Citation Nr: 1801672 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-23 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Drew Early, Attorney WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to November 2000 and from October 2002 to June 2007. He died in April 2011. The Appellant was the Veteran's surviving spouse at the time of his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Agency of Original Jurisdiction (AOJ) for the Appellant's claim is the RO in Atlanta, Georgia. The Appellant testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a June 2017 Board hearing. A transcript of the hearing is included in the claims file. FINDINGS OF FACT 1. The Veteran's immediate cause of death was respiratory failure, due to or as a consequence of an anoxic brain injury, due to or as a consequence of cardiac arrhythmia and cardiac arrest. 2. The Veteran's tinnitus was the only service-connected disability during his lifetime. 3. Resolving all doubt in the Appellant's favor, the Veteran's death is causally related to his active duty service, and the Veteran's hypertension, which manifested in service, caused or contributed substantially or materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310, 1311, 1318, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant filed a claim in August 2012 seeking entitlement to service connection for the cause of the Veteran's death. Specifically, in multiple statements throughout the appeal, as well as the June 2017 Board hearing testimony, she contended that the Veteran's hypertension, which manifested in service but was not treated during active duty service, caused or substantially contributed to his death. A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive dependency and indemnity compensation (DIC) benefits. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as 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). 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 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 C.F.R. § 3.312(c)(4). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In determining whether VA compensation is warranted for a DIC claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a [claimant] must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a disability in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331, 1340 (Fed. Cir. 2013). An April 2011 autopsy report showed that the Veteran had substantial heart disease, most of which was attributed to his hypertension. Cardiovascular-renal disease, including hypertension, is a chronic disease listed under 38 C.F.R. § 3.309(a); thus, 38 C.F.R. § 3.303(b) is applicable. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases (such as hypertension) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1043. The Veteran's death certificate showed that he died in April 2011. The immediate cause of death was respiratory failure, due to or as a consequence of an anoxic brain injury, due to or as a consequence of cardiac arrhythmia and cardiac arrest. The death certificate stated that the interval between the onset of these causes and the Veteran's death was unknown. At the time of the Veteran's death, only his tinnitus was service connected. As there is no indication in the record that the Veteran was receiving VA compensation for a service-connected disability rated totally disabling, the provisions of 38 U.S.C. § 1318 do not apply to the Appellant's claim. Thus, the questions to be answered are whether the Veteran developed respiratory failure, anoxic brain injury, cardiac arrhythmia, and/or cardiac arrest during service, and whether these disorders were causally or otherwise related to his active duty service. As indicated by many lay and medical statements, including an April 2012 letter from a private doctor, the Veteran suffered cardiac arrest while exercising at the gymnasium in March 2011, which led to an immediate anoxic brain injury with total dependency of life support prior to his eventual death in April 2011. The April 2011 autopsy report shows that the Veteran had substantial heart disease at the time of his death, which was mostly attributed to hypertension. A medical professional determined in the autopsy report that in the absence of any overt congenital heart defect or cardiomyopathy, the initial event leading to cardiac arrest was arrhythmia occurring in the setting of hypertensive heart disease, but that the ultimate cause of death was due to complications of anoxic brain injury and ventilator-associated pneumonia. As noted above, the Appellant contends that the Veteran developed hypertension in service, which went untreated until after service, and that his hypertension substantially or materially contributed to his death. She alleges that the Veteran was not diagnosed or treated for hypertension in service because he was an aviator and such treatment would prevent him from flying. Under VA regulation, hypertension must be confirmed by readings taken two or more times on at least three different days. Regulation also clarifies that the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1) (2017). Additionally, in order for hypertension to be considered compensably disabling, the evidence must show that diastolic pressure is predominantly 100 or more, or; that systolic pressure is predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. The Veteran's service treatment records show many instances where his systolic pressure was 160mm or more and/or his diastolic pressure was 90mm or more. Such readings can be found in service treatment records from January 2005, February 2006, and October 2006. His service treatment records also show that his blood pressure readings were tested over three-day spans on several occasions going back to his service in 1993 due to elevated blood pressure readings. Additionally, a December 2006 chronological record of medical care notes that the Veteran was on the cusp of stage one hypertension. Given this evidence, and after affording the Appellant the benefit of the doubt, the Board finds that the Veteran's hypertension manifested during his active duty service. Thus, the only question to be answered is whether the Veteran's hypertension caused or contributed substantially or materially to his death. In this regard, the claims file contains two medical opinions discussing the causal connection between the Veteran's hypertension and the cause of his death. Specifically, the April 2012 private doctor, who treated the Veteran prior to his death, noted that the Veteran had an enlarged heart and chronic kidney disease and that hypertension is a major risk factor for cardiac disease, which can result in coronary heart disease and congestive heart failure. Although this doctor did not have the Veteran's blood pressure readings, he opined that the Veteran's hypertensive heart disease was a significant factor in leading to his cardiac arrest. Additionally, the claims file includes the opinions of an independent medical examiner from February 2015, with an addendum medical opinion from June 2017, finding that the Veteran's death was proximately caused by his hypertension. This medical professional reviewed the Veteran's records, as well as the Appellant's statements and lay history, and concluded that it was more likely than not that the Veteran's death was secondary to effects of longstanding untreated hypertension, which was related to his active military service. This doctor explained that the lack of treatment of the Veteran's high blood pressure and hypertension during service and in a timely and appropriate matter was the proximate cause of his death via cardiac arrest, which caused anoxic brain damage. Given this evidence, and after affording the Appellant the benefit of the doubt, the Board finds that the Veteran's hypertension, which manifested in service, caused or contributed substantially or materially to his death. The Board finds the opinions of the April 2012 and February 2015 private doctors to be highly probative evidence regarding the cause of the Veteran's death. Additionally, the Board notes that the claims file does not contain a medical opinion indicating that the Veteran's cause of death was not proximately due to his hypertension. Accordingly, after affording the Appellant the benefit of the doubt, the evidence is at least in equipoise in showing that entitlement to service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. However, the record also shows that the Appellant re-married in 2013. See 38 C.F.R. § 3.55 (2017). Thus, the Board leaves to the AOJ to determine the amount and effective date(s) of DIC benefits the Board has granted in this decision. ORDER Service connection for the cause of the Veteran's death is granted from the time of the Veteran's death until the time the Appellant remarried in 2013, subject to VA laws and regulations pertaining to DIC benefits. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs