Citation Nr: 21028563 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-35 007A DATE: May 11, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Veteran's death in February 2006 was not related to a service-connected disability or to service in any other way. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1944 to April 1946 and from September 1949 to September 1970. He died in February 2006, and the appellant is his surviving spouse. This appeal is before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2020 the Board reopened the appellant's claim and remanded with instruction to obtain relevant treatment records and a medical opinion from a VA examiner. The appropriate records were obtained, and a VA examiner provided a medical opinion in July 2020. The Board is therefore satisfied that the instructions in its April 2020 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for the cause of the Veteran's death The appellant claims service connection for the cause of the Veteran's death. Dependency and indemnity compensation (DIC) benefits may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), (b) and (d). For certain diseases with a relationship to herbicide agent exposure, such as ischemic heart disease, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). At the time of his death in February 2006, the Veteran was service connected for bilateral hearing loss, tinnitus, actinic keratosis, and asbestosis with calcified lung granuloma. His death certificate lists cause of death as a failure to thrive with a history of cerebrovascular accident (CVA), chronic obstructive pulmonary disease (COPD), and dementia. In her March 2011 claim to reopen, the appellant stated that the Veteran had a history of heart disease and stroke as indicated on his death certificate. In a November 2011 statement, the appellant contended that the Veteran's history of heart disease and eventual stroke contributed significantly to his death. She stated that the issues of ischemic heart disease and stroke can be commingled. She stated that it is not unknown to the medical community that the vast majority of CVAs are ischemic in nature. In January 2012, she stated that his presumptive exposure to herbicide agents caused his atherosclerosis which in turn caused the stroke that contributed to his death. She included a December 1993 chest x-ray showing atherosclerosis. Alternatively, she contended that his service-connected asbestosis caused the COPD listed on his death certificate. She reiterated these arguments in her August 2012 notice of disagreement and in her October 2014 substantive appeal. In a July 2020 medical opinion based on review of the record, a VA examiner opined that the Veteran did not have ischemic heart disease. The examiner explained that atherosclerosis in other arteries, but not the coronary arteries, does not establish any diagnosis of the ischemic heart disease. The examiner further opined that ischemic heart disease itself does not cause a stroke, but hypertension and atrial fibrillation can. As such, the most likely cause of the Veteran's stroke was longstanding hypertension and atrial fibrillation. The Board finds that the evidence weighs against a finding that the Veteran's death in February 2006 was related to a service-connected disability or to service in any other way. The appellant contends that the Veteran's death was related to ischemic heart disease. The July 2020 VA examiner, however, gave a probative opinion indicating that he did not have ischemic heart disease, and that the ischemia related to his stroke was not in any coronary arteries. There is no competent medical evidence in the record to contradict this opinion. Rather, the examiner noted that the Veteran's stroke was caused by hypertension and atrial fibrillation. Neither of these disabilities was service-connected, and the Board notes that the Veteran was denied service connection for hypertension in an August 1996 final rating decision. The appellant has not contended that hypertension is related to service, nor has any new and material evidence been received to revisit the finding of the August 1996 rating decision. The appellant also contends that the Veteran's death was related to his service-connected asbestosis. Specifically, she argues that asbestosis caused the COPD listed on his death certificate. Service connection for COPD, however, was denied in a March 2003 final Board decision, based on a finding that COPD was caused by tobacco use and unrelated to asbestosis. The appellant has not produced any competent medical opinions to contradict the medical evidence underlying the March 2003 Board decision. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's death in February 2006 was related to a service-connected disability or to service in any other way. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.