Citation Nr: 22011106 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 18-17 724 DATE: February 25, 2022 ORDER The application to reopen the claim of service connection for the cause of the Veteran's death is granted. Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. In a December 2014 final rating decision, the VA regional office (RO) denied service connection for cause of the Veteran's death. 2. The evidence received since the final December 2014 rating decision regarding service connection for cause of the Veteran's death is not cumulative or redundant and raises a reasonable possibility of substantiating the appellant's claim. 3. The Veteran's death certificate listed his immediate cause of death as acute respiratory failure with underlying causes of hospital acquired pneumonia and metastatic lung cancer and contributing conditions of diabetes mellitus and hypertension. 4. The evidence shows that the Veteran's service-connected posttraumatic stress disorder (PTSD) contributed to a long history of tobacco use as a coping mechanism, which substantially or materially contributed to the Veteran's death, including acute respiratory failure, pneumonia, metastatic lung cancer, and diabetes mellitus. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for cause of Veteran's death is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1965 to January 1967. The Veteran passed away in September 2014. The appellant is his surviving spouse. The Board notes the appellant requested a live videoconference hearing on his March 2018 substantive appeal. A hearing was scheduled in December 2021, and a subsequent December 2021 correspondence from the appellant's representative waived her request for a hearing. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). New and Material Evidence Claim The appellant's claim of service connection for cause of the Veteran's death was denied in a December 2014 rating decision. The appellant did not appeal that decision and did not submit any new and material evidence during the appeal period. The Board acknowledges that the appellant asserts she did not receive the March 2016 statement of the case (SOC). See March 2018 VA 21-4138 Statement in Support of Claim. However, the SOC was addressed to the appellant and was not returned as undeliverable, and the appellant's representative at the time was also sent a copy. Therefore, the December 2014 decision became final. Once a decision becomes final, VA will only reopen it and decide it on the merits if new and material evidence is submitted. Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO's December 2014 rating decision includes medical treatment records, a private medical opinion, and lay statements from the appellant. This evidence was not before adjudicators when the appellant's claim was last finally denied, and it is not cumulative or redundant of the evidence of record at the time of the last decision. The new evidence relates to unestablished facts necessary to substantiate the claim of service connection for cause of the Veteran's death and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Entitlement to service connection for the cause of the Veteran's death is granted. The appellant contends that the Veteran, her deceased spouse, is entitled to service connection for the cause of his death. The Veteran suffered from acute respiratory failure, pneumonia, metastatic lung cancer, and diabetes mellitus, which ultimately led to his death in September 2014, and the appellant contends the Veteran's service-connected PTSD caused the Veteran to smoke, which resulted in the acute respiratory failure, pneumonia, metastatic lung cancer, and diabetes mellitus. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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 thereto. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or assisted in the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A surviving spouse may also demonstrate that the disability that caused the Veteran's death should have been service-connected. 38 C.F.R. § 3.312. To establish service-connection, an appellant 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); see 38 C.F.R. § 3.303(a). With regard to the Veteran's tobacco use, the Board notes that for claims filed after June 9, 1998, the law generally prohibits claims for secondary service connection for a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that is attributable to the veteran's use of tobacco products during service under 38 C.F.R. § 3.310. Tobacco products mean cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. 38 U.S.C. § 1103; 38 C.F.R. § 3.300(a). However, in October 2003, the VA's Office of General Counsel explained that the legal bar to service connection for a disability attributable to tobacco use does not bar a finding of secondary service connection for a disability related to the Veteran's use of tobacco products after the Veteran's service, where that disability is proximately due to or aggravated by a service-connected disability that is service-connected on the basis of being attributable to the veteran's use of tobacco products during service. VAOPGCPREC 6-2003 (October 28, 2003). In other words, secondary service connection may be established for a condition related to post-service tobacco use that is the result of or has been aggravated by a service-connected disability unrelated to tobacco use. Id. The General Counsel stated that VA adjudicators must resolve (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. If these questions are answered in the affirmative, the secondary disability may be service connected. VAOPGCPREC 6-2003 (October 28, 2003). 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. After a review of the record, the Board finds the criteria for service connection for the cause of the Veteran's death have been met. 38 C.F.R. §§ 3.303, 3.312. First, the evidence shows that the Veteran died of acute respiratory failure, pneumonia, metastatic lung cancer, and diabetes mellitus. See April 2016 Death Certificate. The present disability element of service connection is established. See Holton, 557 F.3d at 1366. Second, the Veteran has been service-connected for PTSD since January 2001. See March 2014 Rating Decision Codesheet. He is not service connected for any other condition. Finally, the evidence demonstrates that the Veteran's service-connected PTSD caused the Veteran to smoke. In turn, his smoking resulted in his acute respiratory failure, pneumonia, metastatic lung cancer, and diabetes mellitus, which ultimately led to his death in September 2014. A private November 2021 opinion provided by Dr. T.K.G. was associated with the Veteran's claims file in December 2021. Dr. T.K.G. opined that the Veteran's death from metastatic lung cancer was as likely as not caused by his smoking and that his service-connected PTSD was a strong causative factor in the Veteran becoming or remaining a smoker. He noted that records did not indicate if the Veteran smoked before entering service, but even if he already used tobacco, the Veteran's PTSD was a significant factor in preventing the Veteran from quitting smoking, thereby contributing to his metastatic lung cancer. He further noted that it was clearly evident from the Veteran's psychiatry medical records that his alcohol abuse was an attempt at self-medicating his severe PTSD symptoms. Moreover, Dr. T.K.G. stated that the death certificate designated diabetes as a significant contributing factor to the Veteran's death of pneumonia. There was general increased susceptibility to infections in diabetics, and the proximate cause of his terminal respiratory failure being hospital-acquired pneumonia. He opined that it was as likely as not that the Veteran's PTSD increased his risk for and worsened control of his diabetes mellitus that was a contributing factor in his death. There was an increased incidence of diabetes in PTSD patients, largely due to the effects of chronic stress hormones on glucose metabolism. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise, with no conflicting evidence. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's long history of tobacco use was secondary to his service-connected PTSD. Additionally, the Board finds that the tobacco use caused the Veteran's acute respiratory failure, pneumonia, and metastatic lung cancer, and that his PTSD aggravated the Veteran's diabetes mellitus, all of which ultimately led to his death in September 2014. As all elements of service connection are satisfied, compensation is warranted based on the cause of the Veteran's death. See 38 C.F.R. §§ 3.303, 3.312. The Board acknowledges the appellant's contention that the Veteran's death was due to herbicide exposure. As the benefit sought on appeal is granted in full, the Board need not address this contention. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.