Citation Nr: 21022252 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-24 322 DATE: April 15, 2021 ORDER Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran died in February 2011. 2. The primary cause of his death was cardiac arrest, due to or a complication of hypotension, due to or a complication of sepsis, due to or a complication of intestinal ischemia, all of which were the resulting complications of colorectal carcinoma (colon cancer); a significant condition that contributed to his death was chronic obstructive pulmonary disease (COPD). 3. At the time of his death, the Veteran was in receipt of service connection for coronary artery disease (CAD) with a history of myocardial infarction (heart attack). 4. It is just as likely as not that a service-connected disability caused or contributed substantially or materially to his death.   CONCLUSION OF LAW Resolving all reasonable doubt in the Appellant-widow’s favor, the criteria are met for her entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran’s DD Form 214s show he had service from January 1961 to September 1961 and from May 1962 to July 1966. VA has determined that his service was from January 1961 to January 1967. He died in February 2011. The Appellant is his surviving spouse, so widow. This claim was previously before the Board in March 2018 and denied. In response, the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a May 2020 Memorandum Decision, the Court vacated the Board's decision denying this claim and remanded it back to the Board for further development in compliance with its directives, to include further analysis of the medical evidence. The Appellant-widow since has submitted a February 2021 supporting medical opinion from Dr. P.C., now allowing the Board to grant this claim To establish service connection for the cause of a Veteran’s death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 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).   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). 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.38 C.F.R. § 3.312(c)(3). 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. There are primary causes of death that, 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. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran’s death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury that was incurred in or aggravated by service or, in the alternative, is secondary to (meaning caused or aggravated by) a service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. Turning now to the relevant evidence in this case, the Veteran’s death certificate lists the cause of his death as cardiac arrest due to or as a consequence of hypotension, sepsis, and intestinal ischemia. Severe COPD was noted as a significant condition contributing to his death. At the time of his death, the Veteran was in receipt of service connection for CAD with history of myocardial infarction (MI), i.e., heart attack, evaluated as 30-percent disabling. An August 2013 VA medical examiner opined that the Veteran’s service-connected CAD with MI less likely than not caused or substantially contributed to his death. The examiner explained that a potential cause of the Veteran’s cardiac enzyme elevation, other than acute MI, was sepsis, and that an echocardiogram (ECG) on the day he died indicated his global left ventricle (LV) systolic function appeared grossly preserved. In a subsequent May 2017 opinion, a VA examiner added that the four “causes” of death listed on the death certificate are actually clinical findings due to the Veteran’s actual cause of death, which was colon cancer. The May 2017 clinician pointed out that the National Institute of Health (NIH) does not recognize herbicide or asbestos exposure as causes of colorectal cancer. This examiner also stated that, although the Veteran was in receipt of service connection for CAD with a history of MI, there is a lack of evidence that an MI actually took place, and the ECG on the date of his death showed no evidence of damage to his left ventricle caused by a MI and CAD. This examiner, therefore, found it less likely than not the Veteran’s death was caused by his service or a service-connected disability or that such substantially contributed to his death. A Baptist Cardiology Somerset record that VA considered in April 2018 reflects that a review of the Veteran’s chart showed that he had CAD with history of MI. Also, in the claims file is a supporting March 2018 medical opinion from Dr. T.S. surmising that the “rapidity of decline of [the Veteran’s] status [in February 2011] was most likely cardiac. His history of having two separate [MIs] are contributory to his cardiac history. Although it is difficult to know the exact chain of events leading to his death, it is my professional opinion that his cardiac status on admission had impact on his outcome during this episode of care.”   In the additional supporting medical opinion more recently submitted in February 2021, Dr. P.C. cited a 2007 empirical study finding patients with ischemic heart disease (IHD) or CAD, like the Veteran had, showed a significantly higher rate of colorectal cancer than similar controls. He also noted that, in 2014, another study of risk factors for colorectal neoplasm had concluded that the presence of CAD was an independent risk factor for the development of colon cancer, and that a 2016 meta-analysis and a 2019 study both had found that patients with CAD had a higher prevalence or risk for colorectal neoplasm. Dr. P.C. goes on to clarify that the Veteran’s normal left ventricle ejection fraction (LVEF) in February 2011 does not indicate healthy cardiac functioning because it is a poor diagnostic tool, and, instead, his diastolic dysfunction was a clear indicator that his CAD was active and affecting his cardiac conditioning around the time of his death. The examiner determined the Veteran had sepsis-induced cardiomyopathy (SICM), which is distinct from CAD, but the presence of CAD is a risk factor for developing both sepsis and SICM. Dr. P.C. therefore concluded that, in his “medical opinion, the veteran’s long history of CAD and diastolic dysfunction, more likely than not, resulted in his post-operative syndrome of sepsis-induced cardiomyopathy, and rendered him less able to resist the effects of septic shock, resulting in his death.” Essentially, it was Dr. P.C.’s opinion that the Veteran’s service-connected CAD with history of MI put him at greater risk for developing the ultimately terminal colon cancer and lessened his ability to fight off additional cardiac complications. Dr. P.C. cited to medical literature, including a study published after the 2017 VA opinion, tending to support his conclusions. In this circumstance of competing medical opinions, including where none is necessarily more probative (meaning more competent and credible) than another, the claim must be granted by resolving this reasonable doubt in the Appellant-widow’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (“a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. When, as here, the evidence is in relative equipoise, the claimant prevails. Therefore, resolving all reasonable doubt in the Appellant-widow’s favor, service connection for cause of the Veteran’s death is granted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.