Citation Nr: 1127658	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  04-20 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel




INTRODUCTION

The Veteran served on active duty from March 1966 to April 1970.  He had service in the Republic of Vietnam from September 1966 to October 1967.  He died in February 1986.  The appellant in this matter is his surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California.

On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, to include ischemic heart disease.  While regulations to implement the Secretary's decision were pending, the Secretary, on November 20, 2009, directed the Board to stay action on all claims for service connection that could not be granted under current law but that potentially might have been granted based on the planned new presumptions of service connection for ischemic heart disease based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era.

On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era.  See 75 Fed. Reg. 53,202 (Aug. 31, 2010).  The final rule was effective August 31, 2010.  However, the rule was identified as a major rule and, thus, the implementation of the rule was subject to the provisions of the Congressional Review Act (CRA).  The CRA requires an agency to wait 60 days before implementing a major rule to allow Congress the opportunity to review the regulation.

On October 29, 2010, the Secretary issued a memorandum lifting the stay of appeals affected by the new herbicide-related presumptions.  The memorandum notes that the CRA waiting period for the regulation expired on October 30, 2010, and accordingly, the stay of the adjudication of the affected claims was lifted effective October 30, 2010.  

Moreover, the Board notes that the issue on appeal arose out of a request to reopen a previously denied claim.  The regulatory change noted above is liberalizing in nature and has in effect created a new basis of entitlement.  As such, de novo review of the claim is appropriate, obviating application of 38 C.F.R. § 3.156, concerning new and material evidence.  Spencer v. Brown, 4 Vet. App. 283 (1993); Karnas v. Derwinski, 1 Vet. App. 308 (1991).  Thus, while the appellant's claim was adjudicated on the basis of the new and material evidence, the Board has recharacterized the issues above to comport with this determination.


FINDINGS OF FACT

1.  The Veteran died on February [redacted], 1986.  The immediate cause of death was ventricular tachycardia as due to myocardial infarction.

2.  At the time of the Veteran's death, there were no service connected disabilities.

3.  The Veteran served in Vietnam, is presumed to have been exposed to Agent Orange/herbicides therein.

4.  Myocardial infarction is related to Vietnam service




CONCLUSION OF LAW

A disability incurred in service contributed to death.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159(a), 3.303, 3.307, 3.309, 3.312 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  In this case, the Board is granting, in full, the benefit sought on appeal.  Accordingly, because the benefit sought is granted, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.

Legal Criteria and Analysis

To grant service connection for the cause of a veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it.  A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disease or injury.  38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2010)

The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death.  38 C.F.R. § 3.312(a) (2010).

The 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) (2010).

The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death.  It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312(c) (2010).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a) (2010).  The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2010) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2010) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; hairy cell leukemia and other chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); Parkinson's disease; and ischemic heart disease.  38 C.F.R. § 3.309(e) (2010).  Note 3 at the end of § 3.309 defines ischemic heart disease as not including hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke.

The above reflects changes to the Code of Federal Regulations which became effective August 31, 2010 which amended 38 C.F.R. § 3.309(e) to include ischemic heart disease.  75 Fed. Reg. 53202 (August 31, 2010).  The pertinent part of that amendment added the following to § 3.309(e): "Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)."  75 Fed. Reg. 53202, 53216 (August 31, 2010).  This amended rule applies to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. 75 Fed. Reg. 53202 (August 31, 2010).  Id.  As the appellant's claim was pending on August 31, 2010, the changes are applicable to the immediate case.  

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  38 C.F.R. § 3.307(a)(6)(ii) (2010).

The appellant has appealed the denial of service connection for the cause of the Veteran's death.  The Veteran's certificate of death indicates that he died on February [redacted], 1986; he was 37 years of age.  The immediate cause of death was ventricular tachycardia which had onset hours before his death, due to myocardial infarction which had an onset days before his death.  At the time of his death, the Veteran was not service connected for any disability.

The Veteran had service in the Republic of Vietnam from September 1966 to October 1967.  Therefore, it is presumed he was exposed to Agent Orange.  

As noted, the death certificate shows that he died of ventricular tachycardia with an onset of hours prior to death, due to myocardial infarction which had an onset days before death.  Under 38 C.F.R. § 3.309(e), coronary artery disease and acute myocardial infarction are classified as ischemic heart disease for which a presumption applies under 38 C.F.R. § 3.307.  The Veteran is presumed to have been exposed to herbicides and developed ischemic heart disease that is now a disability presumptively linked to herbicide exposure.  As ischemic heart disease is demonstrated to be the primary cause of death, service connection for the cause of the Veteran's death is thereby warranted.


ORDER

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



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs