Citation Nr: 1618178 Decision Date: 05/05/16 Archive Date: 05/13/16 DOCKET NO. 11-30 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1942 to September 1971, which included service in World War II, Korea, and Vietnam. His many service awards and decorations include the Combat Infantryman Badge, the Vietnam Campaign Medal (VCM), and the Vietnam Service Medal (VSM). He unfortunately died September 2009. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). The RO in Atlanta, Georgia currently has jurisdiction of this case. In August 2013, the Board remanded the claim for further development. In March 2016, the appellant testified before the undersigned Veterans Law Judge via videoconference. A copy of the hearing transcript is of record and has been reviewed. The case has since returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The death certificate lists the Veteran's immediate cause of death in September 2009 as cardiopulmonary arrest, due to or the consequence of respiratory failure, due to or the consequence of pneumonia. 3. At the time of his death, bilateral hearing loss and duodenal ulcer were his only adjudicated service-connected disabilities. 4. The Veteran served in the Republic of Vietnam during the Vietnam Era and was presumed to have been exposed to herbicides during such service. 5. The Veteran's ischemic heart disease diagnosed during his lifetime is presumed to have been due to such herbicide exposure in service. 6. Resolving all doubt in the appellant's favor, the Veteran's ischemic heart disease contributed materially or substantially to his fatal cardiopulmonary arrest. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected disability affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3)(2015). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability 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 disability accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. See 38 C.F.R. § 3.312(c)(4)(2015). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have a disease listed in 38 C.F.R. § 3.309(e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(6)(iii). Relevant here, ischemic heart disease, to include coronary artery disease, was added to the list of diseases subject to presumption of service connection due to herbicide/Agent Orange exposure, effective August 31, 2010. 75 Fed. Reg. 53,202 (Aug. 31, 2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). In this case, the Certificate of Death shows that the Veteran died in September 2009; the immediate cause of death was cardiopulmonary arrest, due to or the consequence of respiratory failure, due to or the consequence of pneumonia. At the time of his death, bilateral hearing loss and duodenal ulcer were his only adjudicated service-connected disabilities. The appellant asserts that service connection for the cause of the Veteran's death is warranted based on the Veteran's exposure to Agent Orange in service. She essentially asserts that the Veteran's ischemic heart disease contributed to his cause of death. The Veteran's service in Vietnam is undisputed. His service personnel records show his participation in the Vietnam Counter Offensive Phase VI, Tet 69/Counter Offensive, Vietnam Summer- Fall 1969, and Vietnam Winter-Spring 1970. Because he had service in the Republic of Vietnam during the Vietnam Ear, he is presumed to have been exposed to herbicides therein. The Board notes further that, during his lifetime, the Veteran had been diagnosed with ischemic heart disease, a condition which is listed under 38 C.F.R. § 3.309(e) as a disease associated with exposure to an herbicides agent (to include Agent Orange). Because the Veteran is presumed to have been exposed to herbicides during his Vietnam service, his ischemic heart disease is presumptively service-connected. Accordingly, the dispositive issue becomes whether the Veteran's ischemic heart disease contributed, materially or substantially, to the cause of his death. Although the death certificate does not show ischemic heart disease as an immediate or underlying cause of his death, the Board finds that the evidence of record supports a finding that the Veteran's ischemic heart disease was a contributory cause of death. 38 C.F.R. § 3.312(c). Indeed, the Veteran's ischemic heart disease affected a vital organ, his heart. Moreover, his ischemic heart disease was of a progressive or debilitating nature as he had been treated for such condition for many years leading to his death. During his lifetime, he had undergone coronary bypass surgery and pacemaker implantation. Lastly, the medical evidence suggests that the Veteran's ischemic heart disease aided or lended assistance to the production of his death, and was a material factor in accelerating his death as his terminal records show not only assessments of respiratory failure and pneumonia, but also significant cardiac problems to include ischemic heart disease. Based on the foregoing, the Board concludes that the preponderance of the evidence supports the finding that the Veteran's ischemic heart disease materially or substantially caused his cardiopulmonary arrest. The appellant's claim for service connection for cause of the Veteran's death must therefore be granted. Given the favorable outcome of this decision, no conceivable prejudice to the appellant could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Therefore a discussion of whether VA's duties to notify and assist the appellant have been met is unnecessary. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs