Citation Nr: 1326544 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 09-37 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from August 1942 to October 1945. The Veteran was a prisoner of war from September 1944 to October 1945, and died in August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). The case was previously before the Board in August 2012 and in April 2013, when it was remanded for additional development of the record and/or to ensure due process. The case is again before the Board for appellate consideration. On a VA Form 9 received in October 2009, the appellant checked boxes indicating both that she wanted a hearing and that she did not want a hearing. By letter in January 2012, she was advised that a hearing was scheduled for the following month. In February 2012 she responded that she was unable to attend the hearing, and requested that her file be sent to the Board for a decision. Consequently, the Board finds that her hearing request has been withdrawn. [This appeal is processed using VA"s paperless claims processing system. Any future consideration of the case should take into consideration the existence of the electronic record.] Please note 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, who was a prisoner of war, died in August 1997 of cardiopulmonary arrest due to metastatic carcinoma to the bone and prostate cancer. 2. At the time of the Veteran's death, service connection was in effect for low back syndrome, rated 20 percent; depressive reaction, rated 10 percent; and malaria, rated 0 percent; his combined rating for service connected disabilities was 30 percent. 3. Competent medical evidence shows that the Veteran had cardiovascular (coronary artery) disease that is reasonably shown to have contributed to his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. 38 U.S.C.A. §§ 1101, 1110, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA VA has duties 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 VCAA applies in this case. However, as the benefits sought are being granted, there is no need to belabor the impact of the VCAA on this claim as any VCAA-mandated notice or duty to assist omission is harmless. The Board notes that Development sought in its April 2013 remand was not completed. The appellant was not afforded the time provided by regulation to respond to a request for identifying information and releases. Furthermore, the remand indicated that a medical opinions should be sought if there was evidence that the Veteran had cardiovascular disease. A March 1989 VA examination report had noted a diagnostic study finding that the Veteran had coronary artery atherosclerosis; nonetheless a medical advisory opinion was not sought. However, corrective action to address such deficiencies is not necessary, as this decision grants the benefit sought (and the evidentiary development deficiencies therefore do not have a prejudicial effect). Factual background, legal criteria and analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence received be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The record reflects the Veteran was a prisoner of war from September 1944 to May 1945. His available service treatment records do not show any complaints or abnormal findings pertaining to the cardiovascular system. The diagnoses on VA general medical examination in March 1989 included (as pertinent here) mild artery atherosclerosis by X-ray. The examiner also noted that the Veteran had bilateral diagonal ear lobe creases, which had been associated with coronary artery disease. The Veteran's death certificate shows that he died in August 1997 of cardiopulmonary arrest, due to or as a consequence of metastatic carcinoma to the bone and cancer of the prostate. In a statement dated in January 2006, a private physician indicated that the Veteran was his patient from 1996 to 1997, when he died of prostate cancer. He stated that the Veteran appeared to have unstable heart disease, which could have contributed to his demise. The veteran had established service connection for low back syndrome, rated 20 percent; depressive reaction, rated 10 percent; and malaria, rated 0 percent; the combined rating was 30 percent. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where a veteran served 90 days or more during a period of war, and was a prisoner of war, and cardiovascular disease becomes manifest to a degree of 10 percent or more at any time after discharge from service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). 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. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). The record shows that the Veteran had atherosclerotic heart disease, first noted in the record (based on X-ray study) on March 1989 VA examination. The physician who was treating the Veteran in 1996 and 1997 (when he died) has stated that the Veteran had unstable heart disease. There is no contemporaneous evidence to the contrary (although VA examination reports in the record from 1989 and 1994 do not show the atherosclerosis was substantially disabling, those were earlier and would not reflect any progression of the heart disease after June 1994). The record provides no reason to discount the 2006 medical statement, as a treating physician would have been well-positioned to observe the Veteran's health status. Because the Veteran had been a POW, he was entitled to service connection for arteriosclerotic heart disease manifested to a compensable degree. While terminal treatment records have not been secured (as noted above) and the precise rating warranted for the Veteran's arteriosclerotic heart disease prior to his death cannot be determined (if ascertainable from such records), it may reasonably be conceded that unstable heart disease would have warranted a compensable rating. The analysis proceeds to whether the Veteran's arteriosclerotic heart disease (which has been found to be service-connected) contributed to cause his death. Because the disease involved an active process affecting a vital organ, it requires close consideration as a contributory cause of death. Given the state of evidentiary development, there is sparse information regarding the status of the arteriosclerotic heart disease during the time preceding the Veteran's death. As is noted above, the Veteran's treating physician described the heart disease as unstable; the Board (for reasons explained above) has accepted that statement at face value. The Board finds that it is reasonable to assume that an unstable arteriosclerotic heart disease would have required medical attention and would have likely resulted in impairment of health. Under these circumstances, and resolving remaining reasonable doubt in the appellant's favor, the Board finds that it is shown that a service connected disability (atherosclerotic heart disease) contributed to cause the Veteran's death, and that 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. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs