Citation Nr: 1334885 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 13-09 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service in the United States Navy from May 1965 to May 1967. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. By that rating action, the RO determined that new and material evidence had not been received to reopen a previously denied claim for service connection for the cause of the Veteran's death. The appellant appealed this determination to the Board. Jurisdiction of the appeal currently resides with the Columbia, South Carolina RO. In August 2013, the appellant's attorney submitted additional evidence in support of the appellant's claim, along with a waiver of initial RO consideration. Thus, remand to have the RO consider this evidence in the first instance is not necessary. 38 C.F.R. § 20.1304 (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an April 2009 final rating decision, the RO denied service connection for the cause of the Veteran's death based on the finding that there was no evidence of any cardiovascular or respiratory disability during military service 2. Some of the evidence received since the final April 2009 rating action includes evidence that bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, relates to an unestablished fact (i.e., evidence demonstrating that the Veteran's service-connected PTSD contributed to his fatal cardiopulmonary disease) necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for cause of the Veteran's death. 3. According to the official certificate of death, the Veteran's death in October 2008 was caused by cardiopulmonary arrest due to (or as a consequence of) chronic obstructive pulmonary disease (COPD). Other significant conditions that contributed to his death were hypertension and diabetes. 4. At the time of the Veteran's death, service connection was in effect for post traumatic stress disorder (PTSD)(evaluated as 100 percent disabling); and amputation of the distal parts of third and fourth digits of the left hand (evaluated as 10 percent disabling). 5. The more probative and competent medical evidence demonstrates that the Veteran's PTSD contributed substantially and materially to the fatal cardiopulmonary arrest that resulted in his death. CONCLUSIONS OF LAW 1. The April 2009 rating decision, wherein the RO denied service connection for the cause of the Veteran's death, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.200, 20.202, 20.1103 (2013). 2. New and material evidence has been received since the April 2009 rating decision, wherein the RO denied service connection for the cause of the Veteran's death, and that claim is reopened. 38 U.S.C.A. §§ 5103, 5013A, 5107, 5108, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2013). 3. Affording the appellant the benefit of the doubt, the criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). In this case, because the Board is granting in full the benefit sought on appeal, any further discussion with respect to either the duty to notify or the duty to assist is not necessary. II. Laws and Regulations (i) General Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). In-service incurrence and a nexus to service may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating (1) that a condition was noted during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as cardiovascular-renal disease. Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 C.F.R. §§ 3.102, 4.3 (2013). (ii) Presumptive Criteria Certain enumerated disorders, such as cardiovascular-renal disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year following separation from active duty. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Here, as there is no evidence of any cardiovascular disease within a year of the Veteran's discharge from active military service in May 1967, service connection on a presumptive basis is not warranted. Id. (iii) Cause of Death-Criteria Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a). A veteran's death may be service connected if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). The service-connected disability may be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided or lent assistance to producing death. 38 C.F.R. § 3.312(c). (iv) Agent Orange Criteria For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that a veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). Here, as there is no evidence that the Veteran served on the landmass of the RVN, his exposure to Agent Orange will not be presumed. Id. The Veteran's service personnel records show that he served aboard the USS JOHN WILLIS (DE 1027) from March 16, 1966 to March 16, 1967, at which point he transferred to the USS C.P. CECIL (DD 835) until May 16, 1967. The Veteran was authorized to receive the Vietnam Service Medical with Bronze Star for the following periods: November 24, to December 28, 1966; January 9 to January 18, 1967; February 5, to February 17, 1967; and, March 3 to March 14, 1967. Records from the Naval Historical Center for the USS C. P. CECIL show that it was in the Vietnam theater of operations from November 24, 1966 to March 14, 1967. However, these records do not show that the Veteran served on the landmass of the RVN, or that the USS C. P. CECIL (DD 835) served in the brown waters of the Republic of Vietnam (i.e., inland waterways of Vietnam). Thus, the Veteran's exposure to herbicides, such as Agent Orange is not presumed. Id. The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam area. The diseases listed at 38 C.F.R. § 3.309(e ) which include chloracne, shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year, after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(ii) (2013). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected even though there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2013). The diseases listed in 38 C.F.R. § 3.309(e) for which service connection is presumptively granted on the basis of exposure to herbicides were amended to add AL amyloidosis. See 74 Fed. Reg. 21,258 (May 7, 2009); see also 38 C.F.R. § 3.307(a)(6)(ii). In addition, this regulation was recently amended to allow such presumptive service connection to be granted for ischemic heart disease, Parkinson's disease and hairy cell leukemia and other chronic B-cell leukemias. See 75 Fed. Reg. 53,202 (August 31, 2010). On the Veteran's certificate of death, diabetes was listed as a significant condition that contributed to his death. This is a disease that is subject to presumptive service connection on the basis of herbicide exposure in the RVN. However, and as noted above, the Veteran did have active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975; thus, the above-cited presumption is not for application. Notwithstanding the above-cited presumptions, a veteran can still establish service connection with proof of direct causation. 38 U.S.C.A. § 1113(b) (West 2002); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). (v) New and Material Evidence Criteria New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). III. Analysis A. New and Material Analysis The RO denied service connection for the cause of the Veteran's death in an April 2009 rating decision. The appellant was provided notice of this rating action that same month. She did not appeal that decision, nor did she submit any new and material evidence within a year of the August 2009 rating decision. See 38 C.F.R. § 3.156(b). As such, the April 2009 rating decision is the last final denial of the claim. In May 2011, the appellant requested that her claim for service connection for the cause of the Veteran's death be reopened. (See VA Form 21-0820, Report of General Information, received by the RO in May 2011). In the appealed July 2011 rating action, the RO determined that new and material evidence had not been received to reopen the previously denied claim for service connection for the cause of the Veteran's death. The appellant appealed this rating action to the Board. In denying the claim for service connection for the cause of the Veteran's death in its final and unappealed August 2009 rating action, the RO found that there was no evidence of any cardiovascular or respiratory condition that had been incurred in or caused by military service. At the time of the RO's final August 2009 rating action, the evidence of record included the Veteran's service treatment records, which were devoid of any cardiovascular or lung pathology; service personnel records, which, as noted above, did not show that the Veteran had served on the landmass of the RVN or that the USS C. P. CECIL (DD 835) had "brown water" service; VA and private treatment records, dating from 1967 to 2008; and, the Veteran's Certificate of Death. None of these records showed that the Veteran's fatal cardiopulmonary disease had its onset during military service or within a year of service discharge in May 1967 or that it was etiologically related thereto, to include the service-connected PTSD. Evidence added to the record since the final April 2009 rating action included, but was not limited to, a January 2012 opinion authored by H. S., M. D. H. S., M. D. opined that it was as likely as not that the Veteran's PTSD was a substantial and material factor in contributing to the cause of his death. (See January 2012 report, authored by H. S., M. D.). This opinion is new as it was not of record at the time of the RO's final April 2009 rating action. It is also material. It is material because it relates to an unestablished fact and raises a reasonable possibility of substantiating the claim, namely that the Veteran's service-connected PTSD had contributed to his fatal cardiopulmonary disease. Thus, the Board finds that new and material evidence has been received and the claim is reopened. B. Merits Analysis Having reopened the appellant's claim for service connection for the cause of the Veteran's death, the Board will now address the merits of the claim. According to the official certificate of death, the Veteran's death in October 2008 was caused by cardiopulmonary arrest due to (or as a consequence of) COPD. Other significant conditions that contributed to his death were hypertension and diabetes. At the time of the Veteran's death, service connection was in effect for PTSD (evaluated as 100 percent disabling); and amputation of the distal part of the third and fourth digits of the left hand (evaluated as 10 percent disabling). The appellant contends that the Veteran's service-connected PTSD contributed to his cardiopulmonary disease which resulted in his death. There are private and VA opinions that are in support of and against the claim. In support of the claim is a January 2012 opinion, prepared by H. S., M. D. H. S., M. D. reported that he had been asked by the appellant to provide an opinion as to the relationship between the Veteran death and his PTSD. Dr. H. S. noted that the Veteran had been assigned a 100 percent rating for his PTSD for over five (5) years prior to his death. He also indicated that he had reviewed the Veteran's VA and private treatment reports such as an "April 11, 1989" report and May 1995 report, prepared by K. T., Ph. D., reflecting that the Veteran had suffered from serious PTSD symptoms, such as significant paranoia, anger problems and depression with suicidal ideation. Dr. H. S. related that PTSD stimulated the heart rate which, in turn, caused long-term stress and damage to the heart. Dr. H. S. reported that PTSD was known to be a risk factor for atherosclerosis, a buildup of plaque in the arteries that could lead to a heart attack. Dr. H. S. referenced a study, authored by Dr. R. E., a research scientist at the Los Angeles, California VA Center, who found that Veterans with PTSD had more than double the odds of dying than Veterans without PTSD and calcium buildup in their arteries. Dr. H. S. indicated that he was aware of the Veteran's other risk factors, such as his smoking history, family history of myocardial infarction (i.e., the Veteran's father's had died of a myocardial infarction at age 69), being overweight and having diabetes mellitus and hypertension--conditions that were noted to have been well-controlled. Dr. H. S. related that genetics could play a role in [the development of] heart disease. In the Veteran's case, Dr. H. S. stated that it was hard to know if genetics had played a role in his death without knowing more of his family history, but that it was certainly possible. Dr. H. S. concluded that while the Veteran's PTSD was not the sole cause of his fatal heart disease, it was clear that it was one of the factors that had caused his heart disease. Dr. H. S. ultimately opined that it was as likely as not that the Veteran's PTSD was a substantial and material factor that had contributed to the cause of his death. Dr. H. S.'s opinion is buttressed by four (4) medical articles, to include one uploaded to the Department of Veterans Affairs website entitled, "Researchers at Los Angeles VA find link between PTSD and Cardiovascular Disease." In that article, it was reported that two researchers, one of whom was Dr. R. E., the VA physician referenced by Dr. H. S. in his January 2012 opinion and who concluded that there was a link between cardiovascular disease and PTSD. It was noted that the study was the first of its kind to make a direct association between PTSD and atherosclerotic cardiovascular disease. Dr. R. E. stated, " PTSD may increase the risk of other medical disorders." There are three (3) other articles that are supportive of Dr. H. S.'s opinion and are supportive of the appellant's claim: (i)"PTSD May Be Linked to Heart Disease Risk And Premature Death;"(ii) "Post-Traumatic Stress Disorder Linked to Death, Atherosclerosis in Veterans, Research Finds;" and, (iii) " Post-traumatic Stress Disorder and Cardiovascular Disease." These articles collectively show that individuals with PTSD had a higher change of developing heart disease and to die prematurely; PTSD doubled a Veteran's risk of death from any cause and was an independent risk factor for cardiovascular disease; and, PTSD was associated with major forms of cardiovascular disease. Evidence against the claim is a January 2013 VA examiner's opinion. After a review of the claims files, to include H. S.'s M. D.'s January 2012 opinion, the Veteran's death certificate and an extensive internet review of over 1,000 listings relating to cardiac arrest and an extensive internet search for published articles by R. E., M. D., the VA examiner opined, that it was less likely than not that epinephrine surges form PTSD related symptoms caused cardiopulmonary arrest. The VA examiner reasoned that he had reviewed Dr. H. S.'s opinion and had conducted an extensive internet search of over 1000 articles, none of which discussed PTSD as a cause for cardiopulmonary arrest. The VA examiner indicated that he could not find a published article by R. E., M. D. Further, he stated that he had spoken to psychiatric peers, who could not remember any cases or reports of cardiac events triggered by PTSD either in their own experiences or in the psychiatric literature. Thus, based on his own knowledge, his literature searches and communications with psychiatric specialists it was less likely than not that the Veteran's PTSD had caused or significantly contributed to his cardiopulmonary arrest. (See January 2013 VA examiner's opinion). In this case, resolving all reasonable doubt in favor of the appellant, and in view of Dr. H. S.'s January 2012 opinion and the above-cited medical literature, the Board finds that it is at least as likely as not that the Veteran's service-connected PTSD contributed to his fatal cardiopulmonary disease that resulted in his untimely death. See 38 U.S.C.A. § 5107(b). The January 2013 VA examiner opined that it was less likely than not that epinephrine surges from PTSD-related symptoms caused cardiopulmonary arrest; thus, it was less likely than not that the Veteran's PTSD had caused or significantly contributed to his fatal cardiopulmonary arrest. However, his opinion was based, in part, on a finding that he could not find any medical literature or journals that supported the appellant's theory that PTSD was a cause for cardiopulmonary arrest. The VA examiner's opinion is also contradicted by the above-cited medical journals and articles, one of which was co-authored by a VA physician, Dr. R. E., which supports the appellant's theory, as discussed in more detail in the preceding paragraphs. Furthermore, Dr. H. S.'s opinion was based on a review of the Veteran's extensive PTSD history and provides a plausible basis to conclude that the Veteran's PTSD contributed to his fatal cardiopulmonary disease that resulted in the untimely death of the Veteran. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs