Citation Nr: 1317459 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-30 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to August 1992. He died in August 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board observes that the appellant had requested a Board hearing in this matter; however, in July 2009, she cancelled her scheduled August 2009 Board hearing. Therefore, the Board considers the appellant's request for a Board hearing to be withdrawn. In February 2010, the Board denied the appellant's accrued benefits claims, but remanded her claim for service connection for the Veteran's cause of death for additional development in both February 2010 and January 2011. Thereafter, in March 2013, the Board sought a medical opinion from the Veterans Health Administration (VHA), which was obtained in May 2013. FINDINGS OF FACT 1. The death certificate indicates the Veteran died in August 2005 at age 46; the immediate cause of death was shock, with ischemic bowel, due to sepsis, with coronary artery disease and myocardial infarction listed as underlying causes. 2. At the time of his death, the Veteran was service-connected for three disabilities with noncompensable disability ratings, including surgical correction of a left and a right hammer toe, fifth toe of each foot, and for scars and residual recurrent boils both axillae. 3. Resolving reasonable doubt in the appellant's favor, the most probative evidence of record indicates that the Veteran's rapidly progressive vascular/cardiac disease is at least as likely as not related to service and such caused or contributed to his death. CONCLUSION OF LAW The criteria for entitlement for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 1331, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the United States Court of Appeals for Veterans Claims (the Court). (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determination reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis for resolution of the claim for service connection for the Veteran's cause of death without detriment to the due process rights of the appellant. Cause of Death - Laws and Regulations Service connection may be established for the cause of a veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110, 1112. A service-connected disability is the principal cause of death when that 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 contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). See generally Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Accordingly, 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. At the time of his death, the Veteran was service-connected for three disabilities with noncompensable disability ratings, including surgical correction of a left and a right hammer toe, fifth toe of each foot, and for scars and residual recurrent boils both axillae. Nevertheless, for a disorder not yet service-connected, the appellant may establish service connection for the cause of the veteran's death, when all of the evidence, including that pertinent to service, establishes that the claimed disability was incurred in service. Combee v. Brown, 34 F. 3d. 1039 (Fed. Cir. 1994). When any veteran dies after December 31, 1956, from a service-connected or compensable disability, VA will pay dependency and indemnity compensation (DIC) to such veteran's surviving spouse, children, and parents. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012). In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder had been incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. 38 C.F.R. § 3.312. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, diabetes and heart disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Factual Background and Analysis As indicated above, the appellant in this case is the Veteran's widow. The appellant seeks service connection for the cause of the Veteran's death. She essentially contends that service treatment records reveal evidence of a heart condition. She contends that her husband suffered from cardiac and vascular conditions prior to his death for which he should be service-connected and that his service in the Southwest Asia theater of operations caused his coronary artery disease and vascular disease which caused or contributed to his death. Service treatment records detailed that the Veteran was treated for chest pain, shortness of breath, and dizziness at various times during active duty. For example, he complained of chest pain and waking up short of breath in February 1985. A March 1992 treatment note included complaints of dizziness during sports and physical training. The April 1992 VA separation examination report revealed normal findings in all systems and an April 1992 chest X-ray report showed no evidence of active chest disease. However, in an April 1992 report of medical history, the Veteran complained of frequent and severe headaches, shortness of breath, and dizziness or fainting spells. In addition, during 1991, he served in the Southwest Asia theater of operations and, consequently, is a Persian Gulf War Veteran. The evidence of record indicated that he was possibly exposed to low levels of nerve gas while stationed in Iraq during active duty. A post-service September 1992 VA electrocardiogram showed normal findings with sinus brachycardia and an October 1992 VA neurologic examination revealed normal findings. In February 1995, the Veteran underwent a Persian Gulf War examination with assessments of impaired circulation of the left lower extremity with non palpable left dorsal pedal pulse, cyst of the left axilla, and headaches involving right eye pain. VA vascular surgery specialty clinic notes dated in 1995 listed complaints of left leg burning, numbness, and tingling and an impression of left lower extremity claudication as well as impaired circulation. In July 1997, the Office of the Secretary of Defense informed the Veteran by letter that the unit in which he served in Iraq in early March 1991 might have been exposed to a very low level of nerve agents, including sarin and cyclosarin, when rockets were destroyed. In his December 1997 claim for benefits, the Veteran indicated that he had a rash on his back, numbness in his lower legs, and chest discomfort. A September 1998 intake form showed that the Veteran was diagnosed with chest pain rule out a myocardial infarction. In a December 1998 VA chronic fatigue syndrome examination report, the Veteran complained of numbness in his legs since 1992 and indicated that it now involved his left forearm. He indicated that he had a heart attack and double bypass procedure in 1998. The examiner diagnosed coronary artery disease. In his December 1998 notice of disagreement, the Veteran detailed that he was treated for severe chest pain, given an ECG in March 1998, and assured he did not have a heart problem at a VA clinic. Thereafter, in September 1998 he was put in intensive care at a private facility after a heart attack and had a double bypass. He indicated that he felt his heart condition was related to chemicals he was exposed to during service. In April 1999 and October 2000 hearing testimony, the Veteran reported that his leg blockage began in 1993, following his August 1992 service discharge. The Veteran related his claimed conditions to events during active service, including receiving experimental drugs. In an April 1999 opinion, a VA physician indicated that, based on review of the hearing transcript as well as VA treatment records, he found nothing to suggest that coronary artery disease was related to the Veteran's service. He noted that an April 1997 VA treatment record showed complaints of chest pain, slightly elevated blood pressure, and normal electrocardiogram findings. In April 1999 and October 2000 hearing transcripts, the Veteran reported that his leg blockage began in 1993 after service. He related his claimed conditions to events during active service, including receiving experimental drugs. VA treatment records dated in 1999 revealed assessments of intermittent claudication and coronary artery bypass graft status post myocardial infarction. An October 1999 VA radiology report revealed mild occlusive disease of the left lower extremity. An October 1999 vascular consultation showed an impression of left SFA occlusion with stable claudication times 4 years. In a November 2001 treatment note, the examiner assessed coronary artery disease. An August 2003 discharge record from Ormond Memorial - Florida Hospital listed a diagnosis of heart disease/heart attack. Additional VA treatment records dated in November 2004 showed that the Veteran called complaining of heart palpations. The Veteran died in August 2005. His death certificate listed the immediate cause (final disease or condition resulting in death) of his death as shock and an ischemic bowel. Underlying causes (disease or injury that initiated the events resulting in death) were sequentially listed as sepsis and coronary artery disease with myocardial infarction. The appellant has consistently asserted that the Veteran's cause of death is related to events during his active service, to include possible low level nerve gas exposure. At the time of his death in August 2005, the Veteran had pending claims of entitlement to service connection for dermatitis, peripheral vascular disease of the bilateral lower extremities and left forearm numbness, and coronary artery disease. Less than a year later, in December 2005, the appellant filed timely claims for service connection for these disorders, for accrued benefits purposes. The Veteran had contended that his dermatitis, peripheral vascular disease of the bilateral lower extremities and left forearm numbness, and coronary artery disease were related to his active military service, to include events during his service in the Persian Gulf. The Board denied these accrued benefits claims in a February 2010 decision. The Board requested in its February 2010 remand that a VA physician, preferably a cardiologist, should review the Veteran's claims file and prepare an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that the Veteran's cause of death, shock and an ischemic bowel, due to sepsis, arising from coronary artery disease with myocardial infarction, was incurred in or aggravated by active service, to include possible low level nerve gas exposure during service in Southwest Asia. In her June 2010 VA medical opinion, Dr. K.F. opined that the Veteran's death was less likely as not due to possible low level nerve gas exposure during service in Southwest Asia. The VA examiner, however, failed to address whether the cause of death was otherwise incurred in or aggravated by military service. She also did not discuss any of the in-service reports by the Veteran of symptoms of chest pain and shortness of breath. The VA examiner also failed to specify whether or not she was a cardiologist. The Board then requested a clarification addendum from Dr. K.F. In response to the Board's remand, in February 2001, Dr. K.F. reviewed the claims file and opined that it was less likely as not that the Veteran's death was incurred in or aggravated by active service. She noted that there was no shock, ischemic bowel, or sepsis in service and that while the Veteran had chest pain and shortness of breath in service, medical providers did not feel that these symptoms were due to a cardiac cause. Dr. K.F. specifically found no objective evidence of heart disease in service, including coronary artery disease or a myocardial infarction. As there was no objective evidence of heart disease within two years of discharge from active duty, Dr. K.F. concluded that she was unable to find any objective evidence of aggravation of the Veteran's death by service. As Dr. K.F. was not a cardiologist, VA also sent the claims file to a VA cardiologist, Dr. M.McK., who also reviewed the file. However, Dr. M.McK. declined to provide any opinion. He wrote that he could not conclude that the Veteran's death was related to or caused by or aggravated by the Veteran's military service without resorting to mere speculation. In May 2013, the VHA medical expert, Dr. P.S.S., a VA cardiologist, after a review of the claims file, found that the Veteran's rapidly progressive vascular/cardiac disease was at least as likely as not related to the Veteran's period of active service. Dr. P.S.S. noted that there was no objective evidence establishing the presence of coronary artery disease or vascular disease during active duty. He also agreed with the VA examiner who found against exposure to low level nerve gas as the cause for the onset or aggravation of coronary artery disease, ischemic bowel disease, and sepsis and shock. The VHA medical expert also noted that the Veteran maintained physical fitness during service, remained physically active, and was able to run five miles a day at the time of discharge in 1992. He also did not develop or suffer major risk factors for coronary artery disease before his first hospital admission in 1998 with a myocardial infarction. The family's history of heart disease seemed weak to Dr. P.S.S. because, while the Veteran's father had "hardening of the arteries" and died at 47 none of the father's siblings did. Post-service the Veteran also maintained his weight. With good physical fitness and good exertion tolerance and in the absence of any major risk factor except smoking and in the absence of any known vascular or cardiac disease at time of discharge at age 32 in 1992, the Veteran within three short years developed a rapidly progressing vascular disease with left lower extremity claudication. The vascular problem continued to worsen and advanced rapidly and involved cardiac vasculature seriously enough to result in a myocardial infarction that required coronary artery bypass grafting surgery in late 1998 when the Veteran was only 39 years old. Dr. P.S.S. noted this was still in the absence of any major risk factors and just within six years from discharge. The VHA medical expert stated that this development could not be explained on just the one risk factor of smoking and also could not be explained even if family history was considered a risk factor. The reviewer stated that the possibility of exposure to some still unknown risk factor could not be ruled out. The VHA medical expert reviewed a public health study of Gulf War veterans exposed to chemical warfare agents included in the claims file, but noted the study did not include death rate/survival rate figures from vascular disease and coronary artery disease among those with low level exposure. Therefore, Dr. P.S.S. concluded, it was at least as likely as not that the Veteran had a service-connected unknown risk factor exposure to his diffuse rapidly progressive vascular/cardiac disease that otherwise remains unexplained by the known major risk factors for coronary artery disease and vascular disease, or that such disorder began during or resulted from his service, although the etiology was unknown. The Board finds that the May 2013 VHA expert medical opinion of Dr. P.S.S. supports the claim, provides a persuasive rationale, and is based upon an informed review of the record. It is uncontroverted by the additional medical evidence of record. Therefore, for these reasons, the Board will resolve any reasonable doubt in favor of the appellant and find that an etiological relationship between rapidly progressive vascular/cardiac disease and the Veteran's period of active duty has been demonstrated. 38 C.F.R. § 3.102. It is at least as likely as not that the Veteran's coronary artery disease and vascular disease, caused, or at the very least, contributed to the cause of the Veteran's death. Therefore, service connection for cause of death is warranted. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312. ORDER Service connection for the Veteran's cause of death is granted. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs