Citation Nr: 1746914 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-02 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York 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 M. Thomas, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1942 to March 1945. Unfortunately, the Veteran died in June 2010. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in New York, New York. FINDINGS OF FACT 1. During his lifetime, service connection was in effect for an anxiety disorder. 2. The Veteran died in June 2010 and the death certificate identified the cause of death as hypertensive and arteriosclerotic cardiovascular disease. 3. The medical evidence demonstrates that the Veteran's fatal arteriosclerotic heart disease was etiologically related to his service-connected anxiety disorder. CONCLUSION OF LAW The criteria to establish service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Given the favorable outcome of this decision, no prejudice to the appellant could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for Cause of Death - Laws and Regulations Dependency and Indemnity Compensation (DIC) is payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a)(1). In order to establish service connection for the cause of death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability 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). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service connected disability apply. 38 U.S.C.A. § 1310. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). Service Connection Claim for the Cause of the Veteran's Death - Analysis As noted, the Veteran died in June 2010, and the appellant is seeking service connection for the cause of his death. The death certificate identified the cause of the Veteran's death as hypertensive and arteriosclerotic cardiovascular disease. Alzheimer's disease and colon cancer are identified as other significant contributing to death, but not resulting in the immediate cause of death. This death certificate was signed by a physician. At the time of the Veteran's death, service connection was in effect for psychoneurosis (anxiety), rated as 50 percent disabling and malaria, rated both ratings effective from March 24, 1945. Also during his lifetime, hypertension had been diagnosed, as reflected on private treatment records dated February 2008 to June 2009. The only pertinent medical opinion of record (received in December 2010) is authored by Dr. K.L., the Veteran's treating oncologist. This physician noted that the Veteran had been diagnosed with hypertension, as well as an anxiety disorder, and then opined that the Veteran's arteriosclerotic cardiovascular disease was "very likely" related to his service-connected anxiety disorder. In finding so, Dr. K.L. observed that the Veteran's blood pressure fluctuated greatly for many years despite taking anti-hypertensive medication, and that this is typical of anxiety-induced hypertension. Dr. K.L. also explained that the Veteran did not have a family history of hypertension and had normal cholesterol levels. Dr. K.L. concluded that the Veteran's arteriosclerotic heart disease is likely from his hypertension, which is from his service related anxiety disorder. Based on the Dr. K.L.'s rationale, the Board finds that, at the very least, the Veteran's arteriosclerotic heart disease was aggravated by his service-connected anxiety disorder. This opinion is adequate and probative, and supported by adequate rationale. As the Veteran's treating physician, Dr. K.L. is aware of the Veteran's medical treatment history and anxiety related to service. There are no contrary medical opinions of record. In light of the probative medical evidence supporting an etiological relationship between the Veteran's fatal heart disease and his service-connected anxiety disorder, the Board finds that 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. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs