Citation Nr: 21015868 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 07-16 730 DATE: March 18, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in March 2006. The death certificate lists the immediate cause of death as bilateral pneumonia –mixed bacterial. Other significant conditions contributing to death but not resulting in the underlying cause were dilated cardiomyopathy, renal failure, dementia, and atherosclerotic cardiovascular disease. 2. At the time of his death, service connection was in effect for a back disability and malaria. 3. Resolving doubt in favor of the appellant, the Veteran’s death was due to his service-connected back disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 1110, 1112, 1131, 1310, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1944 to January 1946. He died in March 2006. The appellant is his widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case has an extensive procedural history. Most recently, in December 2018, the Board denied entitlement to service connection for the cause of the Veteran’s death. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in June 2019, the Court granted the parties’ joint motion for remand (JMR) thereby vacating and remanding the Board’s decision for readjudication. Pursuant to the JMR, the parties agreed that the Board failed to ensure compliance with the prior May 2015 JMR and erred when it did not provide adequate reasons and bases for finding that service connection for the cause of the Veteran’s death was not warranted. In December 2019, the Board remanded the matter for additional development, to include obtaining a medical opinion addressing whether the Veteran’s service-connected back disability caused him to be in such poor health that he was made more likely to contract pneumonia. In the interest of judicial economy, the Board will focus the current analysis on the merits of new evidence, and the Board hereby incorporates all other facts and analysis of the July 2011, June 2013, and December 2018 vacated Board decisions by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). In April 2009, the appellant testified before a Veterans Law Judge (VLJ). While the matter was pending, the VLJ who conducted this hearing retired. In December 2020, the appellant was informed that the VLJ who conducted the April 2009 hearing had retired and of her right to request another hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In March 2021, the appellant through her representative indicated that she did not wish to have an additional hearing; therefore, the Board will continue with adjudication of her appeal. The appellant seeks to establish service connection for the cause of the Veteran’s death. She has maintained that service connection for the cause of the Veteran’s death is warranted because (1) the severity of the Veteran’s service-connected back disability rendered him so debilitated that he was made more susceptible to contracting pneumonia, his ultimate primary cause of death; or (2) that the Veteran’s long-term use of non-steroidal anti-inflammatory drugs (NSAIDs) and narcotic pain medication to treat his service-connected back disability, caused a heart disability that was a contributory cause of his death. Given the particular circumstances of this case, the Board finds that service connection for the cause of the Veteran’s death is warranted due to the Veteran’s service-connected back disability and, thus, for the sake of judicial economy will confine its analysis to that specific theory of entitlement. See May 2006 statement. Service connection for the cause of the Veteran’s death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110, 1112, 1131. A service-connected disability is the principal cause of death when that 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). 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. 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)(1). In this case, the Veteran’s death certificate states that he died in March 2006. The Veteran’s death certificate lists the immediate cause of death as bilateral pneumonia – mixed bacterial. Other significant conditions contributing to death but not resulting in the underlying cause were listed as dilated cardiomyopathy, renal failure, dementia, and atherosclerotic cardiovascular disease. See April 2006 autopsy report. At the time of his death, the Veteran was service-connected for lumbosacral spine degenerative joint and disc disease (60 percent) and malaria (noncompensable). He was also in receipt of a total disability rating based on individual unemployability. As to whether a service-connected disability caused or contributed to the Veteran’s death, there is no competent evidence of record to link the Veteran’s cause of death to his service-connected malaria, and the appellant has not made such contentions. Thus, service connection on this basis is not warranted. In an April 2001 letter, Dr. R.W. noted that the Veteran’s service-connected back disability impacted his ability to get up and out of a normal chair and that he used a lift-chair at home. Dr. R.W. determined that the Veteran’s “pain, back stiffness, and generalized arthritis have almost completely immobilized him.” A May 2001 VA examination revealed “markedly diminished range of motion...The Veteran[’]s lumbar spine examination reveals a frozen lumbar spine.” The examiner noted that the Veteran’s advanced osteoarthritis of the lumbar spine resulted in diminished ability to ambulate. See also September 2003 VA examination. An August 2004 private examination for housebound status noted that the Veteran’s ability to move was limited by his dementia and his service-connected back disability. The Veteran was granted total disability individual unemployability based on his “markedly diminished range of motion and that he needed assistance with sitting up and ambulating.” See September 2005 rating decision. An October 2005 examination for housebound status noted that the appellant rolled the Veteran side to side hourly, even during the night. The appellant testified that the Veteran’s back disability prevented him from rolling himself over in his hospital bed. See April 2009 Hearing at 4. Further, she testified that based on the Veteran’s doctor’s instructions, she rolled him over every 15 to 30 minutes and propped him up with pillows. Id. A review of the Veteran’s treatment record show that he was treated for pneumonia in March 2005, October 2005, and February 2006. A June 2006 letter, from the Veteran’s treating physician, Dr. J.S. opined that the Veteran’s “increasing debility and weight loss to skeletal level did not allow him to maintain himself for postural reasons while bedridden and because of reducing immunity he developed several pneumonias…” In March 2020, a VA examiner opined that the Veteran’s back disability was a less likely cause for the Veteran to become confined to the bed. The examiner determined that the Veteran’s Alzheimer Disease or normal pressure hydrocephalus with the main symptoms of loss of balance, incontinence and dementia were the more likely cause of the Veteran losing his ability to function and physical deconditioning. In November 2020, following a review of the Veteran’s medical records, Dr. S.Y. opined that the Veteran’s “severe lumbosacral degenerative joint and disc disease over time rendered him increasingly immobile and bed bound making him very susceptible to the pneumonia which was the cause of his death.” Dr. S.Y. explained that the pneumonia that resulted in the death of the Veteran was associated with the likely adverse respiratory system effect of his immobility which includes the thickening of respiratory secretions and an increased inability to expectorate them. Essentially, in this case, the March 2020 VA opinion stands against Dr. S.Y.’s November 2020 opinion. In this case, all of the opinions are factually accurate, fully articulated, and gave a thorough review of the medical records reviewed in reaching their respective conclusions. Each opinion is also offered by a well-qualified medical professional. Moreover, the opinions offer sound reasoning to support their conclusions. Based on the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s service-connected back disability contributed to his fatal pneumonia. Thus, resolving all reasonable doubt in the appellant’s favor, entitlement to service connection for the cause of the Veteran’s death is established. Accordingly, the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.