Citation Nr: 1331880 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-22 455A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from January 1960 to July 1960 and from October 1961 to August 1962. He died in February 1986. The appellant in this matter is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The Veteran died on February [redacted], 1986. The death certificate lists coronary sclerosis due to mural hemorrhage in atheromatous plaque as the cause of death. 2. At the time of the Veteran's death, service connection was not in effect for any disabilities. 3. In February 2006 the Board denied service connection for the cause of the Veteran's death. 5. Evidence added to the record since the February 2006 Board decision relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the claim. 6. The medical evidence clearly and unmistakably shows that the Veteran's hypertension pre-existed service. 7. The medical evidence does not clearly and unmistakably show that the Veteran's hypertension was not aggravated by such service. 8. The Veteran's hypertension and coronary artery vascular disease, which are disabilities of service origin, were the principal cause of his death. CONCLUSIONS OF LAW 1. Evidence added to the record since the February 2006 Board decision, denying service connection for the cause of the Veteran's death, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1112, 1113, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board reopens and grants the service connection claim for the cause of the Veteran's death, which represents a complete grant of the benefits sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. In this case, the appellant seeks to establish service connection for the cause of the Veteran's death. She contends that the Veteran's hypertension, which he had but was not treated for during service, caused or contributed to his death. Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002). Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312 (2013). 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. 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 is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for certain chronic diseases, including hypertension, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Here, VA cannot presume that, at service entry, the Veteran was not sound with respect to his hypertension because it was diagnosed at entry. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now provides that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. See 70 Fed. Reg. 23,027, 23,029 (2005). The United States Court of Appeals for Veterans Claims (Court) has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board denied the appellant's initial claim for service connection for the cause of the Veteran's death in February 2006. At this time, the record contained service treatment records (STRs) and two opinions from VA physicians. The Board concluded that the Veteran's hypertension did not worsen beyond its natural progression during service. The decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.201, 20.302 (2013). The February 2006 Board decision is the last final decision of record. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104 (West 2002). In order to reopen the claim, the appellant must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The service treatment records show that at the Veteran's December 1959 enlistment examination his blood pressure was 150/90. Additional blood pressure readings conducted on July 19, 1960, were 150/110, 164/94, 160/94, 174/98, 172/108, 132/94 and 130/96. At the July 1960 separation examination the Veteran's blood pressure was 150/100, 160/94, and 170/100. He was diagnosed with labile hypertension that was possibly related to obesity. At the October 1961 examination for the return to active duty, the Veteran's blood pressure was 138/88 and at the July 1962 separation examination it was 138/84. The death certificate lists the Veteran's cause of death as coronary sclerosis, due to mural hemorrhage in atheromatous plaque. An autopsy report indicates a diagnosis of generalized aortic atherosclerosis; two vessel coronary atherosclerotic heart disease; healed infarct, left ventricular myocardium; complete occlusion, left anterior descending coronary artery, secondary to mural hemorrhage in atheromatous plaque; and acute myocardial infarct. In March 2002 a VA physician reviewed the record and wrote that that the Veteran's high blood pressure not being treated during service was a risk factor for developing atherosclerosis of the coronary arteries. Therefore, it should be considered a condition that was present while in service and that had the potential for precipitating the cause of death. Another VA physician reviewed the record in November 2002 and felt it was as likely as not that the Veteran's hypertension was incurred in service. The physician also wrote that it was actually present in a mild form at entrance to service and that it was less likely to have been permanently aggravated beyond the usual degree of progression during military service. The Veteran died of coronary artery disease, which is the most common manifestation of untreated hypertension. The link between the two was "substantial and undeniable." Since the February 2006 Board decision, the appellant submitted an article on the complications of untreated hypertension, which was noted to include cardiovascular disease. The Board finds the newly submitted evidence to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the claim is reopened. See Shade, 24 Vet. App. at 117. The medical evidence clearly and unmistakably shows that the Veteran's hypertension existed prior to his first period of service. While the Veteran was not noted to have hypertension at entry to service, the November 2002 medical opinion shows that it existed prior to service. The medical evidence, and in particular in the in-service blood pressure readings, however, do not clearly and unmistakably reflect that the condition was not aggravated by such service. The November 2002 medical opinion also indicates a definitive link between the hypertension that the Veteran had during service and the cause of his death. Therefore, the criteria for service connection for the cause of the Veteran's death have been met. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs