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Court Wins

Board Erred in Denying Widow Service Connection for Veteran’s Cause of Death

Michael Lostritto

December 10, 2018

Updated: June 20, 2024

Court Win - Service Connection lung disorder

Summary of the Case

The Veteran served in the United States Army from March 1943 to May 1945.  He was awarded the Purple Heart after suffering shrapnel wounds to his right shoulder and chest during combat.  Immediately following service, the Veteran applied for service-connected compensation for this injury.  From May 1945 through May 1946, he was awarded a temporary 100 percent disability rating, which then decreased to 30 percent in March 1946.  In October of 1978, the Veteran sought a re-evaluation of his service-connected disabilities and was assigned a 20 percent rating under DC 6818 for pleural cavity injuries, including residuals of gunshot wounds, and a 30 percent rating under DC 5303 for injuries of the shoulder and arm.  However, a subsequent July 2010 Rating Decision listed the Veteran’s shell fragment wound under DC 6818-5321 to reflect compensation based on the residuals of severe or moderately severe impairment of muscles of respiration.  In February of 2012, the Veteran passed away.  His death certificate indicated that the cause of death was chronic respiratory failure due to COPD and listed his service-connected shoulder injury, chest muscle impairment, and PTSD as conditions contributing to his death.

In March of 2012, the Veteran’s wife filed an application for Dependency and Indemnity (DIC) benefits based on her husband’s service-connected conditions contributing to his death.  VA provided a medical opinion to evaluate the Veteran’s service-connected conditions in relation to his cause of death, but opined that it is at least as likely as not that his chest impairment and shoulder injury caused or significantly contributed to his death.  As a result, the Board denied the appellant service connection for cause of death.

Board denies service connection for cause of death

In August of 2016, the Board denied the appellant’s claim for service connection for cause of death.  Specifically, the Board found that the veteran’s service-connected conditions did not cause or contribute to his death.  In its decision, the Board explained that it determined the Veteran did not have any lasting respiratory or pulmonary impairment as a result of his shell fragment wounds.  Moreover, the Veteran’s shortness of breath was attributed to factors other than his shell fragment wounds.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied the appellant service connection for the late Veteran’s cause of death.  CCK argued that the Board erred in concluding that the Veteran’s service-connected conditions did not cause or contribute to his death.  CCK asserted that the Board failed to discuss the applicability of 38 CFR § 3.312, which states the diseases or injuries involving active processes affecting vital organs should receive careful consideration as contributory cause of death.  Namely, while a certain condition may not be the primary cause of death itself, it may cause a person to be less capable of resisting the effects of the primary cause.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board failed to address whether the Veteran’s service-connected shell fragment wound of the pleural cavity was a contributory cause of death under 38 CFR § 3.312.  Specifically, the Board did not discuss whether the severe to moderately severe impact on the muscles of respiration, and thus the Veteran’s breathing, rendered him less capable of resisting the effects of the other disease primarily causing his death (i.e. COPD).  Accordingly, the Court determined that remand is required for the Board to provide an adequate statement of reasons and bases for its cause of death determination.  In doing so, the Board must evaluate the Veteran’s history from a contributory cause viewpoint.


To read the Court’s decision, click here.

About the Author

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael