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Court Wins

Board Denial of Service Connection for Cause of Death Contained Legal Error

Robert Chisholm

May 2, 2019

Updated: November 20, 2023

Court Win - Service Connection cause of death

Factual and Procedural History

The Veteran served on active duty in the United States Navy from November 1950 to February 1955 including service in Korea.  In November 1953, he was in a motor vehicle accident and sustained a simple fracture of the left acetabulum, dislocation of the left hip, compound fracture of the right patella, and severe lacerations of the right knee.  He subsequently developed post-traumatic aseptic necrosis of the left femoral head and was placed on the temporary retired list in March 1955.  Following service, the Veteran was granted service connection for a left hip disability, traumatic arthritis of the left and right knees, degenerative disc disease of the lumbosacral spine, and bilateral knee scars, all related to the in-service motor vehicle accident.  In April 1974, he had his left hip replaced, resulting in his left leg being 2.5 cm shorter than his right leg.  Several years later, the Veteran sought treatment for left hip pain that was causing him to significantly slow down his activities.  As a result, he underwent revision surgery for his left hip replacement.  In March 1991, the Veteran experienced a sudden collapse of the left hip joint and gross loosening of the components of the left hip replacement, which required further revision surgery.  He continued to suffer from joint pain associated with the in-service motor vehicle accident and, in August 1999, a private physician observed that the Veteran could not walk long distances without significant pain in both of his knees and lower back.

The Veteran attended a VA mobility consult in September 2002 in a manual wheelchair.  At this time, he reported only being able to walk 20-25 feet with a cane or crutch and that he had fallen three times in the past two months.  In May 2008, he fell while gardening and bruised his left hip.  He was admitted to the VA hospital later that month due to left leg pain, and was diagnosed with a hip contusion and hematoma.  As a result, he had to be taken off his blood thinners, which doctors warned could cause blood clots.  The Veteran’s health gradually deteriorated after the fall, and he passed away two years later.  His death certificate listed pulmonary hypertension as the cause of his death.

The next month, the late Veteran’s spouse filed a claim for dependency and indemnity compensation (DIC).  However, in November 2010, the Regional Office denied her claim.  She continued to appeal, arguing that her husband’s May 2008 fall, the many pain medications he was taking for his service-connected orthopedic conditions, and the pain from those disabilities contributed to his death from pulmonary hypertension.  The Regional Office continued to deny her claim, and eventually she appealed to the Board of Veterans’ Appeals.  In June 2015, the Board issued a remand to obtain a VA medical opinion addressing the cause of the late Veteran’s death.  In the April 2017 VA opinion, the examiner opined that his cause of death from pulmonary hypertension was less likely than not proximately due to or the result of his service-connected orthopedic conditions because the medical literature did not identify the Veteran’s service-connected disabilities as risk factors or causes of pulmonary hypertension.  The examiner then opined that it was less likely than not the various medications that the Veteran took for his service-connected disabilities resulted in a fall that caused a blood clot that led to pulmonary hypertension, and ultimately, his death.  In October 2017, the Board issued a decision denying service connection for cause of death based on this medical opinion.

CCK appeals the Board denial to the CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for the late Veteran’s cause of death.  CCK argued that the April 2017 VA opinion was inadequate and the Board therefore clearly erred in relying on it to deny the spouse’s DIC claim.  Further, the Board denial was based on an inaccurate factual premise and contained insufficient supporting rationale.  CCK challenged the examiner’s poor use of statistics and failure to consider the compounding effects of being on multiple pain medications at once.  CCK also asserted that the Board provided inadequate reasons or bases for its decision because it failed to consider all the theories of service connection for the late Veteran’s cause of death that his spouse previously raised.  Here, the Board did not consider the full scope of the spouse’s arguments when it overlooked whether stress and chronic pain caused pulmonary hypertension, or whether his orthopedic conditions caused his fall.

Court agrees with CCK’s arguments

CCK argued, and the Court agreed, the April 2017 VA opinion was inadequate in several respects.  The rationale for concluding the late Veteran’s service-connected orthopedic conditions did not cause his death did not address his spouse’s stated theory of service connection.  Specifically, it did not answer whether his mobility problems and history of falls related to his service-connected orthopedic disabilities made it as likely as not that those disabilities caused his fall and precipitated a chain of adverse health consequences and ultimately led to his death.  The examiner did not discuss any facts specific to his case that may suggest that he was a greater fall risk than portrayed by the general statistics, including his reported history of falls, balance issues, left leg instability, unsteady gait, difficulty ambulating, and other mobility issues that required someone to be with him at all times.  The Court also held that the April 2017 VA opinion did not address the cumulative effect of the late Veteran’s medications, which may have made him a greater fall risk than that suggested by the individual fall rates for each medication alone.  Accordingly, remand is warranted for the Board to obtain an adequate medical opinion as to the cause of the Veteran’s death and to address all of the previously raised theories of entitlement to DIC.

To read the Court’s full decision, click here.

About the Author

Bio photo of Robert Chisholm

Robert is a Founding Partner of CCK Law. His law practice focuses on representing disabled veterans in the United States Court of Appeals for Veterans Claims and before the Department of Veterans Affairs. As a veterans lawyer Robert has been representing disabled veterans since 1990. During his extensive career, Robert has successfully represented veterans before the Board of Veterans Appeals, Court of Appeals for Veterans Claims, and the United States Court of Appeals for the Federal Circuit.

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