Citation Nr: 1802917	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  12-21 448	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to service connection for a heart disability, to include as secondary to posttraumatic stress disorder (PTSD); for substitution or accrued benefits purposes.

2. Entitlement to dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1943 to November 1945. The Veteran died in February 2011. The appellant is his surviving spouse.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Center in Philadelphia, Pennsylvania which denied the benefits sought on appeal.

The matters were previously remanded by the Board in May 2015 for additional development. The matters have been returned to the Board.


FINDINGS OF FACT

1. At the time of the Veteran's death, there was a pending service connection claim for a heart condition.

2. The appellant filed a claim for accrued benefits as a surviving spouse within one year of the Veteran's death.

3. The Veteran had coronary artery disease with congestive heart failure as a result of service-connected PTSD.

4. Coronary artery disease with congestive heart failure was an underlying cause of the Veteran's death.


CONCLUSIONS OF LAW

1. The criteria for service connection for a heart disability for accrued benefits have been met. 38 U.S.C. § 1110, 5101, 5107, 5121 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.1000 (2017).

2. Entitlement to DIC based on service connection for the cause of the Veteran's death is warranted. 38 U.S.C. § 1310, 5107 (2012); 38 C.F.R. § 3.102, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection for Accrued Benefits Purposes

An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which a payee was entitled at the time of his or her death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000.

Payment of accrued benefits requires that the Veteran or other payee had a claim for the underlying benefit pending at the time of death or that benefits had been awarded and unpaid at the time of death. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998).

Further, applications for accrued benefits must be filed within one year after the date of death of a purported claimant. 38 U.S.C. § 5121(c); 38 C.F.R. § 3.1000(c). Similarly, a request for a claimant to be substituted as an appellant for purposes of processing a claim for VA benefits to completion must be filed not later than one year after the date of death of the original claimant. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (b).

The Veteran filed a service connection claim for a heart disability in June 2006. As previously noted, he died in February 2011. The service connection claim remained pending at the time of his death. The appellant filed an application for accrued benefits within one year of the Veteran's death and has been properly substituted for the Veteran for purposes of processing the claims to completion. See 38 U.S.C. §§ 5121(c), 5121A; 38 C.F.R. §§ 3.1000(c), 3.1010(b).

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

The Veteran was afforded a VA examination in December 2010. The examiner noted the Veteran was diagnosed with coronary artery disease with congestive heart failure in the 1990s, while PTSD was diagnosed in 2002. The examiner opined the Veteran's PTSD was less likely that cause of his coronary artery disease with congestive heart failure. The examiner noted that the Veteran was diagnosed with PTSD after his diagnosis of coronary artery disease, and that he had other risk factors that could lead to coronary artery disease with congestive heart failure, such as hypertension since the 1950s and diabetes.

In January 2011, H.M.T., a cardiology nurse practitioner, opined that the Veteran's coronary artery disease should be service-connected secondary to his PTSD. H.M.T. noted there were multiple published research studies that linked depression and PTSD with increased risk of dying from heart disease. H.M.T. also opined the Veteran's PTSD caused a lack of energy or stamina to perform physical activity which increased his risk for worsening coronary heart disease. She also noted that prolonged stress and significant levels of PTSD symptoms increased the risk for coronary artery disease, and pointed out that multiple studies support stress and exposure to trauma are cardiotoxic.

An additional medical opinion was rendered in June 2011. The examiner opined that it was less likely than not that the Veteran's ischemic heart disease was related to his PTSD. The examiner noted that PTSD was not identified as a known risk factor for the development of ischemic heart disease, but merely a possible risk factor. The examiner also noted the Veteran was diagnosed with PTSD years after he had been diagnosed with ischemic heart disease.

Medical records immediately following service in the 1940s and 1950s are unavailable. However, a March 2003 VA examination for the Veteran's PTSD noted that he began to have PTSD symptomatology (i.e. nightmares) shortly after he was discharged from service. Additionally, in an October 2008 VA examination for the Veteran's PTSD the examiner noted the duration of PTSD symptoms had been since service. While PTSD was diagnosed many years later, in 2002, his PTSD symptomatology had been present since service. Therefore, the two VA opinions are afforded little probative weight since the rationale for the opinions weighed heavily on the fact PTSD was diagnosed after a heart disability. Furthermore, the June 2011 opinion noted PTSD was a possible risk factor for ischemic heart disease. Moreover, the Board finds the January 2011 private opinion more probative as it provides a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, the evidence is at least in relative equipoise as to whether the Veteran's heart disability, diagnosed as coronary heart disease with congestive heart failure, was proximately due to or the result of PTSD. As such, service connection for a heart disability is warranted on a secondary basis. See 38 C.F.R. § 3.310.

II. DIC

When any veteran dies from a service-connected disability, the veteran's surviving spouse is entitled to DIC. 38 U.S.C. § 1310. A death will be considered to result from a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312.

A disability will be considered the principal 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. A 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312.

The Veteran's death certificate indicates cardiopulmonary arrest was the immediate cause of death. Respiratory failure, congestive heart failure, and coronary artery disease were listed as underlying causes. The Veteran's heart disability has been service-connected herein and noted as a contributing factor to his death on his death certificate and in the June 2011 VA opinion. Thus, entitlement to DIC on the basis of service connection for the cause of the Veteran's death is warranted. See 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2017).


ORDER

Service connection for a heart disability, to include as secondary to service-connected PTSD for accrued benefits purposes, is granted.

DIC on the basis of service connection for the Veteran's cause of death is granted.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs