Citation Nr: 1134824 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 08-20 905 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to dependency and indemnity compensation (DIC) based on service connection for cause of the Veteran's death, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1966 to February 1970 and from December 1971 to December 1973. The Veteran was awarded the Combat Action Ribbon, the Vietnam Campaign Medal and the Vietnam Service Medal in connection with his combat service in the Republic of Vietnam. He died on September [redacted], 2002; the Appellant is his surviving spouse. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the RO. The Board remanded the case to the RO in September 2008 and January 2010 (via the Appeals Management Center (AMC), in Washington, D.C.). The purpose of these remands was to schedule the Appellant for a videoconference hearing, and to obtain outstanding medical records. The Board finds there has been substantial compliance with its September 2008 and January 2010 remand directives. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA's duty to assist is met; thus, it is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In June 2011, the Appellant submitted a written statement directly for the Board's consideration. She did not supply a waiver of her right to have this evidence initially considered by the RO. Insofar as this is duplicative of other evidence in the claims file, and insofar as the action taken hereinbelow is entirely favorable to the Appellant, the Board finds that a remand to the RO is not necessary and would serve only to delay the resolution of this matter without corresponding benefit to the Appellant. FINDINGS OF FACT 1. The Veteran's death certificate, dated in November 2002, reveals the immediate cause of death as "complications of chronic atrial fibrillation," and other significant conditions, including conditions contributing to death, but not related to the cause, was "status-post cerebrovascular accident." 2. The Veteran is shown to have engaged in combat with enemy in connection with his service in the Republic of Vietnam. 3. The Veteran is shown to have manifested findings of atrial fibrillation and cardiomyopathy with evidence of a reduced ejection fraction on echocardiogram and an inferolateral defect with some mild ischemia on an exercise stress test that was suggestive of possible coronary artery disease shortly prior to his death. 4. The Veteran is shown to have exhibited heart findings that as likely as not were associated with ischemic heart disease that is now deemed to have been due to his presumed herbicide exposure during his combat service in the Republic of Vietnam. 5. The Veteran's heart disease including the demonstrated cardiomyopathy are shown as likely as not to have contributed materially in producing or accelerating his demise. CONCLUSION OF LAW In resolving all reasonable doubt in favor of the Appellant, a disability manifested by ischemic heart disease due to the presumed exposure to Agent Orange that was incurred in his active service contributed materially and substantially in producing the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 1310, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (2000) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). To the extent that the action taken hereinbelow is fully favorable to the Appellant, the Board finds that all notification and development action needed to fairly adjudicate the claim has been accomplished. Further discussion of the requirements of VCAA is not required at this time. Legal Criteria When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5(a), 3.312 (2010). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2010). A principal cause of death is one which, singularly 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). A contributory cause of death is one which contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2010). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. Id. Service-connected diseases or injuries involving active processes 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 disease or injury primarily causing death. 38 C.F.R. § 3.312 (c)(4) (2010). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). In order to prevail on the issue of service connection on a direct basis there must be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the appellant cannot establish some of these elements, the appellant can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, there must be "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The record demonstrates that the Veteran served in the Republic of Vietnam during service. Specifically, he had in-country service from May 23, 1967 to January 17, 1969. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307 (2010). Particular diseases are deemed associated with herbicide exposure under VA law, and shall be service-connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) are met, and they become manifest to a degree of 10 percent or more, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Furthermore, effective August 31, 2010, VA amended the applicable herbicide regulation, 38 C.F.R. § 3.309(e), to add ischemic heart disease to the list of diseases associated with exposure to herbicide. The term "ischemic heart disease" includes, but is not limited to, 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. Pursuant to 38 C.F.R. § 3.307(a)(6)(ii), the diseases listed at §3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service in order to warrant the presumption of service connection. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides to include Agent Orange used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). As noted, the Veteran's death certificate, dated in November 2002, reveals the immediate cause of death was listed as "complications of chronic atrial fibrillation," and other significant conditions, including conditions contributing to death but not related to cause, given was listed as "status-post cerebrovascular accident." The Veteran was not service connected for any disability at the time of his death. The Appellant asserts that the Veteran's death from complications of chronic atrial fibrillation was the result of being exposed to herbicides during service in the Republic of Vietnam. As noted, the record demonstrates that the Veteran served in the Republic of Vietnam during his active duty service, and hence may qualify for the presumption delineated in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. §§ 3.307 and 3.309(e), which indicates that certain diseases may be presumed to have resulted from exposure to certain herbicide agents such as Agent Orange. In particular, the Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and ischemic heart disease, as provided for in 38 C.F.R. § 3.309(e). Notably, the Veteran's medical record prior to his death shows a long history of treatment for various cardiac disorders leading up to his death. In this regard, a private hospital personal history and physical examination report, dated in February 1999, indicates complaints of a 2 week history of dyspnea and tightness in his chest. When seen on the morning of his admission to the hospital, the Veteran was found to be in atrial fibrillation at a rate of 130 to 150, and was being admitted for conversion from atrial fibrillation with questionable ischemia and some mild congestive heart failure on the basis of atrial fibrillation. Here, the Veteran was diagnosed with acute atrial fibrillation with questionable ischemia and questionable mild congestive heart failure, along with cholesterol abnormality. In April 1999, the Veteran was noted to have had an echocardiogram that demonstrated a reduced ejection fraction and an exercise stress test that showed an inferolateral defect and some mild ischemia. It was noted that he had cardiomyopathy that was related to possible coronary disease. The private hospital records, dated in May 2000, show findings of paroxysmal atrial fibrillation, presumably related to cardiomyopathy, hypertension, mitral regurgitation or possibly idiopathic, history of cerebrovascular accident on the right with left upper extremity paresis, cardiomyopathy, etiology unclear, presumably hypertensive or idiopathic, mild-to-moderate mitral regurgitation, in part related to atrial fibrillation, congestive heart failure, and history of previous cigarette smoking. Significantly, a report from the same time period reflects no history of hypertension or diabetes, and no myocardial infarction, but positive findings for cardiomyopathy and atrial fibrillation. The VA treatment records, dated in 2002, show a history of paroxysmal atrial fibrillation beginning in 1999 when the Veteran was hospitalized. These records reflect treatment with anticoagulants and indicate findings of paroxysmal atrial fibrillation with congestive cardiomyopathy, history of cerebrovascular incident with left hemeparesis with resulting seizures, no hypertension, and no recent congestive heart failure or congestive heart failure symptoms. Specifically, an echocardiogram report, dated in February 2002, reveals findings of normal left atrium/right atrium, mild increase in right ventricle size, normal aortic root and valve leaflets/excursion, no aortic regurgitation, no valve stenosis, normal mitral valve, mildly dilated left ventricle with normal wall thickness and mildly depressed global function, hypokinesis of mid-anterolateral and anteroapical segments, normal right ventricle function, normal tricuspid and pulmonic valves, no pericardial effusion, and inact interatrial septum by transthoracic echocardiography. In viewing the totality of the evidence of record, and in consideration that ischemic heart disease, including, but not limited to atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) has been added to the list of diseases for which the Secretary has determined there is an association with exposure to certain herbicide agents, the Board concludes that the Veteran is shown as likely as not to have exhibited findings that were consistent with ischemic heart disease that is linked to his presumed Agent Orange exposure incident to his combat service in the Republic of Vietnam. To the extent that heart disease is shown to have played an overwhelming role in causing his demise, service connection for the cause of the Veteran's death is warranted . In consideration of the benefit-of-the-doubt doctrine, the Appellant's claim for DIC based on service connection for cause of the Veteran's death must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER DIC based on service connection for cause of the Veteran's death is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs