Citation Nr: 1806185 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 06-25 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether vacatur of the Board of Appeals' August 9, 2017 decision denying entitlement to service connection of the Veteran's death is appropriate. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph Moore, Attorney-at-Law ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to September 1973. The Veteran died in September 2004. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2009, the Board denied entitlement to service connection for the Veteran's cause of death. The appellant appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (hereinafter Court). In a January 2011 Joint Motion for Remand (JMR), the Court vacated the Board's October 2009 decision and remanded the matter for action consistent with the terms of the JMR. The case was remanded in January 2012 and, on August 2, 2017, the Board again denied entitlement to service connection for the cause of the Veteran's death. As will be explained below, the August 2, 2017 Board decision is vacated. FINDINGS OF FACT 1. Evidence pertinent to the appellant's claim was received in June 2017, prior to the August 2, 2017 Board decision, but not available for review by the Board in arriving at the August 2, 2017 decision. 2. The Veteran died on September [redacted], 2004 due to sudden cardiac death (v. fib arrest) with significant contributory causes of death not resulting in an underlying cause of death identified as diabetes mellitus and coronary artery disease; with the June 2017 corrected cause of death reflecting atherosclerotic cardiovascular disease with significant risk factors of heart failure, hypertension, diabetes, obesity and non-steroidal anti-inflammatory as underlying causes of death. 3. At the time of the Veteran's death, he was service-connected for headaches evaluated as 50 percent disabling from June 30, 2003; shoulder and hand disorder claimed as neuritis, right, evaluated as 20 percent from April 4, 1991; and shoulder and hand disorder claimed as neuritis, left, evaluated as 20 percent from March 27, 2002; he received a total disability based on individual unemployability from June 30, 2003. 4. The medical evidence establishes that the Veteran's service-connected disabilities substantially and materially contributed to his death. CONCLUSIONS OF LAW 1. The criteria for vacatur of the August 2, 2017 decision denying entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 7104(a) (2014); 38 C.F.R. § 20.904 (2017). 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. § 1310 (2014); 38 C.F.R. § 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Vacate The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. On August 30, 2017, the appellant's attorney filed a Motion to Vacate the Board's August 2, 2017 decision. The basis for the request was that the Board had not addressed in its decision evidence submitted in June 2017 that directly addressed the appellant's claim. The evidence had been submitted to the Board in June 2017, the attorney stated, but had apparently not been associated with the claims file at the time the Board reviewed the case and issued the August 2017 decision. After careful review, the Board finds that the attorney's assertions are correct. Of record are documents dated and received June 29, 2017, referenced as "Submission of Medical Evidence and Appellant's Brief." These documents were in the constructive possession of the Board, and they directly address the appellant's claims, but they were not available for review at the time of the August 2, 2017 Board decision. Accordingly, vacatur of the August 2, 2017 decision is warranted. The August 2, 2017 decision denying entitlement to service connection for the cause of the Veteran's death is vacated. II. Service Connection for the Cause of the Veteran's Death The appellant seeks entitlement to service connection for the cause of the Veteran's death. The Veteran died in September 2004. His death certificate shows that the immediate cause of death was sudden cardiac death. Diabetes mellitus II and coronary artery disease were listed as contributory causes of death. To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1310 (2014); 38 C.F.R. § 3.312 (2017). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). At the time of the Veteran's death, he was service connected for headaches associated with shoulder hand disorder; shoulder and hand disorder, left; and shoulder and hand disorder, right. He was also in receipt of a total disability evaluation based on individual unemployability (TDIU). He was not service-connected for sudden cardiac death, diabetes mellitus II, or coronary artery disease. In August 2015, the appellant and her representative submitted a statement contending that the Veteran's service-connected disabilities contributed to the Veteran's death. Specifically, the appellant argued that the Veteran's service-connected headaches and neurological disorder, from which the VA found the Veteran to be totally disabled, severely limited the Veteran's activities and prevented him from exercising. The appellant stated that the Veteran's service-connected disabilities "negatively impacting his health and exacerbating his diabetes and heart problems." See August 2015 Appellant's Brief, (Third Party Correspondence, rec'd 8/18/2015), p. 2. The appellant further argued that the Veteran's service-connected disabilities "likely caused and certainly aggravated the diabetes mellitus and heart disease which his death certificate reflects contributed to his death." See Id., p. 1. In March 2016, the RO obtained a medical opinion. After reviewing the available records and on-line literature, and exploring the appellant's contentions, the VA examiner concluded that the Veteran's service-connected migraine headaches and neuritis of the bilateral upper extremities did not contribute to the Veteran's death. The examiner explained: The [V]eteran's cause of death was that of an arrhythmia, ventricular vibrillation (sic), resulting in sudden cardiac death. Sudden Cardiac death usually occurs in those with some type of structural heart condition, primarily that of Coronary Heart Disease. It is not uncommon in patients with a cardiomyopathy, chronic CHP and associated low EF (ejection fraction). In fact, literature cites that Sudden Cardiac Death is responsible for 1/3 of the deaths in patients with heart failure and cardiomyopathy; as was the in (sic) this particular case. Of importance is to note that Obesity is not a risk factor cited for sudden cardiac death in patients with structural heart disease, chronic chf and cardiomyopathy. Neither are migraine headaches, neuritis or chronic pain. See March 2016 VA DBQ Medical Opinion, eReader, p. 2. Concerning the appellant's contentions, i.e., the Veteran's service-connected disabilities severely limited the Veteran's activities, which likely caused and certainly aggravated the diabetes mellitus and heart failure which the death certificate lists as contributed to his death, the examiner stated ... after reviewing the medical records in their entirety, this examiner finds that the [V]eteran has suffered with obesity even prior to developing any heart disease or co-morbid conditions. In fact, the [V]eteran weighed 256 pounds at the time of separation in 1973 but had gained 80 pounds (304#) by 08/1986. This time frame again being prior to the diagnoses of CAD. Records reveal that his weight has sustained near 300# since this time; before prostrating headaches or neuritis onset and/or becoming compensable at the level of TDIU in 2004. See Id. Also of record is a May 2005 VA examination report, in which the examiner addresses whether or not prescribed pain medication for the service-connected headache disorder may have masked heart symptoms, thus contributing to the Veteran's cause of death. The examiner opined it was less likely than not, and explained: In my experience, this seems unlikely: people with both arthritis and heart disease are treated with pain medicine regularly without such concerns. Also, "sudden cardiac death" does not necessarily indicate that [the Veteran] was having any pain or than an MI occurred. See March 2005 VA Examination for Heart, p. 2. In response to the theory that hypertension was due to military service, the examiner opined that it was less likely as not that hypertension was the result of active service as "The SMRs indicate that [the Veteran] had at least borderline HTN prior to service ... [with] [n]o particular evidence of record that HTN was aggravated by service." Id. In June 2017, the appellant's representative submitted further argument in support of her claim, including a June 2017 medical expert opinion proffered by PC, MD. In pertinent part, the physician opined: After a thorough review of the service and historical medical records, layperson statements and the current medical literature on the subject, it is my medical opinion that it is as likely as not that [the Veteran's] service-connected disabilities directly contributed to the development and exacerbation of the cardiac conditions which resulted in his death. June 2017 Medical Opinion (Third Party Correspondence, eReader, rec'd 6/29/2017), p. 9. In arriving at this opinion, Dr. PD noted that the death certificate had been inadequately filled out and should have stated that the Veteran's death was due to atherosclerotic cardiovascular disease and included the significant risk factors of heart failure, hypertension, diabetes, obesity and NSAID (non-steroidal anti-inflammatory drug) use as underlying causes. Id., p. 7. Concerning the underlying causes of NSAIDs and diabetes mellitus type II, the examiner further explained: [The Veteran] had been prescribed NSAIDs for treatment of his chronic pain since at least 1989 and continuing until the time of his death. The cardiovascular adverse effects attributed to NSAIDs include myocardial infarction, hypertension and dysrhythmias and are well described in the literature. A more recent meta-analysis found the NSAID users were 17% more likely to develop heart failure compared to nonusers, and a 2017 Danish study found NSAID use increased the risk of out of hospital cardiac arrest by 30-50%! The risks are so severe that the American Heart Association, the American College of Cardiology and the American College of Rheumatology recommend avoidance of NSAIDs in patients with cardiovascular disease. [The Veteran] had a long history of being on NSAIDs, including for treatment of his service-connected arm and head pain, before his death. [The Veteran's] service-connected disabilities most definitely contributed to development and progression of his other medical problems, most notably type II diabetes (DMII). DMII is a common condition characterized by hyperglycemia, insulin resistance, and relative impairment in insulin secretion. Although DMII is a multifactorial disease, obesity clearly plays a role in the development. Obesity results in resistance to insulin-mediated glucose uptake resulting in hyperglycemia that is reversible with weight loss. Similarly, exercise has bene shown to prevent the development of diabetes and studies have demonstrated that adherence to an exercise program is associated with reduction in cardiovascular mortality. When [the Veteran] entered the service his weight was 236 pounds, he developed radiating arm pain and was injured while in service, and upon separation his weight was higher at 256; by 1985 his weight was up to 321 pounds. The record clearly documents activity impairment secondary to his service connected disabilities from as early as the 1970s, and obesity resulted due to his lack of physical activity. This all culminated in the development of DMII which is another significant contributor to cardiovascular disease. Id., p. 7-8. Concerning the VA opinions proffered in 2005 and 2016, Dr. PC remarked: I have reviewed the VA medical opinions relating to [the Veteran]. A brief May 2005 opinion concluded, "Contention that taking pain medicine for s/c headache condition masked heart symptoms and contributed to his death. In my experience, this seems unlikely; people with both arthritis and heart disease are treated with pain medicine regularly without such concerns." This examiner's personal "experience" does not reflect the large body of peer-reviewed medical literature on the subject, referenced above, that NSAID use in particular, is associated with increased risks of heart failure and out of hospital cardiac arrest. I have also reviewed the March 2016 VA opinion which stated, "Of importance is to note that Obesity is not a risk factor for sudden cardiac death in patients with structural heart disease, chronic chf and cardiomyopathy. Neither are migraine headaches, neuritis or chronic pain." This statement is demonstrably false. Strong associates have bene demonstrated between measures of abdominal girth and increased risk of sudden cardiac death. Even more recent studies have concluded that the risk of sudden cardiac death increased with increasing body mass index. Clearly, obesity alone is a risk factor for development of DMII, cardiac disease, heart failure and sudden cardiac death. Similarly, multiple studies have shown that migraine headaches are associated with increased cardiovascular risks. A recent systematic review and meta-analysis published in 2015 that included 15 studies found migraineurs to have an increased risk of MI and concluded, 'migraine can be appropriately considered an overall risk factor for cardiovascular diseases.' Id., p. 9. The medical expert concluded: [The Veteran] died in September 2004, and although his death certificate is inadequate, the medical record provides a clear nexus between his service-connected disabilities and death. The record clearly demonstrates correlation between [the Veteran's] extremity pain and associated chronic headaches and diminished physical activity resulting in obesity and uncontrolled diabetes. These two diseases are significant risk factors for development of the cardiac conditions which contributed directly to his death. Add to this the long-term use of NSAIDs to treat his service connected pain and its concomitant increased risk of cardiovascular disease, and the picture becomes even more clear. Id. In summary, Dr. PC linked the Veteran's death to his service-connected headache disorder and bilateral shoulder and hand neurological disorders, and the pain medications prescribed to treat them. The bilateral shoulder and hand disorder had been service-connected since 1991, a period of 12 years. Moreover, the severity of these disabilities is recognized in the 70 total percent disability evaluated which was awarded in June 2003, and the TDIU awarded based at the same time-just prior to his death. The Board observes that Dr. PC, a medical doctor, cited numerous medical articles and other research in his opinion, in addition to demonstrating careful review of the claims file, to include service treatment records. The Board thus finds the opinion to be credible and probative, in addition to competent. In addition, Dr. PC addressed the previous March 2016 and March 2005 VA opinions and offered competent and credible reasons for their insufficiency. The Board therefore adjudges the June 2017 of Dr. PC to provide a sufficient basis upon which to decide this claim, and to be of greater probative value than the March 2016 and March 2005 VA opinions. Accordingly, service connection for the cause of the Veteran's death is warranted. As the appellant's claim is granted in full, further consideration of the appellant's additional claims, including that of the Veteran's exposure to the herbicide Agent Orange for the purposes of service connection for diabetes mellitus, need no longer been discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board observes that this statement is not intendend in any way to speak to the veracity of the appellant's assertions. Rather, it is to acknowledge that the Board has not addressed this argument in the granting of the benefit sought on appeal. The Board sincerely thanks the appellant for her husband's service. ORDER The August 2, 2017 Board decision denying service connection for the cause of the Veteran's death is vacated. Service connection for the cause of the Veteran's death is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs