Citation Nr: 1320035 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-28 767 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) 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 T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1970. He died in October 2007. The appellant is the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2008 rating decision in which the RO denied the appellant's claim for service connection for the cause of the Veteran's death. The RO provided notice of this decision by letter dated March 17, 2008. In March 12, 2009, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2009, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2009. A review of the Virtual VA electronic records storage system does not reveal any additional evidence which is not associated with the paper claims file. For reasons expressed below, the claim on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action, on her part, is required. As a final preliminary matter, the Board notes that, during tne pendency of this appeal, the appellant asserted that VA prescribed Chantix to aid in smoking cessation on October 10, 2007-earlier during the same month in which the Veteran died-and that potential side effects of Chantix are various cardiac disorders, to include acute coronary syndrome. As such, the appellant has raised a theory that the cause of the Veteran's death was VA treatment, for which compensation may be payable, pursuant to 38 U.S.C. § 1151. This is a separate claim under VA statutes. As the RO has not adjudicated the section 1151 claim, it id not before the Board and is referred to the RO for appropriate action. REMAND On review of the entire evidentiary record, to include arguments offered by the appellant and her representative, the Board finds that further RO action in this appeal is warranted. During his lifetime, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling effective January 11, 2005; lumbosacral strain, rated as 10 percent disabling effective March 11, 1970 and 20 percent disabling effective February 14, 2006; hearing loss, rated as 10 percent disabling effective March 11, 1970; tinnitus, rated as noncompensable effective March 11, 1970 and 10 percent disabling effective January 11, 2004; and residuals of malaria, rated as 10 percent disabling effective March 11, 1970, and noncompensable effective March 11, 1971. The Veteran died on October [redacted], 2007. His death certificate lists the immediate cause of death as sudden unexpected cardiac death with underlying hypertensive cardiovascular disease. An autopsy report included anatomic diagnoses of cardiomegaly and left ventricular hypertrophy (LVH), "bridging" of the left anterior descending artery, atherosclerotic cardiovascular disease with a 20 percent narrowing of the right coronary artery, bilateral pulmonary edema, and cholethithiasis. The appellant and her representative have raised several theories of service connection entitlement, all of which are deemed as part of the appeal regardless of when the issue has been raised in the record. See Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are deemed part of the same claim). The Board must also consider all reasonably raised service connection theories even if not specifically raised by the claimant. Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim). A review of the record reveals the following service connection theories: 1) that the Veteran's cause of death was due to ischemic heart disease (IHD), which may be presumptively service-connected as due to herbicide exposure in Vietnam under 38 C.F.R. § 3.309(e) (effective August 31, 2010 pursuant to 75 Fed. Reg. 53,202); 2) that the Veteran's hypertension and hypertensive heart disease was caused and/or aggravated by PTSD; 3) that the Veteran's hypertension and hypertensive heart disease was caused and/or aggravated by herbicide exposure; 4) that the Veteran's hypertensive heart disease was first manifest within one year of service allowing for presumptive service connection as a chronic disease under 38 C.F.R. § 3.309(a); and 5) that a VA prescription of Chantix prior to the Veteran's death caused and/or contributed to the cause of his death. As for the first theory, on October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for IHD. A proposed rule was issued on March 25, 2010, see 75 Fed. Reg. 14,391, and a final rule establishing the presumption was issued on August 31, 2010. 75 Fed. Reg. 53,202. Effective August 31, 2010, 38 C.F.R. § 3.309(e) provides that presumptive service connection based on Agent Orange exposure is available for IHD (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). However, the term "ischemic heart disease" does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of IHD. 38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010). A VA medical opinion in November 2010 with addendum in December 2010 provided opinion that the Veteran's 20 percent narrowing of the left anterior descending (LAD) artery had not been symptomatic and, therefore, did not come within the definition of IHD. It was also opined that the Veteran's 20 percent narrowing of the LAD did not substantially contribute to, or hasten, the Veteran's death. The physician further opined that the majority of sudden cardiac deaths were due to known or unknown coronary artery disease, and that there was no gross evidence that the Veteran had suffered a myocardial infarction (MI). The physician noted that the Veteran had several known risk factors for sudden cardiac death which included structural heart disease consisting of cardiomegaly and LVH which did not appear to be secondary to IHD, tobacco smoking, left bundle branch block demonstrated on electrocardiogram (ECG), and a finding of "bridging" of the LAD. As for the second theory presented, (that the Veteran's hypertension and hypertensive heart disease was caused and/or aggravated by PTSD), the appellant and her representative have submitted several articles positing a link between PTSD and an increased risk in cardiovascular disease, including a PTSD FactSheet published on VA's website. There is commentary that PTSD patients have a greater likelihood of cardiovascular morbidity and nonspecific ECG abnormalities such as atrioventricular conduction defects and infarctions. In the May 2013 Appellant's Brief, the appellant's representative cited to Cecil's Textbook of Medicine for the proposition that cardiovascular reactivity has been correlated with cardiovascular outcomes. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim under 38 U.S.C.A. § 5103A(a). DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Under this standard, VA is only excused from providing assistance, such as an examination, "'when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood v. Peake, 520 F.3d 1345, 1347-48 (Fed.Cir.2008) (quoting 38 U.S.C. § 5103A(a)(2)). Here, the RO has not requested opinion on this theory of causation, and has included in the record a Fast Letter issued by the Veterans Benefit Administration (VBA) in 1996 discussing consultations with the Veterans Health Administration (VHA) to the effect that there is no hard scientific evidence to support a causal relationship between the physiological responses of PTSD to the subsequent development of cardiovascular disease. Notably, this information predates some of the articles submitted by the appellant in support of this claim. As such, the Board finds that medical literature information submitted by the appellant and her representative suggests a possibility that the physiological effects of the Veteran's PTSD may have caused and/or contributed to his death. The Board requires medical opinion discussing this potential relationship. 38 U.S.C.A. § 5103A(a). With respect to the third theory (that the Veteran's hypertension and hypertensive heart disease was caused and/or aggravated by herbicide exposure), the appellant has not provided any specific medical literature on this subject. The Secretary has determined that, to date, the credible evidence is against an association between herbicide exposure and circulatory disorders, including hypertension. See 72 Fed. Reg. 32,395 (June 12, 2007). With respect to the fourth theory (that the Veteran's hypertensive heart disease was first manifest within one year of service allowing for presumptive service connection as a chronic disease under 38 C.F.R. § 3.309(a)), the Board observes that a VA inpatient record in May 1970 noted that an EKG was interpreted as showing borderline LVH by voltage criteria, which was thought to be a normal variant for the Veteran's age and build. Notably, LVH can also be deemed a feature of hypertensive heart disease. See 38 C.F.R. § 4.104, Diagnostic Code 7007 (2012). The Board requires medical opinion discussing whether hypertensive heart disease was manifest within the first post-service year. See 38 C.F.R. § 3.309(a). On remand, the RO should also ensure that all available VA clinic records are associated with the claims file. The claims file includes a gap of VA treatment records from June 1970 to September 2004. It appears that the Veteran may have received VA outpatient treatment during this interval time period. See VA Form 10-7131 dated November 1985. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding, pertinent evaluation and/or treatment records from the St. Cloud Outpatient Treatment Center (OPT) and Minneapolis VA Medical Center (VAMC) between June 1970 to September 2004, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The Board further finds that additional notification action in this appeal is warranted to comply with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in a claim for service connection for the cause of the Veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected. In this case, the appellant was sent notification letters in January 2008 and March 2010. Neither of these letters advised the appellant of the conditions which the Veteran was service-connected at the time of his death. Thus, the RO must issue a corrective notice to satisfy the provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Hence, to ensure that all due process requirements are met, the RO should, through VCAA-compliant notice, give the appellant another opportunity to provide evidence or information in support of her claim for service connection for the cause of the Veteran's death . The RO's letter should explain what information and evidence is needed to substantiate this, to include as outlined in Hop, as discussed above, as well as explain the respective responsibilities of VA and the appellant in obtaining additional evidence. The RO should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the St. Cloud OPT and Minneapolis VAMC between June 1970 to September 2004. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities and VHA Records Control Schedule 10-1 as it pertains to storage of hardcopy treatment records. All records and/or responses received should be associated with the claims file. 2. Send to the appellant and her representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Explain the type of evidence that will be obtained by VA and the type of evidence that is the appellant's ultimate responsibility to submit. Also explain how to establish entitlement to service connection for the cause of the Veteran's death, ensuring that its letter meets the notice requirements of Hupp (cited above) Specifically request that the appellant identify any private providers of treatment, particularly, any physicians who treated the Veteran for hypertension other than VA. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds,assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken 4. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the appellant's response has expired, the RO forward the entire claims file, to include a complete copy of this remand, as well copies of any pertinent Virtual VA records, to an appropriate VA physician. The physician should provide opinions, consistent with sound medical judgment, addressing the following questions: a) whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran manifested hypertensive heart disease in service or within one year from service discharge in March 1970? In answering this question, the physician should discuss the significance, if any, of the finding of borderline LVH by EKG in May 1970; b) whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's hypertension and/or hypertensive heart disease was caused, or aggravated beyond the normal progression of the disorder, by physiological responses of PTSD? In answering this question, the physician should discuss the significance, if any, of medical articles associated with the claims file discussing a greater likelihood of cardiovascular morbidity and nonspecific ECG abnormalities in PTSD patients as well as any current literature on the subject not associated with the claims file. The physician should set forth complete rationale for the conclusions reached in a printed (typewritten) report. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for the cause of the Veteran's death on appeal in light of all pertinent evidence (to particularly include all that has been added to the record since the RO's last adjudication of the claim), and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the appellant and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2012).