Citation Nr: 1309828	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  08-13 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 



INTRODUCTION

The Veteran served on active duty from August 1951 to July 1971.  He died in August 2000.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above, which denied service connection for cause of the Veteran's death.

The issue was previously remanded in March 2012 for additional development. 

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 served in Vietnam and is presumed exposed to herbicides.

2.  The Veteran was diagnosed with type II diabetes mellitus prior to his death.

3.  Microvascular and macrovascular diseases, to include peripheral vascular disease with ischemic ulcers, are complications of diabetes

4.  Aortic bypass for ischemic ulcers is listed on the death certificate as a significant condition contributing to death,


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death are met.  38 U.S.C.A. §§ 1110, 1113, 1116, 1131, 1137, 1310, 5107 (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

VA's Duties to Notify and Assist

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).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.

Analysis

When a Veteran dies from a service connected disability, VA shall pay dependency and indemnity compensation (DIC) to the Veteran's surviving spouse.  38 U.S.C.A. § 1310.  The death of a Veteran will be considered service connected when the evidence establishes that a service connected disability was either the principal or a contributory cause of death.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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)(1).

Service connection will be granted if it is shown that the veteran suffers from a 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 active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Diabetes mellitus is a listed chronic disease for purposes of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3).  Type II diabetes is a presumptive condition for herbicide exposed Veterans; the condition may manifest at any time following exposure.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).

Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicides.  38 C.F.R. § 3.307(a)(6).  A review of the Veteran's service personnel records reveals that he served in the Vietnam Advisory Campaign from December 1964 to March 1965, in Vietnam.  He also received numerous awards and decorations indicating service in Vietnam or in direct support of operations there, including a campaign medal and the Vietnam Service Medal.  Accordingly, both Vietnam service and herbicide exposure are established.

The Veteran's original death certificate lists COPD and respiratory insufficiency as the immediate causes of death.  Aortic bypass for ischemic ulcers is listed as a significant condition contributing to death, but was unrelated to COPD.  An ischemic ulcer is a break in the skin caused by a lack of proper blood supply to the area, related to long-standing vascular disease.  Dorland's Illustrated Medical Dictionary 1997 (32nd Ed. 2012).

In a September 2004 letter, Dr. R.R. reported that the Veteran had a 10 year history of Type 2 diabetes complicated by peripheral neuropathy and peripheral vascular disease.  He had carotid bruits, history of transient ischemic attack (TIA), and renal insufficiency.  The physician opined that the Veteran's long-standing diabetes contributed to current diffuse atherosclerotic cardiovascular disease.  He also opined that the Veteran had died as a result of complications from diffuse microvascular disease that was caused by and worsened by his long standing Type 2 diabetes.  

In a November 2012 VA opinion, the reviewing physician found that based on the available information, a diagnosis of ischemic heart disease could not be made with certainty, but has high probability considering the multiple risk factors for coronary artery disease (CAD) and the presence of severe peripheral vascular disease.  Having no medical records for the period immediately before his death, specifically, his final hospitalization report, the VA examiner found that a determination of whether diabetes or ischemic heart disease caused or contributed to his death could not be made without resort to mere speculation.  However, the examiner also stated that the Veteran's microvascular (renal) and macrovascular (peripheral vascular disease) were complications of diabetes.

Both the VA and private doctor have opined that macrovascular disease is a complication of the Veteran's diabetes.  This is manifested as peripheral vascular disease.  Type II diabetes is presumptively service-connected based on the Veteran's Vietnam service.  The evidence of record documents that the Veteran suffered from ischemic ulcers of his lower extremities due to the macrovascular disease.

Both the Veteran's treating doctor and the doctor who certified the causes of his death have stated that the care associated with the ischemic ulcers contributed to the Veteran's death.

Accordingly, service connection for the cause of the Veteran's death is warranted.


ORDER

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



____________________________________________
WILLIAM H. DONNELLY 
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs