the appellant's favor, the Board finds that service connection for cause of death is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.