Citation Nr: 1304029 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 11-16 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION 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). The Veteran served on active duty from September 1944 to May 1947. He died in September 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the appellant's claim for service connection for the cause of the Veteran's death. Notably, the appellant submitted additional evidence in support of a claim for Dependency and Indemnity Compensation (DIC) benefits in July 2009. Receipt of this evidence was construed by the RO as a new claim for benefits. The RO issued an August 2010 rating decision which declined to reopen the appellant's previously denied claim for service connection for the cause of the Veteran's death on the grounds that the evidence received was not new and material. Given that the appellant's July 2009 submission was filed well within one year of the November 2008 rating decision, and appears to contest the denial of service connection for the cause of the Veteran's death, the Board finds that it may be construed as a notice of disagreement (NOD) with the November 2008 rating decision. See 38 C.F.R. § 20.201 (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes a NOD; special wording not required); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement"). Therefore, the Board will address the appellant's claim on the merits, rather than applying the standard of new and material evidence. The Veteran's Virtual VA file has also been reviewed as part of the appellant's claim. FINDINGS OF FACT 1. The Veteran's death certificate indicates that he died in September 2008 at the age of 83. The immediate cause of death was cardiopulmonary arrest, due to coronary artery disease, due to arteriosclerotic heart disease; metastatic carcinoma of the prostate was listed as a significant condition contributing to death but not resulting in the underlying cause. 2. At the time of his death, the Veteran was service-connected for bilateral hearing loss, rated as 70 percent disabling, and posttraumatic stress disorder (PTSD), rated as 30 percent disabling. The Veteran was also assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Service-connected PTSD aggravated the Veteran's coronary artery disease and hastened his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). The appellant contends that the Veteran's service-connected PTSD aggravated the coronary artery disease that caused his death. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). The Veteran died in September 2008. The death certificate lists the immediate cause of death as cardiopulmonary arrest, due to coronary artery disease, due to arteriosclerotic heart disease. Metastatic carcinoma of the prostate was listed as a significant condition contributing to death but not resulting in the underlying cause. At the time of his death, the Veteran was service-connected for bilateral hearing loss (rated as 70 percent disabling), and PTSD (rated as 30 percent disabling). The Veteran was also assigned a TDIU. A July 2009 statement from Dr. A.R.N., a VA physician, noted studies showing that patients with PTSD are at higher risk for premature coronary artery disease, and death related to premature coronary artery disease, as compared with the population of patients without underlying PTSD. A June 2010 statement from Dr. A.R.N. indicated that there are some studies that show a relationship between PTSD and coronary heart disease. One specific study concluded that there is a prospective association between PTSD symptoms and coronary heart disease even after controlling for depressive symptoms. It suggested that higher levels of PTSD symptoms may increase the risk of coronary heart disease in older men. The Veteran had coronary heart disease, congestive heart failure, and hypertension among the multiple medical conditions that contributed to his death. Based on this study and an additional study, Dr. A.R.N. concluded that the Veteran's PTSD probably hastened his death. A VA opinion was obtained in August 2010. The examiner reviewed the claims file and concluded that the Veteran's death was not caused by any of his service-connected disabilities. He noted that the Veteran had multiple disease entities, including metastatic prostate cancer, coronary artery disease, atrial fibrillation, and a MRSA infection, and further stated that none of these problems can be linked to either PTSD or a hearing deficiency. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds that the Veteran's PTSD aggravated his coronary artery disease. While the August 2010 VA opinion concluded that there was no link between the Veteran's PTSD and the conditions that caused his death, no bases or explanations were provided to support this conclusion. The failure of the physician to provide a basis for his/her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In contrast, the July 2009 and June 2010 opinions from Dr. A.R.N. collectively stated that PTSD hastened the Veteran's death. This conclusion was based on previous studies which found a positive association between PTSD and coronary heart disease, including death from premature coronary heart disease. These opinions are more probative in assessing whether heart disease was aggravated by PTSD. Therefore, the Board finds that coronary artery disease was aggravated by service-connected PTSD. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, 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) (2011). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2012). Coronary artery disease was aggravated by a service-connected disability, and is therefore also considered to be service-connected. This condition was also listed on the Veteran's death certificate as one of the principal causes of his death. Thus, the Board concludes that the Veteran's death was due to a service-connected disability, and service connection for the cause of his death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs