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Court Wins

CCK Argues Service Connection for World War II Veteran’s Cause of Death

Christine Clemens

March 5, 2022

Updated: November 20, 2023

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Case Summary

The Veteran served on active duty in the United States Navy from January 1945 to May 1946 and from February 1947 to September 1949.  He was awarded the Asiatic-Pacific Ribbon for his service.  In November 2011, he passed away and is survived by his spouse.

The Veteran initially filed a disability benefits claim with the U.S. Department of Veterans Affairs (VA) in 1978 for residuals of fractures of his lumbar and thoracic vertebrae and a left hip replacement.  VA granted service connection for both, assigning a 10 percent rating for the back disability and 50 percent for the hip replacement.

In 1986, the Veteran filed for an increased rating for his back condition, which VA subsequently denied.  Over the next few decades, he filed multiple claims for an increased rating for his back condition, but VA continued to deny both his claims and appeals.  Finally, in 2005, the Veteran was granted a 40 percent rating for his back disability.

Following the Veteran’s death in 2011, the surviving spouse filed a claim for burial benefits, Dependency and Indemnity Compensation (DIC), and accrued benefits.  VA determined that the Veteran did not meet the requirements for service connection for cause of death and, therefore, did not grant the spouse any benefits.

In November 2016, the Board of Veterans’ Appeals (Board) denied the Veteran’s spouse DIC, accrued benefits, and death pension, but remanded the issue of service connection for cause of death.  In February 2019, the Board also denied service connection for cause of death.

CCK Argues Service-Connected Disabilities Led to Veteran’s Death

Following an appeal to the Court of Appeals for Veterans Claims (CAVC) and a Joint Motion for Remand, the case return to the Board.  Chisholm Chisholm & Kilpatrick LTD represented the Veteran’s spouse before the Board in September 2020.

CCK argued that the Veteran’s service-connected back and left hip disabilities caused him to fall, which led to a subdermal hematoma.  He then underwent surgery to treat the subdermal hematoma and had a stroke, which caused his death.

The Veteran’s death certificate listed his cause of death as pneumonia due to stroke ischemic.  At the time of his passing, the Veteran was rated 40 percent for his back disability and 30 percent for his left hip disability.

In an October 2018 medical opinion, a VA examiner determined that it was less likely than not that the Veteran’s service-connected conditions led to his death.  However, in a July 2020 report, another doctor determined it was at least as likely as not that his service-connected disabilities contributed substantially and materially to the fall and his cause of death.

The doctor explained that the Veteran’s advanced arthritic changes in his spine, in conjunction with his total hip replacement, were a source of pain that caused the Veteran to frequently fall and eventually led to his fatal fall.  The doctor cited many studies which linked pain and the increased risk of falls in the elderly.

Board Grants Service Connection for Cause of Death

Since all reasonable doubt must be resolved in favor of the Veteran, the Board granted service connection for cause of death.

In an October 2020 rating decision, VA awarded the Veteran’s surviving spouse DIC effective from December 1, 2011.  The spouse also received a service-connected burial allowance and Dependents’ Educational Assistance.

About the Author

Bio photo of Christine Clemens

Christine joined Chisholm Chisholm & Kilpatrick in February 2019 and was named Partner starting 2023. Her practice focuses on representing disabled veterans before Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Christine