Citation Nr: 1311669 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-00 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of death. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran, prior to his death in July 2007, served on active duty form July 1955 to June 1958, from March 1960 to December 1966, and from January 1967 to January 1978, to include service in Vietnam. The appellant in this matter is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In December 2008, the appellant requested that she be afforded a Board hearing in Washington, DC, and that request was subsequently withdrawn. She then sought an RO hearing, but all requests for a hearing were then withdrawn in March 2009 and, the appellant has specifically directed the RO to forward her case be forwarded to the Board for review on the basis of the evidence on file. FINDINGS OF FACT 1. The Veteran had land service while on active duty in Vietnam and must be presumed to have been exposed to one or more toxic herbicides, including Agent Orange. 2. The Veteran died in July 2007 and the cause of his death was an intracerebral hemorrhage, due to or as a consequence of hypertensive cardiovascular disease. 3. During the Veteran's lifetime, service connection was established for post-traumatic stress disorder (PTSD), evaluated as 100 percent disabling, and for residuals of a left shoulder injury, evaluated as 0 percent disabling. 4. It is at least as likely as not that the Veteran's service-connected PTSD was a contributory cause of his death based on its aggravation of a direct cause of death; namely, nonservice-connected hypertensive cardiovascular disease. 5. Service-connected disability contributed to the Veteran's fatal cerebral hemorrhage. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, service-connected PTSD contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the disposition herein reached is favorable to the appellant, the need to discuss further the VA's efforts to comply with its duties to notify and assist is obviated. Service connection for the cause of a veteran's death may be granted if a disorder 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. A service-connected disorder is one that was incurred in or aggravated by active service or one for which there exists a rebuttable presumption of service incurrence if manifested to the required degree within the requisite period following a veteran's separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). It may also be one that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the 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(b), (c). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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 C.F.R. § 3.307(a)(6)(iii). In addition to the forgoing, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that he rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). By regulation made effective August 31, 2010, certain additional diseases were added to the aforementioned list, to include all B-cell leukemias, Parkinson's disease, and ischemic heart disease, excluding specifically hypertension. Id.; see 75 Fed. Reg. 53202 (Aug. 31, 2010). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997) (specific applicability in Agent Orange cases). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran died in July 2007 as an inpatient at Gulf Coast Medical Center. His death certificate indicates that the immediate cause of his death was an intracerebral hemorrhage, due to or as a consequence of hypertensive cardiovascular disease. During his lifetime, service connection was established for PTSD, evaluated as 100 percent disabling from August 2000, and for residuals of a left shoulder injury, evaluated as 0 percent disabling from May 1986. The appellant asserts that the Veteran's PTSD played a primary role in causing his death. She avers that the Veteran's cardiovascular disease was the result of daily panic attacks he experienced as part of his PTSD. In the alternative, she alleges that the Veteran's heart disease was due to inservice herbicide exposure. The focus of this case must be on the role of service-connected disability in either directly causing or contributing to the cause of the Veteran's death. The appellant argues that the Veteran's heart disease is attributable to inservice herbicide exposure and, while she is correct that ischemic heart disease is an entity for which there exists a rebuttable presumption of service connection based on presumed inservice exposure to toxic herbicide and that the Veteran's ischemic heart disease was shown to be present many years after service, the disease process that claimed the Veteran's life was not ischemic heart disease, but rather hypertensive cardiovascular disease. Presumptive service connection for hypertension as a chronic disease if shown to the requisite degree within the first year after service, is expressly prohibited as a consequence of inservice exposure to toxic herbicide. See 38 C.F.R. § 3.309(a), (f). A similar pattern is indicated with respect to diabetes mellitus, type II. There is a showing as to the postservice onset of the Veteran's diabetes mellitus, type II, and it is one of the disorders for which there exists a presumption of service connection based on herbicide exposure in service. However, the Veteran's diabetes mellitus is not shown to have been a direct or contributory cause of his death and cannot be a basis for a grant of the requested benefit. Thus, this case turns on the role of service-connected disability upon those entities which were either a direct or contributory cause of death. VA medical opinions were obtained in 2008 and 2012, which clarified that the primary cause of death was a spontaneous extensive intracerebral hemorrhage and that a preponderance of the medical literature indicated that hypertension was the predominant cause of spontaneous intracerebral hemorrhage. Further input was to the effect that hypertension, intracerebral hemorrhage, and diabetes mellitus were risk factors for microhemorrhage, but with a notation that the Veteran's intracerebral hemorrhage was not a microhemorrhage. It was also indicated that it was less likely than not that the Veteran's cerebral hemorrhage was caused by, related to, or aggravated beyond natural progression by any Agent Orange presumptive disorder. Also noted was that a preponderance of the medical literature did not support that PTSD was a cause of hypertension, coronary artery disease, atherosclerosis, or cerebral hemorrhage. Various treating medical professionals have provided evidence to the contrary. A private, treating physician that is board-certified in cardiology reported in August 2007 that the Veteran's hypertension was exacerbated by his emotional state at times involving PTSD-related symptoms of daily panic attacks and fits of rage. The Veteran's inability to distinguish his panic attacks and a true cardiac event was noted, and it was the cardiologist's opinion that the Veteran's compromised mental state contributed to the severity of his hypertensive episodes and quite possibly their frequency and his eventual cerebrovascular hemorrhage. A treating VA psychiatrist offered statements in May 2008 and May 2010 in response to the Veteran's widow request for input as to the effects of the Veteran's PTSD on his ruptured aneurysm and, in response, he indicated that several studies in the past had shown a direct link of PTSD adversely affecting the cardiovascular system with the mechanisms including increased sympathetic activity and hormonal influences and the effect of prolonged stress being cardiotoxicity. The result was noted to involve earlier decompensation of the heart and blood vessels than would otherwise occur. A search for studies that PTSD had no effect or any beneficial effect on the cardiovascular system produced no results, leading the cardiologist to conclude that the Veteran's PTSD more likely than not aggravated his heart and blood vessel disorders and directly contributed to his early death. In her May 2008 statement, a VA nurse practitioner, indicated that she had treated the Veteran from 2002 to the time of his death. She reported that the Veteran suffered from severe anxiety due to his chronic, severe PTSD and she cited medical studies directly linking PTSD with adverse effects upon the cardiovascular system. She reported in a previous statement in June 2003 that chronic, severe PTSD was present that left the Veteran in a constant state of hypervigilance with severe flashbacks and nightmares, frequent panic attacks, quick anger, memory impairment, and an inability to attend any social or family function. In all, the evidence indicating that service-connected disability aggravated the Veteran's hypertension which led directly to the Veteran's fatal intracerebral hemorrhage outweighs evidence to the contrary. While VA opinions obtained in 2008 and 2012 contraindicate entitlement, their focus was largely limited to determining whether service-connected disablement was a direct cause of death, and, as indicated above, other treating VA medical professionals have set forth medical opinions, which are found to be persuasive, that service-connected disability was more likely than not a contributory cause of death based on the interplay between the Veteran's service-connected PTSD and his hypertension and diseased coronary arteries and his eventual cerebrovascular hemorrhage. On balance, the evidence reasonably supports entitlement of the appellant to a grant of service connection for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs