Citation Nr: 21025463 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-07 158 DATE: April 28, 2021 ORDER Dependency and indemnity compensation based on service connection for the cause of the Veteran's death is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran’s death was related to his service or service-connected back, lower extremity radiculopathy, hearing loss, or tinnitus. CONCLUSION OF LAW The criteria for dependency and indemnity compensation based on service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1951 to August 1954. He passed away in November 2014. The Appellant is his surviving spouse. 1. Dependency and indemnity compensation based on service connection for the cause of the Veteran's death A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or assisted in the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate that the disability that caused the Veteran’s death should have been service-connected. 38 C.F.R. § 3.312. To establish service-connection, an appellant must show “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” – the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. After a review of the record, the Board finds the criteria for service connection for the cause of the Veteran’s death have not been met. 38 C.F.R. §§ 3.303, 3.312. The Veteran’s death certificate shows his cause of death as acute myocardial infarction with no other secondary or contributing causes. At the time of his death, the Veteran was service connected for lumbosacral strain (back), right and left lower extremity radiculopathy, hearing loss, and tinnitus. During the November 2019 hearing, the Appellant asserted that the Veteran’s lower extremity radiculopathy had vascular involvement, which contributed to his heart attack and death. Neither the Appellant nor the Board has the requisite medical training or education to determine the cause of the Veteran’s myocardial infarction and whether it was related to radiculopathy, as it is a determination of medical complexity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board requested a medical opinion on remand. In February 2020, the medical expert reviewed the claims file and opined that the Veteran’s service-connected disabilities less likely than not contributed to his death. The expert noted that the Veteran’s death certificate classified his death from acute myocardial infarction as natural with no other contributing conditions. The expert explained that although the Appellant contends the Veteran’s lower extremity radiculopathy had vascular involvement that was related to his myocardial infarction, there is no evidence to support such a finding. Specifically, the expert noted medical records were silent for any evidence or diagnosis of varicose veins, which could contribute to the cause of death and that he was unaware of any evidence-based medical literature or evidence in medical records that would support the Veteran’s service-connected disabilities, including radiculopathy, predisposing him to acute myocardial infarction. Instead, the expert noted medical records show hypertension, tobacco use, diabetes, coronary artery disease, and mixed hyperlipidemia, which are all well known risk factors in the development of myocardial infarction. The expert pointed to the notation on the Veteran’s death certificate, which identified him as having diabetes. The examiner explained that it is not uncommon for an individual with diabetes to be at an increased risk of developing acute myocardial infarction. As noted, this medical opinion is the only competent evidence on the question of a relationship between the Veteran’s service-connected radiculopathy and his death from myocardial infarction. The Board finds the expert’s opinion highly probative as it included detailed rationale for the conclusion and is consistent with the other evidence of record. Indeed, VA treatment records show the Veteran had diabetes mellitus II, hypertension, coronary artery disease, hyperlipidemia, and a history of smoking, but these records do not discuss diagnosis or treatment of varicose veins or vascular involvement in the legs. Therefore, the Board finds the preponderance of the evidence is against finding the Veteran’s service-connected disabilities contributed to his death. Lastly, the Veteran’s service treatment records are silent for myocardial infarction heart attack, or any cardiovascular conditions or complaints (see March 25, 1955 STR pp. 20, 22, 34); indeed, the Appellant has not asserted that his death was directly related to his service but instead to service-connected radiculopathy. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise, and service connection for the cause of the Veteran’s death is not warranted. See 38 U.S.C. §§ 1310, 5107(a). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.