Citation Nr: 18151348 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-01 640 DATE: November 16, 2018 ORDER Service connection for ischemic heart disease is granted. Service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The Veteran had in-country service in the Republic of Vietnam during the Vietnam War era. 2. The Veteran died in October 2002. According to his death certificate, the primary cause of death was septic shock due to (or as a consequence of) small bowel infarction due to (or as a consequence of) a heart transplant due to (or as a consequence of) dilated cardiomyopathy; with the removal of a Novacor (13-month implant) as a contributing condition contributing to death. His medical records confirm that he had ischemic heart disease during his lifetime. 3. At the time of the Veteran’s death, he was not service-connected for any heart-related disability. 2. The evidence is at least in equipoise regarding whether the Veteran’s ischemic heart disease was a contributory cause of his death. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1310, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.1000. 2. The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1949 to May 1971. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision. The record reflects that the Department of Veterans Affairs (VA) St. Paul Pension Management Center processed the appellant’s claim although the Regional Office (RO) in Houston, Texas, is the appellant’s servicing RO. During the Veteran’s lifetime, he submitted a claim for benefits based on a heart condition in November 1995. Service connection was denied in a rating decision dated in June 1996. In November 2014, the appellant testified at a hearing before a Veterans Law Judge (VLJ) via a videoconference hearing. A transcript of that hearing is of record. Subsequently, the presiding VLJ retired from the Board. Applicable law and regulations require that the VLJ who conducts a hearing must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In correspondence dated January 2018, the appellant was notified of the retirement of the VLJ who presided over her November 2014 hearing, and she was offered the opportunity to be scheduled for another hearing. The appellant elected to testify at a new hearing. That hearing occurred before the undersigned in October 2018. A transcript of that hearing is of record. Entitlement to service connection for the cause of the Veteran’s death. The Veteran died in October 2002. According to his death certificate, the primary cause of death was septic shock due to (or as a consequence of) small bowel infarction due to (or as a consequence of) a heart transplant due to (or as a consequence of) dilated cardiomyopathy; with the removal of a Novacor (13-month implant) as a condition contributing to death. An October 2002 autopsy report, received by VA in April 2009, showed final anatomic diagnoses as: 1) status post heart transplant; 2) status post partial colectomy with neurotic stoma; 3) multiple acute and subacute infarctions of the spleen, kidney, and liver; 4) ischemic necrosis, hemorrhage of the cecum, and terminal ileum; 5) moderate to severe pulmonary edema with acute pneumonia; and 6) moderate to severe arteriosclerosis. 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A 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 itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). 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. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), service connection may also be established by showing continuity of symptoms or the existence of a chronic disease during an applicable presumption period. 38 C.F.R. § 3.303(b); 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, such as Agent Orange. 38 U.S.C.§ 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Certain diseases have been associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service, to include ischemic heart disease. 38 C.F.R. § 3.309(e). Ischemic heart disease, defined by 38 U.S.C. § 3.309(e), includes acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). In addition to the presumptive criteria, the appellant may establish service connection based on exposure to herbicide with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The appellant contends that the Veteran suffered from ischemic heart disease and therefore should be awarded service connection for such on a presumptive basis based upon service in Vietnam. The appellant further asserts that the Veteran’s ischemic heart disease significantly contributed to his death. The Board finds that, when considering the benefit of the doubt rule, service connection for ischemic heart disease is warranted. Specifically, in May 2016, a VA examiner reviewed the claims file and provided a positive opinion on the matter. The examiner concluded that it was “at least as likely as not” that the Veteran had ischemic heart disease during his lifetime. The examiner noted that a diagnosis of ischemic heart disease requires a stenosis of at least 70 percent or evidence of symptoms caused by ischemia. The examiner indicated that the Veteran met both criteria based on stenotic lesion of 60 percent to 70 percent which was stented, as well as myocardial infarction. The examiner based that conclusion upon a review of the Veteran’s post-military records. Because ischemic heart disease is a presumptive disease pursuant to 38 C.F.R. § 3.309(e), and because the Veteran has been shown to have served in the Republic of Vietnam during the Vietnam War era, the Board finds that he meets the basic criteria for presumptive service connection for this disability. See November 2011 response from the National Personnel Records Center (indicating that the Veteran had in-country service in the Republic of Vietnam during the Vietnam War era). Accordingly, service connection for ischemic heart disease is granted. Because the Veteran is now service-connected for ischemic heart disease, the Board finds that the claim for service connection for cause of death must also be granted. Although such was not specifically listed on the death certificate (and there are two negative opinions of record dated in May 2016 and November 2017 indicating that ischemic heart disease did not contribute to the Veteran’s death), the Board notes that service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312(c)(3). In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, 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). Here, the Board observes that the evidence demonstrates that the Veteran had a history of non-ischemic cardiomyopathy; the progression of his cardiac symptoms resulted in the implantation of a Novacor left ventricular assist device in September 2001; he had several infections resulting from that implantation; he dropped the external component of his left ventricular assist device which caused it to malfunction and shut off completely; he endured approximately three hours of hypotension, weakness, and dizziness; upon admission to the emergency room at the hospital, the Novacor device was successfully restarted but the Veteran required a heart transplant; subsequent to the heart transplant, the Veteran went into respiratory and renal failure due to septic shock caused by an ischemic bowel; and despite treatment, the Veteran continued to decline until he was found to be severely bradycardic and then expired. Significantly, the evidence of record supports a finding that the Veteran’s now service-connected ischemic heart disease, while not related to the primary cause of death, did result in debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312(c)(3). Even considering the September 2017 medical opinion that “ischemic heart disease played no role in [the Veteran’s] death since his atherosclerotic had been removed and he received a transplanted heart . . . free of atherosclerosis or coronary artery disease,” the Board finds that the evidence is at least in equipoise as to whether the ischemic heart disease contributed to the Veteran’s death. The Veteran was diagnosed with coronary artery disease (a type of ischemic heart disease) and myocardial infarction in June 2001. While no ischemic cardiac symptoms were documented after Novacor insertion in September 2001, the Veteran had numerous infections related to the Novacor insertion which eventually led to the Veteran’s need for a new heart. Therefore, as the appellant has argued, while not the primary cause of death, ischemic heart disease certainly resulted in general impairment of health which led to the heart transplant resulting in small bowel infarction, septic shock, and eventually respiratory/renal failure. In other words, the Veteran’s service-connected ischemic heart disease aided or lent assistance to producing death. Thus, service connection for cause of the Veteran’s death is also granted. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel