Citation Nr: 1805521 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-34 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1984 to July 2005. He died in 2009, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2017, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. The Veteran died in 2010. His death certificate lists the immediate cause of death as cardiac arrhythmia. 2. Hypertension was manifest to a degree of 10 percent within one year from the date of the Veteran's separation from service; alternatively, it had an onset in service and was continuous since service separation. 3. The evidence is at least evenly balanced as to whether hypertension was a contributory cause of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1101, 1110, 1131, 1310, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.5, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, a surviving spouse, child, or parent is generally entitled to DIC. 38 U.S.C. § 1310 (West 2012); 38 C.F.R. § 3.5(a) (2017); see generally 38 U.S.C. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed above, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death - e.g., when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death. Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). There are primary causes of death that, 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, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992). In short, the appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's certificate of death shows that he died in 2009 at the age of 45. The death certificate lists the immediate cause of death as cardiac arrhythmia. Emergency services records, and emergency room department records, from the day of his death show that the Veteran suddenly collapsed at work. He was found unresponsive and apneic. CPR was performed until emergency services arrived 15 minutes later. Emergency personnel connected the Veteran to a heart monitor, which indicated a ventricular fibrillation. CPR was continued and the Veteran was defibrillated, intubated, shocked, and given medication. He arrived at the hospital in cardiac arrest, but was unable to be revived. The emergency room records documented his history of hypertension. The appellant reports that the Veteran's hypertension was incurred in or is related to service, and contributed to his death. During his lifetime, the Veteran was not service-connected for hypertension; his service-connected disabilities consisted of depression with moderate panic disorder (30 percent disabling), a lumbar spine disability (10 percent disabling), a right knee disability (10 percent disabling), left ulnar neuropathy (10 percent disabling), a left shoulder disability (noncompensable), and a right shoulder disability (noncompensable). In addition to the laws and regulations discussed above, service connection for certain chronic diseases, including hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). The Veteran must have served 90 days or more during a war period or after December 31, 1946, and the chronic disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker, 708 F.3d at 1337), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1339. Under VA regulations, hypertension must be confirmed by readings taken two or more times on at least three different days. The 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). Additionally, in order for hypertension to be considered compensably disabling, the evidence must show that diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104, DC 7101. Service treatment records show numerous elevated blood pressure readings throughout service, including, for example, 140/90 (February 1986), 164/80 (March 1986), 161/81 (December 1993), 152/89 (June 1994), 155/81 (March 1997), 139/93 (October 1998), and 154/102 (July 2005). In a May 2004 STR, the Veteran circled "yes" to a question asking if he had ever been told that he had hypertension, or if he was taking medication for high blood pressure. Further, in an October 2012 private medical report, Dr. P. cited several in-service blood pressure measurements, and stated, "thus, with certainty, [the Veteran] did have hypertension." A July 2014 VA examiner stated, "this examiner agrees that the Veteran likely had undiagnosed hypertension while in service based on review of the records." Hypertension was also documented within one year of discharge. 38 C.F.R. §§ 3.307(a); 3.309(a). A September 2005 treatment record, prepared 2 months after discharge, diagnosed systemic hypertension treated with Hydrochlorothiazide. A December 2005 VA examination report, prepared approximately 5 months after discharge, documented hypertension treated with Lisinopril. These records, documenting continuous medication for control, further support a finding that the condition was manifest to a degree of at least 10 percent. 38 C.F.R. § 4.104, Diagnostic Code 7101. Alternatively, the record also demonstrates a continuity of symptomatology since discharge. Medical records, and the appellant's admissible and believable testimony, indicate the Veteran was treated continuously for hypertension ever since service discharge. The sum of this evidence indicates service connection is warranted for hypertension. On the matter of whether his hypertension was a contributory cause of death, the record contains two opinions. In the October 2012 private medical report, Dr. P. stated he had reviewed the Veteran's medical records. As previously indicated, he found, with certainty, that the Veteran had hypertension in service based on in-service blood pressure readings. Dr. P. stated that while an autopsy had not been performed, the records indicated that the Veteran's death was most likely due to a sudden cardiac arrest. He explained that hypertension is certainly a risk factor for heart disease, and as such, "would have been a contributing factor to his sudden cardiac arrest." On VA examination in July 2014, the examiner stated the Veteran suffered from sudden death due to cardiac arrest. He stated that this is a result of acute coronary syndrome, often resulting in a rhythm disturbance that is a result of acute ischemia and insult to the myocardium. The underlying etiology is ischemic heart disease. The examiner outlined the Veteran's risk factors in addition to hypertension, including tobacco use, hyperlipidemia, being male, and being over 40. The examiner stated that hypertension is a risk factor, but is a minor risk and is not causative, as is tobacco use. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the appellant's favor, the Board concludes that service connection for the cause of the Veteran's death is warranted. The opinion of Dr. P. is adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Dr. P. based his conclusions on an examination of the claims file, including the Veteran's personal medical history and diagnostic reports. He provided a rationale for the conclusions reached. The opinion of the July 2014 VA examiner provides a contrasting, and well-reasoned viewpoint. On this record, the evidence is in equipoise in showing that the Veteran's hypertension was a contributory cause of his death. VA's duty to assist is not a license for a "fishing expedition." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In resolving any doubt in the appellant's favor, service connection is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs