Citation Nr: 21039828 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-42 605 DATE: July 1, 2021 ORDER Entitlement to service connection for cause of death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in August 2012 and his death certificate reflects that the immediate cause of death was chronic obstructive pulmonary disease with significant conditions contributing death to include severe peripheral neuropathy. 2. At the time of his death, the Veteran was service connected for coronary artery disease, tinnitus, otitis media bilateral, residuals of shrapnel wound to face, residual shrapnel wound to nose, residual shrapnel wound to left thigh, sternotomy scar associated with coronary artery disease, status post myocardial infarction, stents, and coronary artery bypass graft. 3. Resolving reasonable doubt in his favor, the Veteran's coronary artery disease was either a contributory cause of death or had a material influence in accelerating his death. 4. At the time of the Veteran's death, he was in receipt of 40 percent combined evaluation award. 5. The Veteran was not a former prisoner of war (POW), and he was not in receipt of or entitled to receive compensation at the 100 percent rate due to service-connected disabilities for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. 2. The criteria for DIC benefits pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to May 1971 to include service in the Republic of Vietnam. He died in August 2012. The appellant is his surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board issued a decision denying service connection for cause of death and entitlement to DIC. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted a Joint Motion for Remand (JMR), and the Court vacated and remanded the case to the Board for action consistent with the JMR. As a preliminary matter, the Board acknowledges that the Appellant submitted a statement in April 2014 with VA 21-534EZ form, stating that the Veteran suffered from severe peripheral neuropathy prior to his death, and that the August 2012 death certificate also lists severe peripheral neuropathy as a significant contributor to the Veteran's death. However, the issue of entitlement to service connection for severe peripheral neuropathy was not pending before the Agency of Jurisdiction (AOJ) at the time of the Veteran's death and the Board does not have jurisdiction over the adjudication of a separate issue of service connection for severe peripheral neuropathy. 38 C.F.R. § 3.1000(c). Moreover, the Board is granting service connection for the cause of the Veteran's death herein. 1. Service Connection for the Cause of the Veteran's Death The Appellant and her attorney assert that entitlement to service connection for cause of the Veteran's death is warranted. She contends that the Veteran's service-connected coronary artery disease was a principal or contributory cause of his death rather than the listed cause of death which was chronic obstructive pulmonary disease (COPD). For the reasons detailed below, the Board grants service connection for the cause of the Veteran's death. In order to establish service connection for the cause of the veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. 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 else be etiologically related. For a service-connected disability 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. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the veteran's death should have been service-connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 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; Gilbert v. Derwinski, supra. The Veteran passed away in August 2012 and the death certificate reflects that the immediate cause of death was COPD. At the time of his death, the Veteran was service-connected for coronary artery disease, tinnitus, otitis media bilateral, residuals of shrapnel wound to face, residual shrapnel wound to nose, residual shrapnel wound to left thigh, sternotomy scar associated with coronary artery disease, status post myocardial infarction, stents, and coronary artery bypass graft. Turning to the question of whether there is an etiological relationship between the Veteran's service and the cause of his death, the Board notes that the record contains multiple etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board will consider each of these opinions below. The Veteran submitted an October 2012 private opinion. In the opinion, the physician opined that while the Veteran did have long history of severe COPD, he believed that his service-connected heart disease contributed substantially or resulted in his death. In support of this opinion, the physician explained that the Veteran had apparently been requiring nitroglycerin frequently in the weeks prior to his death. The physician also opined that the Veteran's dyspnea may have been exacerbated by his angina and cardiac dysfunction and that the Veteran's cardiac ischemia likely was aggravated by his COPD or hypoxia. However, the speculative terminology used by this physician does not provide a sufficient basis for an award of service connection. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611(1992) ("may or may not" language by a physician is too speculative). As such, this opinion is being afforded little, if any, probative weight. A VA opinion was obtained in April 2013, where the VA examiner opined that although COPD might seem like it contributed to his death, coronary artery disease may have contributed to his death due to the interdependence of the cardiac and pulmonary system. In support of this conclusion, the examiner offered that the Veteran had a history of coronary artery disease, status post stents in 1995, 2001, and 2011. In addition, the examiner noted that the Veteran also underwent coronary artery bypass graft in 2008. The examiner noted that an echocardiogram test in December 2011 showed endurance factor of 52 percent along with very mild hypokinesia, that the Veteran also had severe COPD and was oxygen dependent. However, the VA examiner tended to agree with the October 2012 physician's opinion that indicated the Veteran might have been experiencing cardiac symptoms before his death. However, the April 2013 VA examiner could not firmly decide whether the service-connected coronary artery disease did or did not contribute substantially to the Veteran's death based on available evidence and without resorting to speculation. As a result of the April 2013 opinion, an addendum VA opinion was obtained in July 2013. The VA examiner opined that the Veteran's death was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran's coronary artery disease. In support of this opinion, the examiner explained that the Veteran's service-connected coronary artery was treated successfully in 2008 and did not cause or substantially contribute to the Veteran's death which happened solely as a result of COPD with severe peripheral neuropathy listed as a significant condition contributing to death. The VA examiner opined that it was unreasonable and highly speculative to conclude that the Veteran's heart disease contributed significantly to his death as there is absolutely no evidence in his medical chart or on the death certificate which indicate that he died from any complications arising from his coronary artery disease conditions as he retained good heart function on the echocardiogram and angiogram tests performed in months prior to his death. The examiner reported with high degree of medical certainty that the Veteran died from natural progression of his COPD condition. The Board affords this opinion lower probative weight as the opinion did not discuss the significance of the Veteran needing nitroglycerin prior to his death to treat symptoms as mentioned in previous medical opinions. A July 2014 VA opinion echoed the July 2013 VA opinion and explained that there was no evidence that the Veteran's ischemic heart disease contributed substantially and materially to his death. However, as the VA opinion did not address any of the other evidence of record, the Board finds the July 2014 VA opinion warrants low probative weight. In a February 2019 VA opinion, the examiner noted the Veteran had severe end stage COPD and also had ischemic heart disease with prior stents and bypass surgery. The examiner noted the three stents were successfully placed in the right coronary artery for a non-ST segment elevation myocardial infarction (NSTEMI) as recently as March 8, 2011. The examiner noted the Veteran had a normal echocardiogram on December 12, 2011 with an ejection fraction of 52 percent and that there was no documented evaluation or interventional care for ischemic heart disease subsequently. As such, the examiner opined that it is less likely than not that the Veteran's ischemic heart disease cause or contributed significantly to his demise. However, the JMR noted that this opinion essentially provided the same rationale as the July 2014 VA examiner. As the Board has found the July 2014 VA opinion to be of low probative weight, it is also finding the February 2019 VA opinion to be of low probative wight. In May 2021, a private opinion was submitted from J.F., a physician and Board certified cardiologist. The physician opined that it is at least as likely as not that the Veteran's coronary artery disease aggravated his COPD, ultimately contributing substantially to his cause of death. The physician also opined that it is at least as likely as not that coronary artery disease progressively worsened and led to the development of heart failure and worsening angina which were major contributors to the Veteran's death. In support of this conclusion, the physician explained that the Veteran had multiple cardiovascular risk factors including COPD and that his severe coronary artery disease was also complicated by myocardial infarction, multiple revascularizations, and heart failure. The physician referred to the July 9, 2012 treatment note where the Veteran suffered persistent tachycardia and required more nitroglycerin, which are indicative of significant coronary artery disease manifestations. The physician also explained that the use of left ventricular dysfunction with ejection fraction percentages as shown in echocardiogram tests are not reliable indicators of symptoms and that majority of patients with heart failure have normal left ventricular dysfunction with ejection fraction with symptoms similar to those suffered by the Veteran. The physician also explained that the VA medical treatment providers were unable to attribute symptoms to the correct illness, specifically between COPD and coronary artery disease. The physician also explained that medical treatment records failed to document the relative severity of the COPD in comparison to the coronary artery disease which was regularly measured and documented to show progressive worsening of cardiac function leading to heart failure as a significant cause of death. The physician also explained that COPD and coronary artery disease often coexist and, in those populations, either complicating the other is significantly higher than in the populations lacking either COPD or coronary artery disease. Ultimately, the physician referred to the medical treatment records that showed the Veteran had increasing difficulty with his heart prior to his death. The physician also directed the Board's attention to the numerous opinions including the August 2012 private and April 2013 VA opinions where the examiners opined that the Veteran's coronary artery disease likely contributed to his death. The Board finds this private opinion to be highly probative and persuasive in addressing the cause of the Veteran's death, as the opinion has clear conclusions and supporting data, as well as reasoned medical explanations when determining that the Veteran's coronary artery disease aided, contributed, or caused in the development of and permanently aggravated the Veteran's COPD which ultimately caused the Veteran's death. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, the Board finds no adequate basis to reject the May 2021 supportive opinion and has accorded they significant probative weight with respect to establishing the nexus element of the claim. The May 2021 opinion is therefore afforded great probative weight. Moreover, the Board also finds that no further evidentiary development in this regard is necessary. Cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In sum, the Board notes that service connection was in effect for coronary artery disease at the time of the Veteran's death and that his immediate cause of death was COPD. Although there are some etiology opinions of record against the claim, the Board finds that the May 2021 in favor of the claim to be highly probative. Accordingly, the Board finds that the evidence for and against the claims of entitlement to service connection for the cause of the Veteran's death is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and 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; Gilbert v. Derwinski, supra. 2. DIC under 38 U.S.C. § 1318 The Appellant contends that she is entitled to dependency and indemnity compensation under 38 U.S.C. § 1318 as there was a pending claim of entitlement to accrued benefits for COPD and increased rating claim for service-connected coronary artery disease. VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the veteran's death was service-connected. 38 U.S.C. § 1318(a); 38 C.F.R. § 3.22(a). A deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). For purposes of the statute and regulation, "entitled to receive" includes a situation in which the veteran would have received total disability compensation at the time of death but for clear and unmistakable error in a decision on a claim filed during the veteran's lifetime. 38 C.F.R. § 3.22(b)(1). In this case, the Veteran had not had a service-connected disability rated as totally disabling except from November 11, 2008 to February 28, 2009. Additionally, the Veteran had not been in receipt of a total rating based on individual unemployability (TDIU). Further, the appellant does not claim, and the record does not show, that the Veteran was a prisoner of war. Accordingly, the criteria for entitlement to DIC benefits under 38 U.S.C. § 1318 are not satisfied. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, 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.