Citation Nr: 1007226 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-20 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Polly Murphy, Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The Veteran had active military service from July 1966 to April 1970. He died in August 2004. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006, June 2007, and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, that denied the benefit sought on appeal. Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the appellant's claim for service connection for the cause of the Veteran's death. This is so because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'd 8 Vet. App. 1 (1995). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Hence, the Board has characterized the claim for service connection for the cause of the Veteran's death as one to reopen. The Board acknowledges that following certification of the appellant's appeal by the RO to the Board in December 2009, the appellant submitted additional evidence. This evidence was received by the Board in January 2010. The Board notes, however, that the appellant, through her representative, waived initial RO consideration of this evidence in writing and requested that the Board review the newly submitted evidence in the first instance. There is thus no need for the Board to remand review of this evidence to the RO. See 38 C.F.R. § 20.1304 (2009). The appellant testified before the undersigned Acting Veterans Law Judge at a videoconference hearing in January 2010. A transcript of the hearing has been associated with the appellant's claims file. FINDINGS OF FACT 1. In a December 2004 rating decision, the RO denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant did not timely perfect an appeal to that decision, which became final. 2. Evidence received since the December 2004 decision is new; it relates to an unestablished fact necessary to substantiate the appellant's claim for service connection for the cause of the Veteran's death, and raises a reasonable possibility of substantiating the claim. 3. The Veteran died in August 2004; the immediate cause of death was atherosclerotic cardiovascular disease, with hypertension listed as a significant condition contributing to death. 4. At the time of his death, the Veteran was service connected for posttraumatic stress disorder, rated as 100 percent disabling; he was not service connected for hypertension or atherosclerotic cardiovascular disease. 5. Resolving reasonable doubt in the appellant's favor, the hypertension that materially contributed to the cause of the Veteran's death was likely causally related to the posttraumatic stress disorder for which the Veteran was service connected. CONCLUSIONS OF LAW 1. A December 2004 rating decision that denied the appellant's claim for service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2009). 2. Since the prior final denial of the appellant's claim for service connection for the cause of the Veteran's death, new and material evidence has been received; hence, the requirements to reopen the claim have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1310 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Kent v. Nicholson, 20 Vet. App. 1 (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that a detailed discussion of the Board's compliance with the notice and duty to assist provisions is not necessary. This is so because the Board is taking action favorable to the appellant in reopening and granting her claim for service connection for the cause of the Veteran's death, and the decision at this point poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (July 24, 1992), 57 Fed. Reg. 49,747 (1992). A. Petition to Reopen the Previously Denied Claim In a December 2004 rating decision, the RO denied the appellant's claim for service connection for the cause of the Veteran's death. The appellant did not timely perfect an appeal, and the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2009). In February 2006, the appellant sought to reopen her claim for service connection for the cause of the Veteran's death. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). During the pendency of the appellant's appeal, VA revised 38 C.F.R. § 3.156. See 71 Fed. Reg. 52,455-57 (Sept. 6, 2006). The amended regulation became effective October 6, 2006. The Board notes that none of the revisions to the regulation, which relate to receipt of additional service department records, affects the appellant's pending claim. In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282- 83 (1996). Here, as indicated above, the last final denial pertinent to the claim for service connection for the cause of the Veteran's death was the December 2004 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The appellant filed her original application for service connection for the cause of the Veteran's death in August 2004. The RO denied the claim in December 2004, finding that the medical evidence did not link the cause of the Veteran's death to his military service, given that he was service- connected only for posttraumatic stress disorder (PTSD) but was noted on his death certificate to have died of atherosclerotic cardiovascular disease. As such, the RO found that a grant of service connection was precluded. This decision was not timely appealed and therefore became final. A review of the evidence added to the record since the RO's prior decision reflects that the appellant has submitted a letter from a private physician, dated in January 2010. In the letter, the physician indicates that he reviewed both the Veteran's medical records and the death certificate. The physician opines that the Veteran's service-connected PTSD "contributed materially and substantially to [the Veteran's] death." He reasons that PTSD causes the body to produce excess adrenaline, which is "well known to cause high blood pressure." Thus, the physician concludes, the Veteran's "PTSD was a very good and likely cause of his high blood pressure which resulted in his heart attack causing his death." As such, the Board finds that medical evidence, in the form of the private physician's in January 2010 letter, is "new" in the sense that it was not previously before agency decision makers. The Board also finds that the newly submitted evidence is not cumulative or duplicative of evidence previously considered and is thus "material" for purposes of reopening the appellant's claim. In this regard, the Board notes that in the December 2004 decision, the RO denied the appellant's claim because it was unable to establish that the Veteran's psychiatric disability contributed to his death. Prior to the receipt of the above- identified medical evidence, the appellant had not provided medical evidence supporting her contention that the Veteran's hypertension was causally related to his service-connected PTSD. Newly submitted medical evidence, however, reflects the existence of a likely etiological link between the Veteran's service-connected PTSD and the hypertension that was a "significant condition contributing to death." Because it helps to corroborate the appellant's contention that the Veteran's service-connected PTSD was etiologically related to a proximate cause of his death, this medical evidence adds to the record in a way that it should be considered new and material. The Board thus finds that the identified medical evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As new and material evidence, in the form of medical evidence documenting an etiological relationship between the Veteran's service-connected PTSD and the hypertension and heart disease that caused his death, has been submitted, the Board finds that the criteria for reopening the claim for service connection for the cause of the Veteran's death have been met. B. Service Connection for the Cause of the Veteran's Death The Veteran died in August 2004. According to his death certificate, the immediate cause of death was atherosclerotic cardiovascular disease, with hypertension identified as a "significant condition contributing to death." The appellant seeks to establish service connection for the cause of the Veteran's death. She maintains that the Veteran's death should be service connected because a contributory cause of the Veteran's death, hypertension, was caused by the Veteran's service-connected PTSD. A surviving spouse of a qualifying Veteran who died of a service-connected disability is entitled to receive Dependency and Indemnity Compensation benefits. 38 U.S.C.A. § 1310 (West 2002 and Supp. 2009); 38 C.F.R. § 3.312 (2009). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was either the principal or contributory cause of death. Id. To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2009). To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(c) (2009). In effect, the service- connected disability, to be a contributory cause of death, must be shown to have aided or lent assistance to the cause of death, combined with the principal cause of death. Id. It is not sufficient to show that it casually shared in producing death; instead, a causal relationship must be shown. Id. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2009). According to his death certificate, the Veteran died on August [redacted], 2004. The immediate cause of death was listed as atherosclerotic cardiovascular disease. Hypertension was listed in the death certificate as a significant condition that contributed to the Veteran's death but that did not result in the underlying cause. The appellant asserts that the Veteran's hypertension developed as a result of his service-connected PTSD. Because hypertension was listed on the death certificate, the appellant contends that service connection is warranted for the cause of the Veteran's death. At the time of his death, the Veteran was service connected for PTSD, evaluated as 100 percent disabling. There is no indication in the record that that disability was a principal or contributory cause of the Veteran's death. A review of the post-service medical records reveals that the Veteran was treated for hypertension in the years immediately preceding his death at the Jack C. Montgomery VA Medical Center (VAMC) in Muskogee, Oklahoma. He was diagnosed with hypertension at least as early as 2003 and was prescribed medication to treat the disability. An August 2003 VAMC treatment note indicates that the Veteran was noncompliant with his blood pressure medication and, as a result, his hypertension was noted to be "uncontrolled." He was still receiving medication and treatment for hypertension from the VAMC in May 2004, shortly before his death. Based on the evidence, it is clear that hypertension was a contributory cause of the Veteran's death. Hypertension was listed as a "significant" cause on the death certificate. Thus, if the evidence in fact shows that the Veteran's hypertension was incurred in active military service or etiologically linked to a service-connected disability, service connection for the cause of his death would be warranted. The Veteran's service medical records are negative for a diagnosis of or treatment for hypertension. His separation examination was normal with respect to his heart and blood pressure. Even though there is no direct evidence of the Veteran developing hypertension during service, however, service connection for the cause of the Veteran's death may still be warranted if the post-service diagnosis of hypertension can be linked to service, or to the Veteran's service-connected PTSD. In that connection, the Board notes that the appellant submitted a letter in January 2010 from a private physician addressing the possibility of an etiological link between the Veteran's service-connected PTSD and his death. In the letter, the physician indicates that he reviewed both the Veteran's medical records and the death certificate. The physician noted the Veteran's diagnosis and ongoing treatment for hypertension in the years before his death and opined that the Veteran's service-connected PTSD "contributed materially and substantially to [the Veteran's] death." He reasoned that medical literature and research has established that PTSD causes the body to produce excess adrenaline, which is "well known to cause high blood pressure." The physician further reasoned that PTSD is a "well known causal disease for stress and subsequently for hypertension," which was likely a cause of the atherosclerotic heart disease that caused the Veteran's death. Thus, the physician concludes, the Veteran's "PTSD was a very good and likely cause of his high blood pressure which resulted in his heart attack causing his death." Based on the evidence of record, the Board finds that it is at least as likely as not that the Veteran's hypertension was attributable to his service-connected PTSD. A private physician, upon review of the Veteran's medical records and death certificate, has linked the Veteran's hypertension to his service-connected PTSD. The physician stated that he reviewed the Veteran's medical records and his death certificate and considered both the specific evidence relevant to the case as well as his medical expertise in concluding that the Veteran's PTSD was a "very good and likely cause of his high blood pressure which resulted in his heart attack causing his death." Significantly, the Board notes that there is no medical evidence in the record to suggest that the Veteran's service-connected PTSD was not etiologically related to his hypertension. Thus, the Board concludes that the Veteran's service-connected PTSD is etiologically linked to the hypertension identified as a "significant condition" that was a contributory cause of the Veteran's death. Under the circumstances, the Board is persuaded that the Veteran's hypertension-which ultimately was a contributory cause of his death-was at least as likely as not causally related to his service-connected PTSD. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). The claim for service connection for the cause of the Veteran's death is therefore granted. ORDER New and material evidence to reopen the claim of service connection for the cause of the Veteran's death has been received; the appeal is granted. Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs