Citation Nr: 1322185 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-20 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to June 1946, January 1948 to June 1949, and September 1950 to October 1951. He died in January 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for the cause of the Veteran's death and DIC benefits pursuant to 38 U.S.C.A. § 1318. An RO hearing was held in September 2007. The claim was remanded by the Board in March 2009 for additional development. FINDINGS OF FACT 1. The Veteran died in January 2007. 2. The death certificate indicated that the immediate cause of death was congestive heart failure, due to or as a consequence of hypertension, with renal failure and cerebrovascular accident contributing to death. 3. At the time of the Veteran's death, service connection was in effect for hearing loss, rated 50 percent disabling, PTSD, rated 30 percent disabling, and tinnitus, rated 10 percent disabling. In addition TDIU was in effect from February 15, 2005. 4. Resolving doubt in favor of the appellant, the evidence supports a substantial causal relationship between the Veteran's service-connected PTSD and the congestive heart failure, due to or as a consequence of hypertension that caused his death. CONCLUSIONS OF LAW 1. A service-connected disability contributed substantially and materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310, 3.312 (2012). 2. The appellant's claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is moot. 38 U.S.C.A. §§ 1318, 7104 (West 2002); 38 C.F.R. §§ 3.22, 20.101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board, however, is granting the claim being decided herein, for entitlement to service connection for the cause of the Veteran's death; further discussion of the VCAA is therefore unnecessary. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability due to disease or injury incurred in or aggravated by active service was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal cause of death when such 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). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that the service connected disability casually shared in producing death; rather, a causal connection must be shown. Id. The appellant's primary contention is that the Veteran's service-connected PTSD caused or aggravated the congestive heart failure, due to or as a consequence of hypertension that caused his death. The Veteran was in receipt of compensation for his service-connected hearing loss, rated 50 percent disabling, PTSD, rated 30 percent disabling, and tinnitus, rated 10 percent disabling, at the time of his death, a TDIU was also effective since February 2005. If the PTSD contributed substantially or materially to the Veteran's death from congestive heart failure, due to or as a consequence of hypertension, as contended by the appellant, she is entitled to service connection for cause of death. There are several medical opinions on this question. In an August 2008 letter from M.A. Shakir, M.D., he noted that he had been treating the Veteran for his cardiac condition, hypertension and chest pain. Dr. Shakir noted that the Veteran suffered from PTSD as a result of his service. He also had been suffering from high blood pressure which damaged his heart and kidneys. Hypertension weakened his heart muscle and caused destruction of his heart valve over a period of time requiring the placement of stents and eventually a heart valve replacement. His weakened heart muscle led to congestive heart failure. Dr. Shakir opined, "It is my medical opinion that [the Veteran] would have lived longer if he did not have the problems described." "It is also my medical opinion that these problems arose primarily from high blood pressure that was caused by his service in the army and by the undiagnosed PTSD that he suffered as a result of service." In December 2009 a VHA medical opinion was provided as to whether the Veteran's hypertension was caused by or related to his military service or if his service connected PTSD caused his hypertension. The clinician noted that hypertension was a common condition affecting approximately 65.4 percent of the population over 65 years of age at the last survey in 1999-2000. To date there have only been a few studies that have shown an increase in hypertension due to PTSD and there has been significant issues regarding the methodology used in those studies. In contrast VA normative age studies did not show any increase in blood pressure in patients with the higher scores from PTSD in the sample population. The clinician noted various articles in the C-file submitted by the Veteran's representative but none dealt with the question of whether PTSD causes hypertension. He noted Dr. Shakir's opinion that that the Veteran's hypertension was caused by his service and by the undiagnosed PTSD that he suffered as a result of service. Dr. Shakir did not cite any relevant medical literature or give any rationale to support his conclusion. The clinician opined that, "The Veteran's hypertension was not due to military service and that it is less likely as not that the Veteran's hypertension was caused by his service connected PTSD." In May 2010 additional medical opinions were provided by VHA. The VAMC North Texas Medical Director of Mental Health noted that although the Veteran's service-connected PTSD was 30 percent disabling, review of the claims file and CPRS records do not indicate a diagnosis of PTSD. Instead the evidence indicated mild depressive symptoms along with symptoms of dementia. The clinician also reviewed the articles showing a causal relationship between PTSD and congestive heart failure/hypertension. He noted that it was known that when Veterans have chronic PTSD they are in a constant state of hyperarousal and therefore in a state of sustained sympathetic activation associated with hypertension/congestive heart failure. The clinician noted that he could find no mental health or clinical note suggesting any symptoms of hyperarousal. The Veteran's primary care physician did not even mention PTSD in his list of problems or differential diagnosis. In fact the Veteran's history suggested 28 years of employment without friction and a 45-year marriage to his first wife. It would seem his more recent reports of isolation and lack of interest may be explained by early symptoms of dementia with secondary depression based on anxiety. The clinician opined that, "in my opinion, it is unlikely that [the Veteran's] hypertension was 'caused' by his service-connected condition of PTSD." A VA cardiologist noted he had reviewed the claim file but did not see a copy of the actual death certificate. He noted limited service treatment records but normal blood pressure on the Veteran's separation examination. Hypertension was a common condition affecting a majority of Americans over 60 years of age. The medical literature had not to date shown a significant increase in the lifetime risk of developing hypertension due to PTSD. Furthermore VA psychological treatment notes did not indicate that the Veteran was chronically in a state of hyperarousal which is thought to be the physiologic basis relating hypertension and PTSD. The Veteran died at age 80 which would not represent an accelerated or premature death. The cardiologist opined, "It is my opinion that Veteran's hypertension was not caused by or related to his military service and that it is less likely than not due to his service-connected PTSD." In April 2011 the Board requested an expert medical opinion. In a May 2011 VHA opinion it was noted that it was frequently speculated that anxiety or psychological stress may play a role in the etiology of hypertensive vascular disease. This has not been fully evaluated in any well-controlled randomized trials; however, just because a condition may be associated with another diagnosis does not prove that there is a causal relationship. The available studies add nothing to further the hypothesis that anxiety during war time service can produce hypertension several years later, "and I have found no evidence that suggests anxiety or psychological stress from events occurring during a particular time frame may result in hypertension that does not manifest until many years later." According to the death certificate, the Veteran's hypertension developed 10 years before death in 1997. His military service ended in October 1951, or more than 45 years earlier. In the Veteran's 2003 claim for disability, he claimed hypertension since 1972, or 20 years after service. He did not develop early age heart disease or premature coronary artery disease and died at age 80. The clinician discussed Dr. Shakir's opinion and assumptions noting that he provided no credible evidence from his opinion. It was not consistent with contemporary evidence based medicine and his conclusions were "completely unfounded." The clinician opined, "It is my opinion that in review of the chart and information provided that there is no evidence of a causal relationship between this patient's PTSD and his development of hypertension which may have led to subsequent target organ damage." In a September 2012 addendum to the May 2011 VHA opinion, the clinician wrote that PTSD was associated with an increase risk of hypertension. He noted that the development of hypertension 45 years after service was not felt to be the result of PTSD. It also seemed unlikely that the history of service 45 years prior to the development of his hypertension was an aggravating factor. No well done studies are available which would suggest that a very remote history could aggravate or contribute to hypertensive coronary arterial vascular disease. The clinician opined, "It is my opinion that this Veteran's development of hypertension many decades after his service cannot be causally attributed to his PTSD from military experiences 45 years prior." In a May 2013 letter, Kenneth B. Desser, M.D., noted that there were numerous medical studies which supported an association between PTSD and heart failure mortality. He noted the August 2008 medical opinion offered by the Dr. Shakir and the subsequent contrary VA medical opinions. Dr. Desser conducted an extensive review of the Veteran's medical history and the medical opinions and rationales offered both for and against service connection for cause of death. He noted that it was his conclusion that the Veteran's PTSD symptoms caused and contributed to his development of hypertension and congestive heart failure. This opinion was based on a reasonable degree of medical probability exceeding 50 percent likelihood. The Board concedes that the private health care professionals provided rationales for their opinions, which were supported by the articles they cited and attached. These opinions are therefore entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Although the VA physicians and expert medical opinions also explained the reasons for their opinions, these opinions also addressed the many medical articles that indicate a relationship between PTSD in Veterans and heart disease, which conflicts with part of the rationale for their opinions. The Board notes that VA has itself acknowledged such a relationship. In the Supplementary Informations to the Interim and Final Rule amending VA regulations to include a presumption of service connection for prisoners of war who develop hypertensive vascular disease, VA cited several medical studies indicating that veterans who have a long-term history of PTSD have a high risk of developing cardiovascular disease. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004). After considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit-of-the-doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert, 1 Vet. App. at 50. Service connection for the cause of death of the Veteran will therefore be granted. The appellant raised entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 as an alternative theory of entitlement to service connection for the cause of the Veteran's death. In light of the grant of DIC benefits described above, the Board concludes that this aspect of the appellant's claim is rendered moot. Entitlement under 38 C.F.R. § 1310 is granted in full. No additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1318, nor does any controversy remain. Accordingly, the appeal as to the claim of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed as moot. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. The appeal as to DIC benefits pursuant to 38 U.S.C.A. § 1318 is dismissed as moot. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs