Citation Nr: 1303911 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-13 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had over 20 years of active service ending with his retirement in July 1969. He died in April 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In July 2009, the appellant and her daughter testified before an Acting Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims folder. In February 2010, the Board advised the appellant that a temporary stay had been imposed on claims potentially involving a service connection theory of ischemic heart disease being presumed as due to exposure to herbicides within the Republic of Vietnam during the Vietnam era, as the Secretary had been in the process of issuing new regulations. A final rule was issued in August 2010 and became effective August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). Subsequently, the stay on processing claims affected by the herbicide-related presumptions was lifted effective October 30, 2010. See Chairman's Memorandum No. 01-10-37, dated November 1, 2010. In March 2011, the Board referred this case to the Veterans Health Administration (VHA) for expert medical opinions. Two separate VHA opinions, dated in May 2011, were provided by a cardiologist and a gastroenterologist. Thereafter, in January 2012, the Board received a clarifying opinion (which is undated) from a VHA cardiologist. The appellant has been provided copies of these opinions and an opportunity to present additional evidence and/or argument in support of her claim. In May 2012, the Board remanded this case so as to afford the appellant an opportunity for another hearing. In this respect, the Acting VLJ who conducted the hearing in July 2009 was no longer employed by the Board, and the appellant expressed her desire to testify before another VLJ who would be deciding her case. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In November 2012, the appellant testified at a hearing before the undersigned VLJ sitting at the RO. A copy of the hearing transcript is associated with the Virtual VA electronic storage records system only. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in April 2007. A contributing cause of death includes small bowel ischemia. 2. At the time of his death, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD), evaluated at 50 percent disabling; residuals of lung cancer with restrictive lung physiology, evaluated at 30 percent disabling; hiatal hernia, evaluated at 30 percent disabling; right foot plantar wart, evaluated as 10 percent disabling; post-operative varicose veins of the right leg, evaluated as 10 percent disabling; deviated septum, rated as noncompensable; nasal scar, rated as noncompensable; and left shoulder scar, rated as noncompensable. The combined evaluation was 80 percent, and the Veteran was in receipt of an award of a total disability rating based upon individual unemployability (TDIU) effective February 14, 2003. 3. The Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam. 4. The Veteran's ischemic heart disease is presumed to be a result of exposure to herbicides. 5. The medical evidence establishes that the Veteran's peripheral vascular disease (PVD) is causally related to his exposure to herbicides and interrelated with his service-connected varicose veins of the right leg. 6. The Veteran's contributing cause of death, small bowel ischemia, resulted from service-connected PVD complications. 7. The Veteran's service-connected ischemic heart disease contributed to his cause of death. CONCLUSION OF LAW Service connection for the Veteran's cause of death is warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, the Board has granted the benefit being sought on appeal in full. Accordingly, 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 discussed. The appellant asserts that service connection is warranted for the cause of the Veteran's death. Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran's death may be demonstrated by showing that the Veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. §§ 1110, 1131. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease (including hypertension), may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). The Veteran's service personnel records reflect that he performed temporary duty assignments (TDYs) in the Republic of Vietnam during the Vietnam War. During his lifetime, the Veteran reported that his duties entailed accompanying aerial combat missions. He also reported being stationed on land in Vietnam wherein he was exposed to enemy fire. The RO has conceded that the Veteran "set foot" in Vietnam during the Vietnam Era. Thus, the Veteran is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i). Effective August 31, 2010, VA published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish presumptive service connection for 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. 53,202 (August 31, 2010). For purposes of 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as PVD or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 3. Service connection is also warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans' Claims (Court) has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran had active duty from February 1949 to July 1969. He died in April 2007. His death certificate lists the causes of his death as cardiac arrest due to cerebrovascular accident (CVA) (onset of one days' duration before death), sepsis (onset of 2 weeks duration before death) and acute renal failure (onset of 1 weeks' duration before death). Additionally, small bowel obstruction was identified as a significant condition contributing to death, but not resulting in the underlying cause of death. However, there is some controversy in this case as to whether the Veteran, in fact, had a CVA prior to his death. The Veteran's terminal records at Mercy Medical Center reflect that, on April [redacted], 2007, he underwent emergency surgery for small bowel obstruction which required resection of 2.5 feet of small bowel. Post-surgery, the Veteran was initially described as lethargic but easily arousable. He progressively became more lethargic and responsive to painful stimuli only. The Veteran's mental status symptomatology was originally attributed to the possible effects of narcotic analgesics and Haloperidol. Yet, when he began to have runs of paroxysmal atrial fibrillation, the Veteran's physicians began to suspect that he may have sustained ischemic cerebrovascular accident. Unfortunately, the Veteran quickly developed a complex irregular heart rate which progressed to asystole in 10 minutes. A CVA was never confirmed. In May 2011, a VHA cardiologist provided opinion that the record did not objectively document that the Veteran suffered a CVA prior to his death. It was thought that the Veteran's altered mental status was more likely associated with cerebral hypoperfusion - ischemic and/or toxic encephalopathy. Another VHA opinion (undated but received in January 2012) opines that the Veteran's death was likely due to his abdominal process, and not associated with ischemic heart disease. At the time of his death, service connection was in effect for the following disabilities: PTSD, evaluated at 50 percent disabling; residuals of lung cancer with restrictive lung physiology, evaluated at 30 percent disabling; hiatal hernia, evaluated at 30 percent disabling; right foot plantar wart, evaluated as 10 percent disabling; post-operative varicose veins of the right leg, evaluated as 10 percent disabling; deviated septum, rated as noncompensable; nasal scar, rated as noncompensable; and left shoulder scar, rated as noncompensable. The combined evaluation was 80 percent, and the Veteran was in receipt of an award of TDIU effective February 14, 2003. During his lifetime, the Veteran had a complex medical history. In service, he had a history of symptomatic varicose veins of the right leg which resulted in a phlebotomy of the great saphenous vein in June 1958. He had a history of epigastric distress diagnosed as duodenitis, and chest pain diagnosed as questionable costochondritis. At his separation examination in February 1969, the Veteran was diagnosed with mild pulmonary restrictive disease. An electrocardiogram was significant for incomplete right bundle branch block pattern (RBBB), but was otherwise within normal limits. Post-service, the Veteran reported a history of a cardiac catheterization performed in approximately 1975, but those records are unavailable. The Veteran reported that this study demonstrated mild coronary artery disease (CAD). Many years later, the Veteran had a history of chronic paroxysmal atrial fibrillation. He may have suffered a myocardial infarction (MI) in December 2003, but the findings are unclear. He also had a history of hypertension. In pertinent part, the Veteran underwent a left nephroureterectomy due to transitional cell carcinoma of the left renal pelvis in August 1987. Thereafter, there were no recurrences of renal cancer or metastasis therefrom. In 1989, the Veteran was treated for presumed ocular histoplasmosis of both eyes. It was felt that the histoplasmosis was caused by an inactive fungal infection of the retina which occurred many years prior. This condition resulted in legal blindness. In 1990, the Veteran underwent right common femoral endarterectomy, profunda plasty, and femoral-popliteal bypass with spliced saphenous vein due to PVD. This condition resulted in lower extremity weakness with circulatory disturbance. In September 1994, the Veteran underwent a left upper lobe lobectomy due to large cell lung cancer. Thereafter, the Veteran held diagnoses of chronic obstructive pulmonary disease with several hospitalizations due to pneumonia. As noted above, the Veteran was service-connected for residuals of lung cancer with restrictive lung physiology. There were no recurrences, or metastasis, of large cell lung cancer. In 1996, the Veteran underwent repair of an abdominal aortic aneurysm (AAA). In July 2002, the Veteran underwent small bowel resection due to ischemic bowel disease with obstruction. In December 2006, the Veteran underwent a total abdominal colectomy with ileostomy due to a diagnosis of toxic megacolon secondary to C-diff colitis. In April 2007, the Veteran was hospitalized at Mercy Medical Center due to another small bowel obstruction. As reported above, the Veteran underwent emergency surgery, but passed away during this hospitalization. Effective August 31, 2010, the Veteran's ischemic heart disease may be presumed due to herbicide exposure under 38 C.F.R. § 3.309(e) and, thus, be deemed service-connected for purposes of this decision. The Veteran's renal cancer, ocular histoplasmosis of both eyes, PVD, abdominal aortic aneurysm and small bowel ischemia are not subject to presumptive service connection under 38 C.F.R. § 3.309(e) as due to herbicide exposure. Likewise, his possible CVA is not subject to presumptive service connection as the regulation makes it clear that the term ischemic heart disease does not include a stroke. 38 C.F.R. § 3.309(e), Note 3. Nonetheless, the Board must also consider whether the Veteran's renal cancer, ocular histoplasmosis of both eyes, PVD, abdominal aortic aneurysm and/or small bowel ischemia are due to active service, including herbicide exposure, and/or service-connected disability. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that even if a Veteran is not entitled to presumptive service connection for a disability as due to herbicide exposure, service connection on a direct basis also must be considered). The following medical diagnoses and opinions provide significant probative value in support of this claim. An August 2002 VA examiner provided the following diagnosis: Varicose veins right leg. It is as likely as not that right femoral popliteal bypass, varicose veins, and arterial claudication to right lower leg are interrelated conditions. Moderate-severe functional impairment; however, cannot separate the varicose veins from the arterial impairment condition. A May 2004 VA cardiology consultation, which provided a diagnosis of angina pectoris, included the following discussion regarding the Veteran's PVD: Other manifestations of arterial disease include the fact that the patient has had an abdominal aortic aneurysm repair. He has peripheral vascular disease with revascularization of the lower leg with a fem-pop bypass and now more recently had a very small degree of bump in his cardiac enzymes. In May 2011, a VHA gastroenterologist provided an opinion that the Veteran's small bowel obstructions were clearly related to adhesions from several abdominal surgeries. A May 2011 VHA cardiologist opinion found that the likely cause of the Veteran's death was small bowel ischemia with sepsis and sepsis shock. This examiner identified the following conditions as being related to the Veteran's PVD: aortic aneurysm repair; right femoral-popliteal bypass surgery; right femoral-popliteal occlusion; bilateral superficial femoral artery (SFA) occlusion; left iliac stenosis of 75 percent and redo of right femoral-popliteal common iliac endartectomy. The examiner also indicated that the Veteran's ischemic large and small bowel surgeries were associated with PVD. The examiner also stated that there was a likelihood greater than 50 percent that the Veteran's ischemic heart disease and hypertension were due to herbicide exposure. He further concluded that, while the Veteran's ischemic heart disease did not likely cause his death, there was a likelihood greater than 50 percent that such may have contributed to it. Another VHA examiner (in an undated opinion received in January 2012) opined that it is likely that the Veteran's hypertension and PVD were related to the Veteran's active service and exposure to herbicides. The Board finds that service connection for the cause of the Veteran's death is warranted. In this regard, the record includes a VHA opinion that the Veteran's PVD is related to herbicide exposure as well as an August 2002 VA examiner opinion that the Veteran's service-connected varicose vein disability of the right leg was "interrelated" to the Veteran's PVD. Thus, applying the benefit of the doubt doctrine in favor of the claimant, the Board finds that the Veteran's PVD is of service-connected origin. 38 U.S.C.A. § 5107(b). Furthermore, the May 2011 VHA gastroenterologist and cardiologist examiners opined that the Veteran's small bowel ischemia was a contributing cause to his death (if not the primary cause of death) that was related to adhesions from his several abdominal surgeries. A May 2004 VA cardiologist opined that the Veteran's arterial disease disability included the history of abdominal aortic aneurysm repair and PVD surgeries. The May 2011 VHA cardiologist stated that the Veteran's ischemic large and small bowel surgeries were associated with PVD. Thus, the Board further finds that a contributing cause of death, small bowel ischemia, results from service-connected PVD complications. Furthermore, the May 2011 VHA cardiologist examiner concluded that, while the Veteran's ischemic heart disease did not likely cause his death, there was a likelihood greater than 50 percent that such may have contributed to it. Therefore, in light of the opinions demonstrating that the Veteran's service-connected PVD and ischemic heart disease contributed to the cause of the Veteran's death, the appellant's claim is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs