Citation Nr: 1307574	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  09-14 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


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

Robert E. P. Jones, Counsel



INTRODUCTION

The Veteran served on active duty from September 1967 to September 1970.  The Veteran died in January 2005.  The appellant is his widow. 

This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
 
As a preliminary matter, although the March 2008 rating decision framed the issue as a petition to reopen a claim for service connection for the cause of the Veteran's death, in light of the foregoing, the claim should be adjudicated on a de novo basis.  The appellant's claim was denied in March 2005, and again in February 2006, and she did not appeal either decision.  Hence, these decisions became final.  However, VA has since amended 38 C.F.R. § 3.309(e) to establish new herbicide-related presumptions.  Where there is an intervening liberalizing law or VA issue that may affect the disposition of a claim, VA is required to conduct a de novo review of the previously denied claim.  See Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994); Pelegrini v. Principi, 18 Vet. App. 112, 125-26 (2004).  Furthermore, as the RO reopened and considered the claim on a de novo basis in an April 2009 statement of the case, the Board may also consider the claim on the merits without prejudicing the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 





FINDINGS OF FACT

1.  As reflected on his death certificate, the Veteran died from arteriosclerotic cardiovascular disease. 

2.  Although there is no medical opinion linking the Veteran's arteriosclerotic cardiovascular disease to service, the disease, which is a type of ischemic heart disease, is among those recognized by VA as etiologically related to exposure to herbicide agents. 

3.  The Veteran had active service in the Republic of Vietnam during the Vietnam Era, and thus may be presumed to have been exposed to herbicide agents during service. 


CONCLUSION OF LAW

The criteria for service connection for the Veteran's cause of death are met.  38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist 

In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991). 


II. Analysis 

To establish entitlement to service connection for the cause of a Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 

The legal authority governing claims for service connection based on herbicide exposure is also pertinent to this claim.  Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). 

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e). 

On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B Cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era.  75 Fed. Reg. 53,202 (Aug. 31, 2010).  Ischemic heart disease includes, but is not limited to, acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary by bypass surgery; and stable, unstable, and Prinzmetal's angina.  38 C.F.R. § 3.309(e).  

As indicated above, the Veteran died in January 2005.  His death certificate indicates that the immediate cause of his death was atherosclerotic cardiovascular disease.  The RO determined that the appellant is the Veteran's surviving spouse.  See VA's February 2007 decision.

The Board notes that in connection with this claim, the appellant originally asserted that the stress and the medications from the Veteran's service-connected posttraumatic stress disorder (PTSD) contributed to the Veteran's cardiovascular condition that led to his death.  In response to this assertion, in March 2009, a VA examiner reviewed the Veteran's claims file and opined that there was no evidence that the Veteran's PTSD, or the mediations used to treat PTSD, caused or contributed to the Veteran's demise. 

However, notwithstanding the appellant's assertions concerning the relationship between the Veteran's service-connected PTSD, his military service, and his death, after careful review of the record, and in consideration of the new herbicide-related presumptions, the Board finds that the record reasonably presents a basis for an award of service connection for the cause of the Veteran's death due to atherosclerotic cardiovascular disease.  As this decision represents a complete grant of benefits, there is no prejudicial error to the appellant by the Board not considering whether new and material evidence is required to reopen the previously denied claim for service connection for the cause of the Veteran's death and, if so, whether service connection is warranted.    

The Veteran's DD 214 reflects that he served in Vietnam.  The Veteran is therefore presumed to have been exposed to herbicide agents in service, and there is no evidence to rebut this presumption.  Moreover, the record clearly indicates that the Veteran died from atherosclerotic cardiovascular disease, a type of ischemic heart disease which is among those recognized by VA as etiologically related to exposure to herbicide agents. 

Under these circumstances, the Board concludes that a disability of service origin caused or contributed substantially or materially to cause the Veteran's death, and that the criteria for service connection for the cause of the Veteran's death are met. 38 C.F.R. §§ 3.309(e), 3.312 (2012).  


ORDER

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



____________________________________________
S. S. TOTH 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs