Citation Nr: 21021328 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-00 327 DATE: April 12, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits, including service connection for the cause of the Veteran’s death, is granted. FINDINGS OF FACT 1. The Veteran died in November 1993. 2. His death certificate shows that his immediate cause of death was cardiac arrest caused by ventricular arrythmia and possible myocardial infarction (heart attack). 3. It is at least as likely as not he had posttraumatic stress disorder (PTSD) as a result of his combat experiences during World War II that, in turn, contributed substantially and materially to his heart ailments and eventual death. CONCLUSION OF LAW Resolving all reasonable doubt in the widow-Appellant’s favor, the criteria are met for her entitlement to DIC benefits, including especially for service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1131, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1942 to June 1949 and from July 1949 to August 1966 – including in combat during World War II, for which he was awarded the Air Crew Insignia with two stars. He died in November 1993. The appellant is his surviving spouse, so widow. She appealed to the Board of Veterans’ Appeals (Board) from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board reopened this cause of death claim because there was new and material evidence since a prior March 2009 Board decision earlier considering and denying this claim. However, rather than immediately readjudicating this claim on its underlying merits, the Board instead remanded this claim back to the RO for further development – including to try and reconcile conflicting medical opinions concerning whether a service-connected disability had caused or contributed substantially or materially to the Veteran’s death. Entitlement to DIC benefits, including especially service connection for the cause of the Veteran’s death The widow-appellant contends that she is entitled to DIC benefits, especially to service connection for the cause of the Veteran’s death, because a service-connected disability caused or contributed substantially or materially to his death. DIC is payable when a Veteran died from a service-connected disability or a disability entitled to service connection. See 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. 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). A principal cause of death is one that, singularly 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 one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown there was a causal connection. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or an injury; and (3) evidence of a nexus between the disease or injury in service and death. See also more generally 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Turning now to this case at hand, to try and show the required correlation between the Veteran’s death and a service-connected disability, the Appellant-Widow has submitted multiple medical opinions positing that the Veteran had PTSD as a result of his service and that it, in turn, contributed substantially and materially to his ultimately fatal coronary heart disease (CAD). His service personnel records (SPRs) show that he was awarded the Air Crew Insignia with two stars in April 1944 in recognition of his combat service during World War II. Subsequent service treatment records (STRs) show he was prohibited from flying due to “flight fatigue” and “operational fatigue”. In an August 2007 opinion, a reviewing clinician commenting on this case pointed out the Veteran’s documented nervousness and recurrent flashbacks are typical of PTSD, also that he had emotional outbursts later in life. This commenting clinician then went on to link the Veteran’s PTSD with his subsequent heart disease and death by citing a study correlating PTSD with heart attacks and deaths from CAD. Another opinion from a private examiner dated in December 2011 agrees with that earlier opinion. This other examiner also believed that it was at least as likely as not the Veteran had PTSD as a result of his military service and that his PTSD, in turn, contributed substantially and materially to his heart disease and subsequent death. The Appellant-Widow also submitted yet another supporting opinion from a private examiner in June 2014. This examiner reaffirmed the Veteran met the diagnostic criteria for PTSD based on his documented combat history, STRs, and lay statements from his family. This examiner did not provide any opinion regarding the posited link between the Veteran’s PTSD and his death. Primarily because of the difference of opinion between those clinicians supporting the claim and a VA examiner that previously had commented on this case in 2008, but conversely against the claim, the Board remanded this claim back to the RO in May 2018 to obtain still more medical comment that perhaps could reconcile this conflict. An additional VA examiner concluded in April 2019, on remand, that the Veteran did not have PTSD – so from this the deduction is that this condition did not cause or contribute substantially or materially to the CAD that he, in turn, died from. But this VA examiner seemingly discounts out of hand the lay statements regarding the Veteran’s behavior and downplays the documentation of his “flight fatigue” and “operational fatigue” while in service. It therefore cannot be concluded that the VA examiners’ opinions against the claim are any more probative (competent and credible) than the private examiners’ opinions contrarily supporting the claim. So, it is as likely as not the Veteran had PTSD because of his combat experiences in service, during World War II. See 38 C.F.R. § 3.304(f)(2). Moreover, it also is as likely as not the PTSD due to his service, in turn, contributed substantially or materially to his eventual death since, at the very least, his PTSD aggravated his terminal CAD even if it did not necessarily cause it. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).   The Appellant-Widow resultantly is entitled to derivative DIC benefits based on service connection for the cause of the Veteran’s death. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.