Citation Nr: 1332026 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 06-07 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1951 to August 1974. He died in February 2005; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California, that denied the above claim. Jurisdiction of this matter was subsequently transferred to the RO located in San Diego, California. The appellant requested a hearing on her March 2006 substantive appeal, and the Board scheduled her for a May 2009 Travel Board hearing. However, she failed to appear for the scheduled hearing. In correspondence dated in August 2013, the appellant's son indicated that she could not appear for the hearing because she had been held against her will by her daughter in the desert. In light of the favorable outcome of this decision, the Board finds that the need to address whether the requested hearing should be rescheduled has become moot. This matter was previously before the Board in March 2010, November 2011, and October 2012 at which time it was remanded for additional development. It is now returned to the Board. The Board notes in its prior remands, the issue of entitlement to death pension benefits was said to have been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and was referred to the AOJ for appropriate action. As it appears that the issue has still not been adjudicated in the first instance by the AOJ, it is, once again, referred for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with this 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. 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 died in early 2005; the immediate cause of death was respiratory arrest; with underlying causes said to be congestive heart failure and coronary artery disease. 2. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss with tinnitus, pulmonary nodules of the right lung, dermatitis and tinea pedis with onychomycosis of both great toes, and otitis media with residuals of bilateral mastoidectomies and tympanoplasties. 3. Resolving reasonable doubt in the appellant's favor, the Veteran's death was a result of coronary artery disease which began during his period of active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.302, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the appellant, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for the cause of the Veteran's death. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2013). Service connection for certain chronic diseases, to include a cardiovascular-renal disease, 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). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). If a Veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). Ischemic heart disease is among the diseases listed as subject to presumptive service connection. 38 C.F.R. § 3.309(e). The survivors of a Veteran who has died from a service-connected disability or compensable disability may be entitled to receive dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002). 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 contributory cause of death. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. § 3.312(a). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as 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 contributory cause of death is inherently one not related to the principal cause. 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; that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c)(1). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The appellant contends that the Veteran's death was caused by coronary artery disease that was first manifested during his more than 20 year period of active service. In pursuing her claim, the appellant has presented a number of theories of entitlement, to include that the Veteran had hypertension and heart issues in the early stages for which he was treated in service. Additionally, it was suggested that he had service in the Republic of Korea during which he was exposed to certain herbicide agents which would entitle the Veteran to presumptive service connection for the eventual manifestation of ischemic heart disease. The Board notes that as the medical evidence of record is at the very least in equipoise as to the issue of direct service connection, other theories of entitlement need not be addressed. In the instant case the Veteran's death certificate lists the immediate cause of death as respiratory arrest; with underlying causes said to be congestive heart failure and coronary artery disease. The Veteran's service treatment records are negative for complaints of or treatment for a diagnosis of either respiratory arrest, congestive heart failure, or coronary artery disease. However, service treatment records do include various blood pressure readings, as well as, electrocardiograms dated in February 1970 and January 1974, which will be referenced below. Following service, private outpatient and hospital treatment records dated from June 1999 to February 2005 show that the Veteran was treated intermittently for a long history of ischemic cardiomyopathy, organic heart disease, coronary artery disease, congestive heart failure, peripheral vascular disease, status post placement of an implantable cardioverter defibrillator, coronary artery bypass grafting in 1999, hypercholesterolemia, and chronic obstructive pulmonary disease. A VA examination report dated in April 2013 shows that the Veteran's entire claims file was reviewed in conjunction with formulating an opinion as to whether the Veteran's fatal conditions were etiologically related to service. The VA examiner indicated that blood pressure readings in service were borderline (e.g. 136/84 on January 25, 1974). The examiner noted that there had been other readings in similar range in service, as had been presented by the appellant's representative. The Veteran's height and weight on January 25, 1974, was said to be 71 inches and 165 pounds, with a Body Mass Index (BMI) calculated to be 23 which would be normal in 2013. The examiner noted that any 41 year old person with a blood pressure of 136/84 would be advised about it and changes recommended. The examiner indicated that there had been no evidence that this occurred, and that the practice had improved since 1974. However, the examiner noted that human biology had not, and therefore it was more likely than not that the blood pressure at that time was in pre-hypertensive range. The VA examiner also indicated that the Veteran had an electrocardiogram performed on July 25, 1974 (the Board notes that the date of this electrocardiogram report is actually January 25, 1974). It was read as showing non-specific T-wave changes. Non-specific was said to mean that the changes were not diagnostic by themselves but could be due to ischemia of the heart. The examiner also found another electrocardiogram dated February 24, 1970, in which the T-waves were normal. The examiner opined that this meant something happened between these two electrocardiograms. The examiner concluded that the Veteran most likely had ischemia of heart; and in fact the 1974 electrocardiogram also seemed to show the q-waves in anterolateral leads which were not clearly present in the 1970 electrocardiogram. The examiner opined that, therefore, the Veteran had pre-hypertension during active duty, and that he had a heart event between 1970 and 1974 which was of ischemic nature. The post-discharge medical events were said to have included high blood pressure, congestive heart failure, pacemaker placement, and finally death due to respiratory arrest due to congestive heart failure and coronary artery disease. The examiner concluded that, in summary, the Veteran had the beginning of high blood pressure and coronary artery disease in the later part of his service. Taking into account the relevant evidence outlined above, and resolving any reasonable doubt in the appellant's favor, the Board finds that service connection is warranted for the cause of the Veteran's death. Although the Veteran's service treatment records do not include diagnoses of respiratory arrest, congestive heart failure, or coronary artery disease, the Board finds probative the April 2013 opinion of the VA medical examiner that concluded his coronary artery disease was first manifested in the later part of his period of active service. This opinions is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant probative weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Moreover, there is no competent medical evidence of record to rebut the opinion in support of the appellant's claim or otherwise diminish its probative weight. Accordingly, after resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran's coronary artery disease which was first manifested during his period of active service contributed to his death. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Therefore, 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. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs