Citation Nr: 21027411 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-63 775 DATE: May 5, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in February 2014. The primary cause of death was interstitial lung disease, chronic obstructive pulmonary disease (COPD), and rheumatic arthritis. Contributory causes of death were listed as septic shock and pneumonia. 2. At the time of the Veteran's death, he was service connected for residuals of a cold injury of the upper and lower extremities, posttraumatic stress disorder (PTSD), and recurrent perirectal cyst with scar residuals. 3. The preponderance of the evidence is against finding that the Veteran's death resulted from any disability incurred in or aggravated by his service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from April 1948 to March 1952 and from August 1954 to August 1960. He died in February 2014. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision. In February 2019 the Board issued a decision denying service connection for the cause of the Veteran's death. The Appellant appealed this decision to the Court of Appeals for Veterans Claims (CAVC) which issued a memorandum decision in May 2020 setting aside the Board's decision and remanding the claim back to the Board for further adjudication. The Board then remanded the claim in January 2021 in accordance with the May 2020 memorandum decision. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Appellant seeks service connection for the Veteran's cause of death. She contends his cause of death is related to the Veteran's service or a service-connected disability. The Board is sympathetic to the Appellant for her loss. Unfortunately, it must conclude that service connection for the cause of the Veteran's death is not warranted. When any veteran dies from a service-connected disability, the surviving spouse is entitled to Dependency Indemnity Compensation (DIC) benefits. 38 U.S.C. § 1310. To establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability either caused or contributed substantially or materially to death. 38 C.F.R. § 3.303. The Veteran's death certificate establishes interstitial lung disease, COPD, and rheumatic arthritis as the primary causes of death. Additionally, septic shock and pneumonia as conditions that contributed to the Veteran's death. As the Veteran was not service connected for any of these conditions at the time of death, service connection must first be established to qualify for DIC compensation under 38 U.S.C. § 1310. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether a Veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the Veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). The cause of the Veteran's death was interstitial lung disease, COPD, and rheumatic arthritis. At the time of his death, the Veteran was service connected for residuals of a cold injury of the upper and lower extremities, PTSD, and recurrent perirectal cyst with scar residuals. Upon review, the Board does not find any in-service incident, event, or illness to which the Veteran's cause of death may be etiologically linked. The Veteran's service treatment records are silent as to any reports or symptoms related to interstitial lung disease, COPD, or rheumatic arthritis. Therefore, the claim fails the second element of direct service connection and must be denied. Regarding secondary service connection, a VA opinion was obtained in October 2012 to determine whether the Veteran's causes of death were related to his service or service-connected conditions. The examiner ultimately concluded that it was less likely than not that the Veteran's service-connected conditions do not lead to renal, respiratory, cardiac, or cancers of the internal organs. The examiner went on to state that it is less likely as not that the service connected conditions resulted in 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. Further, another VA opinion was obtained in January 2021 to consider the contributory causes of death and if they were related to the Veteran's service. The examiner ultimately concluded that it was less likely than not that the contributory causes of death, septic shock and pneumonia, were related to the Veteran's service. Regarding the pneumonia, the examiner stated that it was related to the Veteran's COPD and interstitial lung disease, major risk factors for pneumonia. The examiner also noted that it was less likely than not that septic shock was related to the Veteran's service. Specifically, the examiner stated that septic shock is caused by an infection in the body that results in lowering blood pressure to a life-threatening level. The examiner goes on to conclude that the evidence shows the most probable cause of this is the Veteran's pneumonia not any of his service-connected disabilities. The Board finds the October 2012 opinion and subsequent January 2021 addendum opinion probative because the examiner considered the Veteran's relevant medical history, provided a sufficiently detailed description of the circumstances surrounding his death, and provided analysis to support his opinion concerning the cause of the Veteran's death. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Moreover, there is no competent medical opinion of record to the contrary. As the VA examiner opined that the Veteran's causes of death, including the contributory causes of death, were not caused by his service-connected disabilities, service connection cannot be granted on a secondary basis. The Board truly sympathizes with the Appellant and has thoroughly contemplated her genuine belief that the Veteran's death is related to his service. Unfortunately, the Board finds that the preponderance of the evidence is against finding service connection for the cause of the Veteran's death. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate 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.