Citation Nr: 1637894 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 10-04 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for a heart condition, to include hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), for accrued benefits purposes. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from October 1942 to November 1945. He died in January 2009. The appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. By that rating action, the RO denied service connection for a heart condition, to include hypertension, as secondary to a service-connected disability, for accrued benefits purposes and service connection for the cause of the Veteran's death. The appellant appealed the RO's rating action to the Board, and this appeal ensued. In August 2014, the appellant was afforded a videoconference hearing before the undersigned. A transcript of the hearing is of record. In November 2014, the Board remanded the matters on appeal to the RO for additional development. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's official Certificate of Death shows that the immediate causes of death were congestive heart failure, and acute myocardial infarction. Other significant conditions contributing to death but not resulting in the underlying immediate causes of death were: anemia; kidney disease; pneumonia; and, hypertension. 2. At the time of his death, service connection was in effect for PTSD. 3. The Veteran's service-connected PTSD caused or contributed materially in producing or accelerating the Veteran's cardiac disease, which resulted in his death. 4. Based on the evidence of record, it is at least as likely as not that the Veteran's cardiovascular disorders present prior to his death were at least in part attributable to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1310, 5103, 5103a, 5107(b) (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.312 (2015). 2. The criteria for service connection, for accrued benefits purposes, for a cardiovascular disability, to include CHF, myocardial infarction and hypertension, to include as secondary to PTSD, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A. 5107, 5121 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.1000 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA Duty to Notify and Assist 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 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. 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 further considered. Cause of Death Claim The appellant seeks service connection for the cause of the Veteran's death, contending that the Veteran's PTSD caused or aggravated a heart disorder, to include hypertension. She has also noted that this was aggravated by the fact that the Veteran refused to take his hypertension medications due to irrational thinking caused by his PTSD, which was complicated by dementia and the residuals of at least two head injuries he sustained from falls due to his PTSD. In order to warrant service connection for the cause of the veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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 it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that the disability 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). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107. Considering all evidence, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's certificate of death indicates that he died in January 2009, at the age of 91. The immediate causes of death were listed as congestive heart failure, and acute myocardial infarction. The death certificate shows that "Other significant conditions contributing to death but not resulting in the underlying immediate causes of death" included anemia; kidney disease; pneumonia; and, hypertension. During the Veteran's lifetime, service connection was in effect for PTSD, evaluated as 100 percent disabling, effective from September 19, 2007. The RO had also granted special monthly compensation based on the need for regular aid and attendance effective from December 28, 2008. Based on the evidence of record, the Board determines that service connection is warranted for the cause of the Veteran's death. Evidence in support of the claims includes opinions from the Veteran's long-time treating physician since 2006, Dr. R.R., M.D., dated in July 2009 and January 2014. In those opinions, Dr. R.R. essentially concluded that the Veteran's PTSD had aggravated his dementia, hypertension, and/or congestive heart failure, and that PTSD was related to his death. In a February 2015 report, Dr. R. R. steadfastly maintained that it was his professional opinion that the Veteran's diagnosis of PTSD had significantly contributed to his hypertension and, thus, his demise. (See reports, prepared by Dr. R. R., dated in July 2009, January 2014 and February 2015). These opinions are supportive of the appellant's claim for service connection for the cause of the Veteran's death. Recognition is given to the fact that the opinions from Dr. R. R. did not provide any rationale. There are other means by which a physician can become aware of critical medical facts, notably by treating the claimant for an extended period of time, such as in the case of Dr. R. R.'s long-term treatment of the Veteran since 2006 until his fatal demise in 2009. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While not clearly articulated, it stands to reason that the long-history of treating the Veteran gave Dr. R. R. intimate knowledge of the Veteran's body mechanics, to include his cardiovascular system and by that basis alone his opinion is found to be probative. Evidence against the claim includes opinions from a VA physician, dated in March 2010, December 2013 and January 2015. In her March 2010 opinion, the VA physician essentially concluded that the Veteran's death was less likely as not (less than 50/50 probability) caused by or a result of any injury or disease in service or secondary to his service-connected PTSD. The VA physician addressed Dr. R. R.'s July 2009 opinion, noting that a review of the Veteran's blood pressure readings from September 2002 to December 2008, showed no evidence of uncontrolled hypertension. The VA physician reported that the Veteran's hypertension appeared to have been well-controlled with medication, and were within normal range. The VA physician further added that the Veteran had a history of significant anemia that required blood transfusions. She stated that it was well known that anemia could worsen cardiac function and enhance symptoms in patients with congestive heart failure. (See March 2010 VA Heart examination report). In December 2013, the same VA physician opined that that there was no evidence that the Veteran's death from congestive heart failure secondary to myocardial infarction was secondary to an event, injury or disease during his military service. The VA physician reiterated her statement from March 2010 that all of the Veteran's available medical records showed no evidence of uncontrolled hypertension, which had been responsive to treatment. In January 2015, the VA physician stated that there had been no change in her previous opinions. (See VA opinions, dated in March 2010, December 2013 (uploaded to Virtual VA) and January 2015). The Board finds the VA physician's opinion to be of reduced probative value in evaluating the claim for service connection for the cause of the Veteran's death because, while well-reasoned, they are in conflict of the evidence of record. Specifically, treatment reports, prepared by Dr. R. R., dated in August 2006 and May 2007, reflecting that the Veteran had elevated blood pressure readings. (See reports, dated from August 2006 to March 2008, received and uploaded into the Veteran's VBMS electronic record on March, 11, 2008). Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999). Thus, the Board is left with Dr. R. R's favorable opinions that lack rationale and the VA physician's opinions that are well-reasoned but do not entirely reflect the clinical status of the Veteran's hypertension prior to his demise. As such, the Board finds that the weight of the evidence is in equipoise. Resolving doubt in the appellant's favor, the medical evidence establishes that PTSD caused or contributed materially in producing or accelerating the Veteran's cardiac disease, which resulted in his death. Thus, service-connected disability was a contributory cause of death, and service connection is warranted for the cause of the Veteran's death. 38 U.S.C.A. §§ 1310, 5107(b). Accrued Benefits The Veteran filed claims for compensation benefits based on service connection for a cardiovascular disability (claimed as a heart condition and stroke), each claimed as secondary to his service-connected PTSD in December 2008. At the time of his death in January 2009, these claims had not been adjudicated. The appellant, as the Veteran's surviving spouse, now seeks adjudication of his pending claim for accrued benefits purposes. 38 U.S.C.A. § 5121; 38 C.F.R. §3.1000; See also 38 U.S.C.A. § 5121A (West 2014 & Supp. 2015) (a surviving spouse may be substituted in place of a Veteran who has died on or after October 10, 2008). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Some chronic diseases, including hypertension, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. §3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. Based on the evidence of record, the Board concludes that service connection for accrued benefits should be granted. Specifically, as was noted above, the evidence indicates that there was medical evidence of a cardiovascular disability before the Veteran's death. While there was no indication of hypertension or a cardiovascular disorder in service, the Board reiterates its analysis from above in placing the most probative value in the opinions of the Veteran's private physicians, who concluded that the Veteran's cardiovascular symptoms were related to his service-connected PTSD. As such, service connection is granted on this basis. ORDER Service connection for the cause of the Veteran's death is granted. Service connection for a cardiovascular disorder, to include hypertension, to include as secondary to service-connected PTSD for accrued benefits purposes, is granted. ____________________________________________ B.T. Knope Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs