Citation Nr: 22014377 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-45 338 DATE: March 12, 2022 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran's principal cause of death was cardio-pulmonary arrest, and his contributory causes of death were hypoxemic respiratory failure on mechanical ventilation secondary to aspiration pneumonia with history of oropharyngeal dysphagia, symptomatic anemia, lactatemia, atrial fibrillation with fast ventricular rate, and uncontrolled diabetes mellitus type II. 2. The evidence of record does not indicate that the Veteran's principal cause of death and contributory causes of death were secondary to service-connected disability or were otherwise related to an in-service event, injury, or disease. 3. The evidence of record does not indicate that the Veteran's contributory causes of death of uncontrolled diabetes mellitus type II and anemia manifested within one year of separation from service or involved a continuity of symptomatology after service separation. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1310; 38 C.F.R. §§ 3.303, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The record indicates that the Veteran had active service between April 1948 and January 1961. He died in January 2017. The Appellant is his surviving spouse. This matter comes before Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes that additional evidence has been associated with the claims file since the August 2017 Statement of the Case (SOC). The Board cannot consider this evidence without a waiver by the Veteran or consideration of the evidence by the RO unless the evidence is redundant or not pertinent to the claim being decided. 38 C.F.R. § 20.1305(c). Here, the additional evidence is redundant of evidence already considered in the August 2017 SOC; accordingly, the Board finds that waiver of initial consideration by the RO is not required and there is no prejudice in proceeding below. Claim of entitlement to service connection for the cause of the Veteran's death The Appellant seeks service connection for the cause of the Veteran's death. The Veteran's January 2017 death certificate lists cardiopulmonary arrest due to aspiration pneumonia and hypoxemic respiratory failure (mechanic ventilation) as his cause of death. He was service-connected for a cervical spine condition, chronic fibromyositis of both trapezii muscles, gunshot wound residuals of the left hand, shell fragment wound residuals of the abdomen, and shrapnel wound residuals of the right hand at his time of death. Neither the Appellant nor her representative have provided any specific argument as to how the Veteran's cause of death may be related to his service or service-connected disabilities. VA death 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. §§ 3.5, 3.312. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). Service-connected diseases or injuries 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. 38 C.F.R. § 3.312(c)(3). The Veteran's treatment records relating to his final illness indicate that he was initially admitted on December 5, 2016, for left leg cellulitis and delirium and spent 31 days hospitalized prior to his January 7, 2017 death. On January 4, 2017, his active problems were hypoxemic respiratory failure on mechanical ventilation secondary to aspiration pneumonia with history of oropharyngeal dysphagia, symptomatic anemia, lactatemia, atrial fibrillation with fast ventricular rate (FVR), and uncontrolled diabetes mellitus type II. See January 2017 Palliative Care Consult. Similar to the cause of death listed in the death certificate, a January 5, 2017 Death Note listed his possible cause of death as cardio-pulmonary arrest secondary to the active problems listed above. Based on the above, the Board finds that the Veteran's principal cause of death was cardiopulmonary arrest, and his contributory causes of death were hypoxemic respiratory failure on mechanical ventilation secondary to aspiration pneumonia with history of oropharyngeal dysphagia, symptomatic anemia, lactatemia, atrial fibrillation with fast ventricular rate (FVR), and uncontrolled diabetes mellitus type II. The Board notes that none of the above conditions were service-connected, and neither the Appellant nor her representative have argued that these conditions should have been service-connected or that there may have been any additional contributory cause(s) of death. The Board has considered whether the principal cause of death or contributory causes of death were related to service on a presumptive or direct basis or were related to service-connected disability on a secondary basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Separately, where an appellant asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's contributory causes of death include symptomatic anemia and diabetes mellitus type II, which are chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the Board has considered and applied the provisions of 38 C.F.R. § 3.303(b) pertaining to manifestation to a compensable degree within a year or continuity of symptomatology in analyzing the Veteran's claim. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran's service treatment records indicate that his heart, lungs, and endocrine system were consistently evaluated as normal during service and shortly after his separation from service. See September 1954 Chest X-Ray; April 1956 Examinations; April 1960 Examination; September 1960 Examination; January 1961 VA Examination. While he was twice treated for the common cold, there is no evidence that these instances of the common cold did not resolve during service, and his negative chest x-ray and lung examinations following these treatments indicate that there were no associated residuals. See September 1952 Clinical Record Brief; January 1953 Clinical Record Brief. His service treatment records are otherwise silent for any complaints or diagnosis possibly relevant to his principal cause of death or any of his contributory causes of death. Overall, there is no evidence of record supporting a direct relationship between the Veteran's principal cause of death or any contributory cause of death and his active service, nor is there any evidence suggesting that the Veteran's principal cause of death or any contributory cause of death were related to his service-connected disabilities. There is similarly no evidence that either diabetes mellitus type II or anemia manifested within a year of his separation from service or involved continuity of symptomatology since service. See 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. Post-service VA treatment records associated with the claims file range in date from April 2014 to January 2017, with the exception of a February 2014 Medical Certificate diagnosing the Veteran with a muscle strain. As part of her January 2017 Application for DIC, Death Pension, and/or Accrued Benefits, the Appellant only identified the Veteran's treatment at San Juan VAMC from December 2013 to January 2017 as relevant to the present claim. Although the Appellant identified records from December 2013 and the RO requested records dated back to December 2013, an April 2014 Primary Care Screening Note indicates that the Veteran did not establish care with San Juan VAMC until April 2014. While these records document the Veteran's diabetes mellitus diagnosis from his initial visit, as they begin more than 53 years after his separation from service and do not discuss the history of this diagnosis, the records do not demonstrate any continuity of symptomatology. Separately, the records do not document a diagnosis of anemia prior to the Veteran's December 2016 hospitalization. The record also contains private treatment records from Dr. J.G.-V., a urologist, from August 2013 to February 2015 and brief, but largely illegible, progress notes by an unidentified provider from November 2012 to at least February 2015 (most recent date illegible). These records do not reference or discuss the Veteran's diabetes mellitus type II or anemia. The record does not contain an opinion linking the principal cause of death or any contributory cause of death to active service or any service-connected disability. In this regard, the Board notes that a VA opinion has not obtained; however, the Board finds that VA's duty to provide an opinion has not been triggered. Pursuant to McLendon v. Nicholson, a VA examination or opinion must be provided when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing an event, injury or disease occurred in-service, and (3) an indication that the disability or persistent or current symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). Here, as there is no evidence of record suggesting that the Veteran's principal cause of death or any contributory cause of death are related to service or a service-connected disability, the low standard of McLendon has not been met. Id. (Continued on the next page) As there is no evidence of record in support of service connection for the Veteran's cause of death on a presumptive, direct, or secondary basis, the Board finds that service connection for cause of death is not warranted, and the claim must be denied. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tierno 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.