Citation Nr: 0916095	
Decision Date: 04/29/09    Archive Date: 05/07/09

DOCKET NO.  05-28 472A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

Entitlement to service connection for the cause of the 
Veteran's death.


ATTORNEY FOR THE BOARD

James A. DeFrank, Associate Counsel


INTRODUCTION

The Veteran served on active duty with the United States 
Marine Corps from July 1964 to July 1968, and the United 
States Navy from November 1980 to January 1981.  The Veteran 
passed away on October [redacted], 1994.  The claimant (also referred 
to as "appellant") is his surviving spouse.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2004 rating decision by the 
United States Department of Veterans Affairs (VA) Regional 
Office (RO) in Buffalo, New York, which denied service 
connection for the cause of the Veteran's death and denied 
entitlement to special monthly compensation (SMC) for accrued 
benefits purposes.  Although the appellant is already 
entitled to benefits "as if" service connected for the cause 
of death under 
38 U.S.C.A. § 1151, there are a number of ancillary benefits 
to which she would not be entitled absent a finding of actual 
service-connected death; hence, there has been no full grant 
of the benefit sought.

The claimant perfected her appeal with regard to service 
connection for the cause of death by filing correspondence 
accepted in lieu of a VA Form 9, Appeal to Board of Veterans' 
Appeals, in January 2006.  Although this was outside the one 
year period from the February 2004 denial, and beyond the 60 
day period from issuance of a statement of the case (SOC) in 
September 2005, the claimant submitted or caused to be 
created additional evidence requiring the issuance of a 
supplemental statement of the case (SSOC) in December 2005; 
therefore, the time for perfection of the appeal was 
extended.  38 C.F.R. § 20.302(b)(2) (2008).

The appellant did not perfect her appeal regarding 
entitlement to SMC for accrued benefits purposes.  The 
January 2006 correspondence did not address this issue or 
otherwise indicate an intent to continue the appeal.  
Moreover, on a VA Form 9 received in February 2006, the 
appellant indicated she was abandoning the appeal; she stated 
that she had filed the claim under the misapprehension that 
the claim had not been adjudicated prior to the Veteran's 
death.  Upon discovering that entitlement to SMC had been 
addressed in a July 1997 RO decision, the claimant instead 
initiated a claim of clear and unmistakable error (CUE) with 
that decision.  As the appeal was not perfected, the issue is 
not before the Board.

In a September 2008 decision, the Board reopened the claim 
for service connection for the cause of the Veteran's death 
and remanded this issue for additional development.

Although the appellant has also initiated a number of other 
claims, to include allegations of entitlement to accrued 
benefits on additional bases, no appeal of any of these 
issues has currently been perfected; therefore, other issues 
are not before the Board at this time. 


FINDINGS OF FACT

1.  At the time of his death on October [redacted], 1994, the Veteran 
was service connected for Posttraumatic Stress Disorder. 

2.  The Veteran died in October 1994; the immediate cause of 
death was myocardial arrhythmia, due to or as a consequence 
of myocardial ischemia, due to or as a consequence of 
coronary artery atherosclerosis.

3.  The weight of the competent evidence is at least in 
relative equipoise on the questions of whether the Veteran 
had diabetes during his lifetime that was caused by Agent 
Orange exposure during his Vietnam service, and whether that 
diabetes caused or contributed substantially or materially in 
causing the Veteran's death.


CONCLUSION OF LAW

Resolving reasonable doubt in the appellant's favor, the 
criteria for service connection for the cause of the 
Veteran's death are met.  38 U.S.C.A. §§ 1310, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2008). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and 
implementing regulations impose obligations on VA to provide 
claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2008).

The VCAA is not applicable where further assistance would not 
aid the appellant in substantiating her claim.  Wensch v. 
Principi, 15 Vet App 362 (2001); see 
38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide 
assistance "if no reasonable possibility exists that such 
assistance would aid in substantiating the claim").  In view 
of the Board's favorable decision in this appeal, further 
assistance is unnecessary to aid the appellant in 
substantiating her claim. 

Factual Background

The appellant contends that the Veteran's death was due to 
diabetes which was the result of his herbicide (Agent Orange) 
exposure while in service.  The Veteran served in Vietnam 
from July November 1965 to November 1966.  Service treatment 
records contain no findings referable to myocardial 
arrhythmia, myocardial ischemia, or coronary artery 
atherosclerosis.  

In August 1992, the Veteran was admitted to the VA Medical 
Center (VAMC) in Bath, NY, with a medical history that was 
significant for PTSD and hypertension.  

The Veteran died on October [redacted], 1994.  His death certificate 
reported that his death was as a result of myocardial 
arrhythmia, due to or as a consequence of myocardial 
ischemia, due to or as a consequence of coronary artery 
atherosclerosis.  Multiple cerebral infarcts were listed on 
the death certificate as a significant factor contributing 
to, but not unrelated to, the cause of death.  

In an undated letter, Dr. H.R. wrote that the Veteran's blood 
sugars on August 27, 1992 and August 28, 1992 were abnormally 
high and should have prompted a glucose tolerance test.

In a November 2004 report, Dr. CRB offered the opinion that, 
based on findings of multiple high blood sugars, the Veteran 
had diabetes many years prior to his death.  He opined that 
the Veteran likely had uncontrolled and untreated diabetes 
several years prior to his death, and that his undiagnosed 
diabetes was a result of his Agent Orange exposure in 
Vietnam.  Dr. CRB opined that the Veteran's death was more 
likely than not due to his longstanding service-induced 
undiagnosed and untreated diabetes.  Dr. CRB noted that the 
Veteran likely had diabetes first documented in 1988 and 
later in 1992 because his fasting blood sugars were 
abnormally high into the diabetic range.  He opined that 
diabetes was likely induced by exposure to Agent Orange 
because the Veteran did not have any other medical record 
documentation of potential etiologies of his diabetes.  Dr. 
CRB opined that it was likely that the Veteran's coronary 
arteriosclerosis and cerebral infarcts were likely due to his 
longstanding diabetes because it was well known that diabetes 
causes this Veteran's type of vascular disease.

In November 2005, a VA examiner conducted a records review 
for diabetes mellitus.  The VA examiner noted that part of 
the basis of the appellant's appeal was her interpretation of 
an August 1992 admission note of the VAMC that she felt had 
indicated that the Veteran had diabetes mellitus.  The VA 
examiner interpreted the note to mean that the Veteran had no 
history of diabetes.  The VA examiner noted that, at the time 
of the Veteran's treatment in the VA, the diagnostic criteria 
for the diagnosis of diabetes was different as the diagnosis 
of diabetes was not made until the Veteran had two fasting 
glucose levels greater than or equal to 140/mg.dl.  The VA 
examiner noted that he reviewed the Veteran's glucose ratings 
that were in the VA computer database, and that the Veteran 
had slightly elevated glucose levels but none higher than 
133, which would have been considered Impaired Glucose 
Tolerance, but would not have met the diagnostic criteria for 
diabetes in 1992.  The VA examiner concluded that the Veteran 
was at risk for developing diabetes as he had Agent Orange 
exposure, obesity and Impaired Glucose Tolerance which was a 
major risk factor for diabetes; however, the VA examiner 
offered the opinion that, according to the diagnostic 
criteria at the time, the Veteran did not have diabetes at 
the time of his death in October 1994.

In an August 2006 report, Dr. CRB wrote that he disagreed 
with the November 2005 VA examiner because he felt that the 
Veteran had diabetes with his reported glucose levels of 133, 
132, and 117.  Dr. CRB opined that the Veteran's diabetes was 
caused by his exposure to Agent Orange because the Veteran 
did not have other risk factors for the development of 
diabetes.  Dr. CRB reiterated his 2004 opinion that the 
Veteran's demise was due to cardiovascular disease and 
infarcts that were caused by Agent Orange-induced diabetes. 

In November 2008, a VA examiner conducted a records review.  
The VA examiner wrote that, after a review of the Veteran's 
file, he was unable to resolve the matters of whether the 
Veteran had undiagnosed diabetes mellitus at the time of his 
death or whether any undiagnosed diabetes mellitus was 
etiologically related to or aggravated any of the Veteran's 
cardiovascular or cerebrovascular conditions, as such 
opinions would involve resorting to mere speculation.

Service Connection for Cause of Death

In order to establish service connection for the cause of the 
veteran's death, there must be a service-connected disability 
that was the principal or a contributory cause of death.  38 
U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  A service-connected 
disability will be considered the principal (primary) 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.  38 C.F.R. § 
3.312(b).  A service-connected disability will be considered 
a contributory cause of death when such disability 
contributed substantially, or combined to cause death-e.g., 
when a causal (not just a casual) connection is shown.  38 
C.F.R. § 3.312(c).

Generally, minor service-connected disabilities, particularly 
those of a static nature or those not materially affecting a 
vital organ (e.g., those disabilities affecting muscular or 
skeletal functions), are not held to have contributed to a 
death that is primarily due to unrelated disability.  
Service-connected diseases or injuries 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 diseases or injury primarily causing 
death.  38 C.F.R. § 3.312(c)(2), (3).

There are primary causes of death which by their very nature 
are so overwhelming that eventual death can be anticipated 
irrespective of co-existing conditions, but, even in such 
cases, there is for consideration whether there may be a 
reasonable basis for holding that a service-connected 
condition was of such severity as to have a material 
influence in accelerating death.  In this situation, however, 
it would not generally be reasonable to hold that a service- 
connected condition accelerated death unless such condition 
affected a vital organ and was of itself of a progressive or 
debilitating nature.  38 C.F.R. § 3.312(c)(4).

Where a veteran served 90 days or more during war time and 
diabetes becomes manifest to a degree of 10 percent or more 
within one year from date of termination of such service, the 
disease shall be presumed to have been incurred in or 
aggravated by service, even though there is no evidence of 
such disease during the period of service.  This presumption 
is rebuttable by affirmative evidence to the contrary.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 
3.309. 

If a veteran had in-service herbicide exposure, Type 2 
diabetes will be service connected if appearing any time 
after service.  38 C.F.R. § 3.309(e).  Veterans who served on 
active military, naval, or air service in the Republic of 
Vietnam during the period beginning January 9, 1962, and 
ending on May 7, 1975 (the Vietnam era), shall be presumed to 
have been exposed to an herbicide agent during such service, 
unless there is affirmative evidence to the contrary.  See 38 
U.S.C.A. § 1116(a)(3) (West 2002). 

For service connection for the cause of death of a veteran, 
the first requirement, evidence of a current disability, will 
always have been met (the current disability being the 
condition that caused the veteran to die).  However, the last 
two requirements must be supported by evidence of record.  
Ruiz v. Gober, 10 Vet. App. 352, 356 (1997); Ramey v. Brown, 
9 Vet. App. 40, 46 (1996).

In this case the Veteran's fatal myocardial arrhythmia, 
myocardial ischemia, and coronary artery atherosclerosis are 
not among the diseases subject to presumptive service 
connection on the basis of exposure to herbicides.

The availability of presumptive service connection for some 
conditions based on exposure to Agent Orange, however, does 
not preclude direct service connection for other conditions 
based on exposure to Agent Orange.  Stefl v. Nicholson, 21 
Vet. App. 120 (2007).  As such, the Board must not only 
determine whether the Veteran had a disability which is 
recognized by VA as being etiologically related to prior 
exposure to herbicide agents that were used in Vietnam (See 
38 C.F.R. § 3.309(e)), but must also determine whether his 
disability was the result of active service under 38 U.S.C.A. 
§ 1110 and 38 C.F.R. § 3.303(d).

As noted above, the death certificate shows that the Veteran 
died of myocardial arrhythmia, due to or as a consequence of 
myocardial ischemia, due to or as a consequence of coronary 
artery atherosclerosis.  The record also contains competent 
evidence by Dr. CRB that cardiovascular disease and infarcts 
were caused by diabetes, which in turn was likely caused by 
Agent Orange exposure during service.

Dr. CRB is a physician who is presumably competent to offer 
such opinion.  Dr. H.R., also a physician competent to offer 
his opinion, noted that the Veteran's blood sugars on August 
27, 1992 and August 28, 1992 were abnormally high.

Regarding the November 2008 VA reviewers conclusion that he 
was unable to resolve the matters without resorting to mere 
speculation, the Board notes that statements from doctors 
which are inconclusive as to the origin of a disease cannot 
fulfill the nexus requirement.  Warren v. Brown, 6 Vet. App. 
4, 6 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 
(1992).  In Obert v. Brown, 5 Vet. App. 30 (1993), the Court 
held that a medical opinion expressed in terms of "may" also 
implies "may or may not" and is too speculative to establish 
a plausible claim.  Bostain v. West, 11 Vet. App. 11 Vet. 
App. 124 (1998). 

Additionally, while the November 2005 VA examiner concluded 
that, according to the diagnostic criteria at the time, the 
Veteran did not have diabetes at the time of his death, the 
favorable opinion evidence includes Dr. CRB's opinion that 
the Veteran had diabetes with his reported glucose levels of 
133, 132 and 117.  
Dr. CRB's opinion was based on an examination of the 
Veteran's records and an accurate history.   This is at least 
as probative as the November 2005 VA examiner's conclusions.  
Such favorable competent opinion evidence is sufficient to at 
least place the evidence in relative equipoise on the 
question of whether the Veteran had diabetes, and whether the 
diabetes contributed substantially or materially to the 
cardiovascular disorders that more immediately caused the 
Veteran's death.  



Based on this evidence, the Board finds that the weight of 
the evidence is in relative equipoise exists in this case.  
Resolving reasonable doubt in the appellant's favor, the 
Board finds that the criteria for service connection for the 
cause of the Veteran's death have been met, and the service 
connection for the cause of the Veteran's death is warranted.  
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for the cause of the Veteran's death is 
granted.


____________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs