Citation Nr: 1337315 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-16 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Entitlement to dependency and indemnity compensation based upon service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1985. He died in December 2006. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 RO decision. In June 2010, the appellant and M.R.G. testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the claims file and has been reviewed. In October 2010, the Board remanded the matter for further evidentiary and procedural development. Such development having been fully completed, it has been returned to the Board for further appellate review. FINDING OF FACT The Veteran's heart disease at least as likely as not had its inception during service. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in the Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Veteran's death certificate shows that he died in December 2006. He died at home and no autopsy was performed. The immediate cause of his death was determined to have been heart failure due to or as a consequence of cardiomyopathy which had been present for approximately three years. The medical examiner also deemed that neither tobacco nor alcohol contributed to his death. The appellant contends that the Veteran had a heart murmur and high blood pressure during service, as early as 1977. He also had problems with shortness of breath during service, which were attributed to his heavy smoking habit. During the hearing on appeal, she testified that his military responsibilities involved a lot of stress, and that he also had stress in his post-service job. She asserts that these factors contributed to his heart failure and death. Review of his service treatment records reflect that he complained of shortness of breath during a 1977 medical evaluation. Upon testing, his blood pressure was noted to be high as well. He underwent daily monitoring of his blood pressure over the next week. These test results show gradually decreasing blood pressure over the week. He was not put on medication, and apparently his care providers deemed the high results to have been anomalous. He was strongly advised to stop or decrease his smoking habit. During a 1981 periodic examination, he had reduced pulmonary function test results; however his heart, lungs, and chest were deemed to have been normal and he was deemed qualified for worldwide service. Other than some individual heightened blood pressure readings in 1978 and 1985, he was judged fit for service during every service physical and upon discharge from service, his cardiac status was described as normal. The Veteran served on active duty from July 1965 to July 1985. After his discharge from service, the Veteran next visited a doctor in 1995, when he was admitted to the VA hospital with symptoms of alcoholism and impaired cardiac status. Following evaluation, the diagnoses assigned were of congestive heart failure, aortic stenosis, aortic insufficiency, and dilated cardiomyopathy. An aortic valve replacement was performed during that hospitalization. The extensive records reflecting this hospitalization reflect his physicians' assessment that he was at "high risk for severe coronary event," at that time. He was given prescriptions for multiple maintenance medications upon discharge, to include blood thinners which were deemed essential for his continued health, following the valve replacement. It was explained to him, however, that he could not drink alcohol of any sort while he was taking these medications. The evidence indicates, however, that the Veteran resumed drinking heavily and did not take the prescribed, essential medication. Other reports reflect that the Veteran avoided his follow-up cardiology appointments. In 2003, he was again admitted to the VA hospital with cardiac distress. He spent nearly an entire month in the hospital, during which time he underwent a second replacement of the aortic valve prior to being stabilized. A physician's note indicates that his dilated cardiomyopathy was felt to be secondary to alcohol versus being of viral etiology. The Veteran was last hospitalized in March 2004 when he was again admitted to the VA Hospital with exacerbation of congestive heart failure due to noncompliance. Treatment provided during the hospitalization aimed at stabilizing his condition was undertaken, and he was discharged after stabilization was achieved. VA medical records after this date reflect routine blood work, and a magnetic resonance imaging scan of his brain in 2005, following suspicion of a cerebrovascular accident, but no further cardiac treatment. A VA medical opinion as to the cause of the Veteran's death was obtained in March 2012. The opinion is quite brief. The author notes that the Veteran did not have chronic heart failure or cardiomyopathy during service, and relies upon the 2003 physician's note to conclude that the Veteran's death from heart failure was not caused by or aggravated by any events during military service, but was likely related to alcohol abuse. Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; Dyment v. Principi, 287 F.3d 1377 (Fed.Cir.2002). In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal cause of death or a contributory cause of death. The service-connected disability will be considered the principal, or 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. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. In making such determination, it must be remembered that there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. To prevail on the issue of direct service connection, there must be (1) medical, or in certain circumstances, lay evidence of a current disability; (2) medical evidence 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 present disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); and see 38 C.F.R. § 3.303(a). A Veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from injury or disease attributable to the use of tobacco products by the Veteran during the Veteran's service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. However, service connection is not prohibited if secondary service connection is established for ischemic heart disease or other cardiovascular disease under the provisions of 38 C.F.R. § 3.310(b), which allows for service connection for that portion of a nonservice-connected disease which is shown to have been aggravated by a service-connected disease. 38 C.F.R. § 3.300(b)(3). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not as the result of the Veteran's own abuse of alcohol or drugs. The simple drinking of alcoholic beverage is not of itself willful misconduct. Organic disease and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. However, an injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For this purpose, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any time, sufficient to cause disability to or death of the user. 38 U.S.C.A. §§ 105, 501; 38 C.F.R. § 3.301. Upon review of the evidence, the Board finds the evidence supporting the appellant's claim for dependency and indemnity compensation falls into equipoise when weighed against the evidence against her claim. For example, although the medical examiner who completed the Veteran's death certificate deemed that alcohol had no role in the Veteran's cause of death, his VA physicians and the author of the March 2012 medical opinion deemed that his cardiomyopathy was due to alcohol. Similarly, although the medical examiner deemed the Veteran's cardiomyopathy had existed for merely three years before his death, VA medical records in 1995 documented the presence of cardiomyopathy at that time. It is important to highlight that the Veteran served on active duty for twenty years, including much of his early adult lifespan. Thus, his multiple bad habits and physical status were essentially established during active service. Further, the medical conditions leading to his death are clearly indicated within service. The fact that the Veteran had episodes of high blood pressure and shortness of breath during service is instructive, but not dispositive of this case. However, together with the appellant's testimony as to the Veteran's stress levels during service, his service treatment records could reasonably be interpreted as showing indicators of his subsequent heart disease. Approximately ten years after his discharge from service, he sought what appears to have been his initial medical care since discharge from service for serious complaints, including cardiomyopathy, that resulted in open heart surgery to have his aortic valve replaced in 1995. Thus, although there is no documentary evidence as to when his cardiomyopathy initially developed, reason indicates that as his heart disease was significantly well-advanced within ten years of his discharge from service, he had to have been living with milder forms of heart disease for many years prior to the 1995 hospitalization and surgery. Thus, the timeline of ten years between the first solid diagnosis of heart disease and service is somewhat misleading, as the Veteran did not seek medical care at all until his heart disease was so far advanced as to require open heart surgery. Unfortunately, more accurate estimation as to when his heart disease/highly blood pressure had its inception and when the cardiomyopathy developed is not possible due to the Veteran's clearly-documented reluctance to seek medical care. We must also address the questions of whether dependency and indemnity compensation is prohibited in this case by the Veteran's use of tobacco products during his period of service under the provisions of 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300, or whether his death was due to the Veteran's own abuse of alcohol, thus prohibiting an award of dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 105, 501; 38 C.F.R. § 3.301. Upon careful review, we determine that neither of these prohibitions applies to this case. The smoking prohibition does not apply because it is unclear whether the Veteran's smoking history contributed to his death. The death certificate would indicate that smoking did not contribute, and there is no other medical evidence showing that smoking was a direct factor in the Veteran's death. With regard to the Veteran's history of abusing alcohol, the statute is clear that organic disease and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. Thus, the legal path is clear for the appellant to prevail upon her claim, as long as the evidence otherwise supports her claim. The Board finds that the evidence falls into equipoise. The appellant providing highly credible testimony that the Veteran simply did not want to seek medical attention. Therefore, with an 'approximate balance of positive and negative evidence,' the appellant must prevail in her claim for dependency and indemnity compensation. Gilbert. The Board holds that the Veteran's heart disease, which eventually caused his death, had its inception during service. In reaching this conclusion, we again emphasize the Veteran's lengthy, twenty years of active service. The Veteran's reluctance to seek medical care, which was demonstrated in the record over and over again, renders the evidentiary record incomplete, in particular during the ten years following his discharge. The record appears to indicate that the Veteran, if he has sought treatment when he left service, would have been found to have some type of cardiovascular disability, but this is unclear (but it appears, based on the evidence at least as likely as not). The appellant's credible testimony as to the Veteran's stress levels during service in conjunction with the early indications of potential/future heart disease which are recorded in his service treatment records all combine to place the relevant evidence into equipoise. The Board thus concludes that service connection for the cause of the Veteran's death is warranted. Dependency and indemnity benefits are therefore granted. In light of the result reached above, a lengthy exposition of how the VA met its legal duties to notify and assist is not necessary. ORDER Dependency and indemnity compensation based upon service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs