Citation Nr: 18141938 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-10 708 DATE: October 11, 2018 ORDER Entitlement to service connection for ischemic heart disease is granted. Entitlement to service connection for the cause of death is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. 2. The Veteran suffered from and was diagnosed with an acute myocardial infarction in August 2006. 3. The Veteran’s service-connected ischemic heart disease caused or contributed substantially to the Veteran’s death. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in favor of the Veteran, the criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.6(a), 3.102, 3.159, 3.303, 3.312 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1970 to November 1971. He died in August 2006. The appellant is his surviving spouse. I. Retroactive Benefits The appellant contends that the Veteran’s heart disease was due to his exposure to herbicides. This is not a claim for accrued benefits. The RO, on its own initiative, sent the appellant a letter in May 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov’t of the U.S., 284 F. 3d 1158 (9th Cir. 2002), and the appellant appealed the rating decision denying the benefits considered in this review. The provisions of 38 U.S.C. 5121 (c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure. See 38 C.F.R. § 3.816 (f)(2) (2017). II. Applicable Law Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease. See 38 C.F.R. § 3.816. Nehmer class member means: (i) a Vietnam veteran who has a covered herbicide disease; or (ii) a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1). If the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. 38 C.F.R. § 3.816 (c)(2). The appellant contends that the Veteran suffered from heart disease due to his exposure to herbicides. In June 2011, the appellant argued that based upon the addition to ischemic heart disease to the list of covered herbicide diseases that service connection for ischemic heart disease was warranted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including ischemic heart disease, shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307 (a)(6) (2017). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). The covered herbicide diseases are listed in 38 C.F.R. § 3.309 (e). See 38 C.F.R. § 3.816 (b)(2). This list includes ischemic heart disease, which was added to the list of covered herbicide diseases, effective August 31, 2010. The definition of ischemic heart disease as set out in the applicable regulation 38 C.F.R. § 3.309 (e) includes “acute, subacute, and old myocardial infarction.” See 38 C.F.R. § 3.309 (e); 75 Fed. Reg. 53202 (Aug. 31, 2010). As ischemic heart disease is a disability that warrants presumptive service connection based upon herbicide exposure, the primary considerations are (1) whether the Veteran was exposed to herbicides during his period of service; and (2) whether the Veteran had a diagnosis of ischemic heart disease. The Board notes that the Veteran’s DD-214 states that the Veteran served in the Republic of Vietnam from November 1970 to May 1971; therefore, exposure to herbicides is conceded. See 38 C.F.R. § 3.307. The Board also finds that the Veteran meets the criteria for a diagnosis of ischemic heart disease. The Veteran’s death certificate states that the Veteran’s immediate cause of death was atherosclerotic hypertensive cardiovascular disease. An August 2007 VA examiner stated that the coroner indicated that the Veteran died at home of a natural cause, which was atherosclerotic hypertensive cardiovascular disease. In February 2007, a letter was submitted from the Veteran’s physician, C.S., M.D. The letter stated that the Veteran was his patient and that the Veteran unfortunately had died from an acute myocardial infarction. The Board notes that a medical evaluation of the Veteran in February 2006 did not mention a diagnosis of atherosclerotic cardiovascular disease or ischemic heart disease. There is no evidence of treatment immediately prior to the Veteran’s death, and the appellant stated during the July 2018 Board hearing that an autopsy was not conducted. The Board, however, notes that the Veteran’s physician is competent to provide a diagnosis of an acute myocardial infarction, and that no evidence of record contradicts this diagnosis. While the coroner indicated that the Veteran died of atherosclerotic hypertensive cardiovascular disease, the Board finds that such a diagnosis would be consistent with a diagnosis of an acute myocardial infarction. Based upon the diagnosis of an acute myocardial infarction, and resolving reasonable doubt in favor of the appellant, the Board finds that service connection for ischemic heart disease, including acute myocardial infarction, is warranted as due to exposure to herbicides on a presumptive basis. 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for the cause of death Dependency and indemnity compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. In order for service connection for the cause of a veteran’s death to be granted, it must be shown that a service-connected disability caused substantially or materially contributed to cause death. 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. § 1310; 38 C.F.R. § 3.312. A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). The Veteran’s primary cause of death was diagnosed by the coroner as atherosclerotic hypertensive cardiovascular disease; however, the Veteran’s primary care physician has reported that the Veteran died from an acute myocardial infarction. As stated above, the Veteran has been granted service connection for ischemic heart disease, including acute myocardial infarction. While the Veteran’s immediate cause of death was reported to be atherosclerotic hypertensive cardiovascular disease, the Veteran’s physician stated that an acute myocardial infarction caused his death. There is no evidence of record that contradicts this diagnosis. Further, the Veteran’s daughter, S.C., testified at the Board hearing that she had been informed that the Veteran died of a heart attack. As competent, credible evidence of record indicates that the Veteran died of an acute myocardial infarction and the diagnosis of atherosclerotic hypertensive cardiovascular disease could include ischemic heart disease, the Board finds that the Veteran’s service-connected ischemic heart disease, to include: acute myocardial infarction, caused or materially contributed to the Veteran’s death. Accordingly, the Board finds that service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel