Citation Nr: 21032857 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 11-11 298 DATE: May 28, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in November 2009. The death certificate lists the immediate cause of death as end stage dementia, with chronic obstructive pulmonary disease as a significant condition contributing to death but not resulting in the underlying cause of death. 2. At the time of his death, the Veteran was service-connected for pulmonary tuberculosis. 3. The fatal disease process was not manifest during service or within an applicable presumptive period. The cause of death is unrelated to service and a service-connected disability did not contribute substantially, materially, or combine with another disorder to cause death, or aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1943 to February 1946. He died in November 2009. The appellant claims as the surviving spouse. The issue currently before the Board was remanded in December 2017, with one of the remand requests for the Veteran's records from Hospice by the Sea. In response, Trustbridge Health, the parent company of Hospice by the Sea, stated that no records were found. See Third Party Correspondence, dated March 24, 2019. 1. Entitlement to service connection for the cause of the Veteran's death To establish service connection for the cause of a veteran's death, the evidence must show that the disease which caused death was incurred in or aggravated by service or that a service-connected disability caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For it to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. That is to say, 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 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. Generally, minor service-connected disabilities, particularly those of a static nature or those not materially affecting a vital organ (e.g., those disabilities affecting muscular or skeletal functions), are not held to have contributed to a death that is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2), (3). Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The appellant argues that the Veteran's service-connected inactive pulmonary tuberculosis resulted in the Veteran's death. Specifically, appellant cites to a significant contributing cause of death listed on the Veteran's death certificate, chronic obstructive pulmonary disease (COPD), and potentially other diseases, as "[creating] a favorable environment for other conditions... that weaken the immune system and led to [the Veteran's] death." The Board initially notes that the Veteran's service treatment records are absent of complaints of or treatment related to end stage dementia, COPD or symptoms associated therewith. On July 31, 1950, the Veteran was issued a rating decision for his pulmonary tuberculosis. The Veteran's pulmonary tuberculosis would be rated at 100% from June 23, 1950 to April 21, 1951, 50% from April 22, 1951 to April 21, 1955, 30% from April 22, 1955 to April 21, 1960, and noncompensible from April 22, 1960. Post-service, the first chronological evidence in the Veteran's file of treatment for symptoms of treatment related to dementia are from approximately 2003, nearly fifty-seven years after the Veteran's discharge from service. The Veteran's medical treatment records indicate that the Veteran had chronic medical problems with dementia in February 2005. Similarly, the first competent evidence in the Veteran's file of treatment for symptoms or treatment related to COPD are from approximately 2007, nearly sixty years after the Veteran's discharge from service. A private medical examiner in 2007 found that the Veteran had air trappings "suggestive of underlying COPD." See Medical Treatment Record- Non-Government Facility, received October 12, 2010. Conversely, a VA examiner, in April 2017, indicated that "veteran was never cared for COPD, nor was there any clinical evidence of COPD during the time that he was seen at Miami VAMC from 2003 through the time he died." With regard to the appellant's contention that the Veteran's pulmonary tuberculosis was related to the Veteran's cause of death, in a medical opinion dated April 2017, a VA examiner concluded that the Veteran's inactive tuberculosis is less likely than not the cause of or a contributory factor in this veteran direct cause of death of end stage dementia or the contributory cause of death, COPD. The VA examiner wrote that "Inactive tuberculosis is a minor service connected disability which is not known to impact in any was the course of any coexisting medical condition(s),in any person known as [the] sufferer of this disability. All people suffering from this condition (known to be in the millions) died from causes totally different from it. There are not documented cases in the medical literature documenting that inactive quiescent tuberculosis ever aggravated any case of either COPD or end stage dementia in such way that it aggravated or accelerated the condition." In an addendum medical opinion from April 2019, the VA examiner concluded, after additional review of the claims folder, that it is less likely than not that the Veteran's pulmonary tuberculosis was the cause of, or an aggravating cause of, the Veteran's fatal end stage dementia. The VA examiner also concluded that it is less likely than not that the Veteran's pulmonary tuberculosis was the cause of, or an aggravating cause of, the Veteran's contributory COPD. The VA examiner wrote that "the pulmonary function test performed by [Dr. L.] which disclosed normal PFT's with zero evidence of an obstructive process such as COPD." The VA examiner went on to further explain that "even if the veteran had turned out to have COPD...the most crucial point in this case is the fact that 'he did not have any evidence of active pulmonary tuberculosis that could have produced an aggravation of a lung pathology' and since the basic question is 'whether his SC tuberculosis could have either been the cause of any possible lung disorder or whether it could have aggravated any possible lung condition' the answer has to remain negative as non-active, quiescent tuberculosis cannot produce any damage." The August 2019 VA opinion is based on a review of the medical record, the conflicting evidence, and the physician's expertise, is well-supported, and referenced the contrary theories set forth by appellant, to include evidence submitted by appellant. It is highly probative of whether the Veteran's cause of death is in any way related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). Thus, the Board finds the April 2017 and April 2019 VA examiner's conclusions on this matter more probative than the other evidence of record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board has considered the appellant's assertions that the Veteran's service-connected pulmonary tuberculosis led to COPD, or any other disabilities or diseases, such as end stage dementia, that caused or contributed to the Veteran's death. However, the Board accords the 2017 and 2019 VA medical opinions more probative weight as discussed above. Appellant's assertions are significantly outweighed in comparison to the opinion of a trained medical professional on this medically complex matter. The preponderance of the evidence is against finding end stage dementia or COPD, were proximately due to or aggravated by his service-connected pulmonary tuberculosis or that a service-connected disability was either the principal or contributory cause of the Veteran's death. In addition, none of the contributing factors noted in the death certificate were manifest during service or otherwise related to service connected disease or injury. The Board concludes that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran's death. In such cases, the benefit-of- the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lastly, we note that the Veteran was not in receipt of or entitled to receive a 100 percent evaluation for a period of 10 or more years prior to death. 38 U.S.C. § 1318. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.