Citation Nr: 1331909 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-20 598 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty with the Navy from October 1944 to July 1946, and with the Air Force from April 1956 to August 1975. The Veteran died on February [redacted], 2007. The appellant is the Veteran's surviving spouse. The appellant's claim comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. In pertinent part, the RO denied the appellant's claim for service connection for cause of death. In December 2009, the appellant testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In June 2011, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The Veteran's death certificate shows that he died on February [redacted], 2007. The immediate cause of death was listed as acute myocardial infarction, with an underlying cause being atherosclerotic coronary artery disease. 3. At the time of the Veteran's death, the Veteran was service-connected for multiple disabilities, including: bilateral hearing loss (with a 40 percent disability rating), lumbar spine disability (with a 20 percent disability rating), cervical spine disability (with a 20 percent disability rating), right lower extremity disability (with a 20 percent disability rating), bilateral knee disabilities (with 10 percent disability ratings), hiatal hernia (with a 10 percent disability rating), bilateral varicose veins (with 10 percent disability ratings), tinnitus (with a 10 percent disability rating), bilateral shoulder disabilities (with 10 percent disability ratings), headaches (with a 10 percent disability rating) and noncompensable hemorrhoids, residuals of a right inguinal hernia, postoperative residuals of a great left toe osteochondroma, postoperative residuals of a sebaceous cyst of the right facial area and postoperative residuals of a pilonidal cyst. 4. The Veteran is presumed to have been exposed to herbicides coincident with his service in the Republic of Vietnam. 5. The Veteran's ischemic heart disease (including myocardial infarction and atherosclerotic coronary artery disease) is presumed to be a result of exposure to herbicides. 6. The Veteran's service-connected ischemic heart disease (including myocardial infarction and atherosclerotic coronary artery disease) contributed to his cause of death. CONCLUSION OF LAW Service connection for the Veteran's cause of death is warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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). Here, the Board has granted the benefit being sought on appeal in full. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be discussed. The appellant asserts that service connection is warranted for the cause of the Veteran's death. Dependency and Indemnity Compensation (DIC) may be awarded to a Veteran's spouse for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. In order for such a benefit to be granted, a service-connected disorder must have caused death, or substantially or materially contributed to it. Id. A service-connected disorder is one that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. A service-connected disability will be considered the principal (primary) 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). A service-connected disability will be considered a contributory cause of death when such disability contributed substantially, or combined to cause death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, 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. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C.A. §§ 1110, 1131. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). The Veteran's VA medical records, specifically including ones dated in April 1967, document that the Veteran received medical treatment while serving in the Republic of Vietnam during the Vietnam War. Thus, the Veteran is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). Effective August 31, 2010, VA published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish presumptive service connection for diseases associated with exposure to certain herbicides, including for ischemic heart disease (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). 75 Fed. Reg. 53, 202 (August 31, 2010). VA medical records, such as a February 6, 2007 record, document that the Veteran had severe coronary artery disease with left ventricular dysfunction and status post recent myocardial infarction. Similarly, the March 2011 VA physician opinion indicated that the Veteran died from acute myocardial infarction due to coronary artery disease, hypotension and chronic obstructive pulmonary disorder (COPD). The Veteran's death certificate shows that the Veteran died on February [redacted], 2007, and listed the immediate cause of death as acute myocardial infarction, with an underlying cause of atherosclerotic coronary artery disease. The Board notes that the March 2011 VA physician found that the Veteran's coronary artery disease was due to his multiple risk factors of nicotine addiction, hyperlipidemia, hypotension and generalized arteriosclerosis. However, as previously noted, VA has established presumptive service connection for ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction and coronary artery disease) when a veteran has been exposed to an herbicide agent. 75 Fed. Reg. 53, 202 (August 31, 2010). In the present case, the Veteran is presumed to have been exposed to an herbicide agent while stationed in Vietnam. Also, his cause of death by acute myocardial infarction, with an underlying cause of atherosclerotic coronary artery disease, warrants presumptive service connection due to that presumed herbicide exposure. The Board thus finds that service connection for the cause of the Veteran's death is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for the cause of the Veteran's death is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs