Citation Nr: 21028512
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 17-44 400
DATE: May 11, 2021

ORDER

Entitlement to service connection for cause of death is granted.

FINDING OF FACT

The evidence is at least evenly balanced as to whether the Veteran's service-connected coronary artery disease contributed substantially or materially to his death.

CONCLUSION OF LAW

The criteria for entitlement to service connection for cause of death have been met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Marines from October 1965 to October 1969, including distinguished service in Vietnam.  His awards and decorations include Purple Heart, Combat Action Ribbon, Vietnam Campaign Medal, Vietnam Service Medal with two stars, Presidential Unit Citation, and the National Defense Service Medal. The Appellant is the Veterans spouse. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 Regional Office (RO) rating decision.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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). 

1. Entitlement to service connection for cause of death

The Appellant is seeking service connection for the Veterans cause of death.  Specifically, she asserts that the Veterans service-connected coronary heart disease contributed to his death. 

DIC benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.312. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered the principal (primary) 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 to it. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death or 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).

The November 2016 Death Certificate states the immediate cause of the Veteran's death was cardiac arrest due to COPD and heart failure. As discussed above, the Veteran has been granted service connection for coronary artery disease (claimed as ischemic heart disease).

In this case the Veterans Death certificate lists heart failure as a contributory cause of death. Under 38 C.F.R. § 3.312(c)(3) service-connected diseases 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. That fact that the Veteran was diagnosed with coronary artery disease and he died from cardiac arrest due to heart failure shows that he died from a disorder that involved the same vital organ.

The evidence is thus at least evenly balanced as to whether the service-connected coronary artery disease contributed substantially or materially to the Veteran's death. As the reasonable doubt created by this relative equipoise must be resolved in favor of the appellant, entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica