Citation Nr: 1704195 Decision Date: 02/10/17 Archive Date: 02/23/17 DOCKET NO. 10-02 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The appellant and her son ATTORNEY FOR THE BOARD Jason George, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945. The Veteran died in November 2008 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2011, the appellant and her son presented sworn testimony during a Board video-conference hearing before a Veterans Law Judge. A copy of the hearing transcript has been associated with the file. In February 2012 and June 2012, the Board obtained advisory opinions from the Veterans Health Administration (VHA) and copies of the opinions were furnished to the appellant and her representative. Thereafter, in a September 2012 decision, the Board denied the appellant's claims of entitlement to service connection for the cause of the Veteran's death and entitlement to dependency and indemnity compensation benefits under 38 U.S.C.A. § 1318. The appellant appealed the denial of the claim of entitlement to service connection for the cause of the Veteran's death to the United States Court of Appeals for Veterans Claims (Court). In April 2014, the Court vacated the Board's decision and remanded the matter for action. During the pendency of this claim, the Veterans Law Judge who conducted the July 2011 hearing retired. In April 2015, the appellant waived her right to seek an additional hearing before a different Veterans Law Judge; however, in August 2015, she requested a new Board hearing. Therefore, the matter was remanded in May 2015 in order to afford the appellant her requested Board hearing. In January 2016, the appellant and her son testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the file. In April 2016, the Board sought an opinion from an independent medical expert (IME) as to the matter on appeal. In June 2016, an IME opinion was obtained; however, in September 2016, the Board requested clarification of the opinion. Such was obtained later that same month. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died at age 84 in November 2008; the death certificate lists the cause of death as arrhythmia due to arteriosclerotic cardiovascular disease, congestive heart failure, and chronic pulmonary disease. 2. At the time of his death, the Veteran had a 100 percent rating for posttraumatic stress disorder (PTSD), which had been in effect since July 2000. 3. The Veteran's PTSD at least as likely as not aggravated his fatal cardiovascular disease, and was, thus, a contributory cause of death. CONCLUSION OF LAW The Veteran's service-connected PTSD contributed substantially and materially to the cause of his death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.303, 3.310, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for the cause of the Veteran's death herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection for cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or a contributory cause of the Veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (a); see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially, and combined to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (c)(1). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it 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. 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 claimant. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appellant is seeking to establish entitlement to service connection for the cause of the Veteran's death. At the time of his death in November 2008, he was service-connected for PTSD, which was found to be related to the Veteran's experiences in World War II and his participation in the liberation of Nazi concentration camps. Such disability was rated as 10 percent disabling from September 3, 1985; 30 percent disabling from March 21, 1989; and 100 percent disabling from July 24, 2000. In connection with his claim for PTSD, the Veteran reported that he had been haunted by bad memories of service for 40 years and that he had repressed those memories by working himself to exhaustion so that he did not have to think about what happened in service. During his lifetime, the Veteran was not service-connected for any disability other than PTSD. The Veteran died on November [redacted], 2008. His death certificate lists his immediate cause of death as arrhythmia, which lasted seconds, due to or as a consequence of arteriosclerotic cardiovascular disease/congestive heart failure, which had been present for years, and chronic obstructive pulmonary disorder, which had been present for years. The appellant claims that the Veteran's PTSD was a principal or contributory cause of death in that it caused or aggravated the Veteran's fatal heart disease. Supporting the appellant's contention are the opinions of the Veteran's former primary care provider (M.B., MD) and medical research submitted by both Dr. M.B. and the appellant that supports a link between PTSD and cardiac disabilities. As to Dr. M.B., in a June 2009 letter, he noted that the Veteran died suddenly in November 2008, and that he was service-connected for PTSD. Dr. M.B. wrote that "it is possible that the stress from [the Veteran's] PTSD contributed to his sudden death." Dr. M.B. cited to a 2007 study in the Journal of the American Medical Association study entitled "PTSD Linked to Heart Disease." The abstract included with Dr. M.B.'s opinion noted that male veterans with PTSD are more likely to develop coronary heart disease. In a September 2009 letter, Dr. M.B. wrote that the VA treated the Veteran for his PTSD for many years, and that it was more likely than not that the Veteran had been suffering from PTSD at the time of his discharge and onward. In an August 2011 letter, Dr. M.B. wrote that "it is more likely than not that [the Veteran's] PTSD contributed to his dying from heart disease, as stress is a risk factor for ischemic heart disease." He reiterated that conclusion in an April 2012 letter. Separately, the appellant submitted internet research regarding a possible link between PTSD and cardiac disabilities. A November 2010 article from Science Daily noted that a recent study found that PTSD was an independent risk factor for cardiovascular disease. A separate November 2010 article from WebMD stated that PTSD appears to be a risk factor for atherosclerosis. The appellant's former representative submitted an article from The Open Cardiovascular Medicine Journal from 2011 that surveyed the various medical research regarding PTSD and cardiovascular disabilities. The article concluded that "persons with PTSD have been reported to have an increased risk of hypertension, hyperlipidemia, obesity, and cardiovascular disease." Based on the foregoing, the Board determined that an expert opinion was necessary to adjudicate the appellant's claim. Therefore, the Board obtained opinions through the Veterans Health Administration in February 2012 and July 2012 on the question of whether the Veteran's PTSD caused or aggravated his fatal heart disease. A February 2012 VHA opinion was determined to be non-responsive to the medicolegal question presented. However, in July 2012, a VHA cardiologist expressed the opinion that the Veteran's PTSD absolutely did not cause his heart disease or death, was not the principal cause of death, and was not at all likely to have aggravated his heart disease or hasten his death. Rather, the Veteran's death was the natural clinical course of his hypertension, genetics, lifestyle and age. In addition, the VHA expert stated that there was only a tenuous link between PTSD and coronary disease at best and that the Veteran's inadequately controlled hypertension, family history, obesity and physical inactivity as well as his age and sex were more than plenty to explain any coronary disease he may have developed late in life and would account for the Veteran's not untimely demise at age 84. However, as the Court determined in an April 2014 decision, the July 2012 VHA expert's opinion was found to be inadequate on numerous bases and, consequently, may not be relied upon in adjudicating the case, or in additional medical opinions that may be offered. As such, in May 2015, the Board remanded the case in order to obtain additional etiological opinions. In this regard, opinions of two VA examiners from July 2015 found it less likely than not that the Veteran's PTSD contributed to his November 2008 death. In the first opinion, a VA psychiatrist concluded that "there is no evidence to show any aggravation of cardiac disease due to PTSD." The psychiatrist noted that the Veteran's onset of arrhythmias occurred late in his life (in 2002) and after the Veteran's PTSD had been fairly stable for years and well managed with routine supportive counseling and minimal medications for sleep and mood. Separately, a VA internal medicine physician determined that it is less likely than not that the Veteran's death was caused by his service-connected PTSD, and that it is less likely than not that the Veteran's PTSD caused or aggravated his fatal heart disease. This physician noted the recent research confirms that "psychosocial factors may possibly contribute to the early development of atherosclerosis." Despite such acknowledgement, the physician noted that the Veteran "did not demonstrate early development of coronary atherosclerosis," and the Veteran did not have an episode of known ischemic heart disease. To resolve the conflicting opinions of record, in July 2016, the Board sought the opinion of an IME from a university school of medicine. The IME opined that, despite treatise evidence demonstrating a correlation between PTSD and hypertension and cardiovascular disease, one should not draw the conclusion that PTSD causes hypertension or cardiovascular disease. The IME stated that other factors, such as genetic predisposition, unhealthy lifestyles, possible exposure to infectious disease, environmental agents, and psychological stress, may better explain the correlation reflected in the medical literature. Ultimately, the IME concluded that it was less likely than not that the Veteran's service-connected PTSD caused or aggravated his diagnosed hypertension, cardiovascular disease, or arrhythmia, or was the cause of his death. In September 2016, the Board sought clarification from the IME as such appeared to be internally inconsistent. Specifically, the Board asked whether, given that the Veteran had been service-connected for PTSD since September 1985, and awarded a 100 percent rating for PTSD in July 2000, was it least as likely as not that the Veteran's cardiovascular disease was caused or aggravated by psychological stress from his PTSD, and whether the Veteran's PTSD was thus a contributory cause of death. Later in September 2016, the IME responded that, while it was less likely than not that the Veteran's PTSD caused the development of cardiovascular disease, it was as likely as not that such may have aggravated it. In this regard, the IME again noted that there was no evidence that the association of PTSD with cardiovascular disease represents a causal relationship; however, it was possible that the presence of PTSD aggravates cardiovascular disease in patients that have cardiovascular disease or are predisposed to develop cardiovascular disease. Based on the September 2016 IME opinion, the Board concludes that the Veteran's service-connected PTSD contributed to his death. In this regard, the IME opinion thoroughly considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered a clear conclusion with supporting data as well as a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Further, the letters from Dr. M.B., the Veteran's treating physician and the articles and studies submitted by the appellant, while conclusory and general in nature, are supportive of a link between the Veteran's PTSD and cardiovascular disease. By contrast, the Board assigns less probative weight to the VA opinions of records as they have not examined the relationship between psychological effects, PTSD, and cardiovascular disease, which the September 2016 IME identified as relevant to the claim. Therefore, consistent with the mandate to accord the benefit of the doubt where the evidence reaches a stage of balance, the Board finds that at least a state of relative equipoise has been reached on the question of whether the Veteran's service-connected PTSD aggravated his fatal cardiovascular disease. Accordingly, the Board finds that the Veteran's service-connected PTSD was a contributory cause of death. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. ORDER Service connection for cause of the Veteran's death is granted. ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs