Citation Nr: 1817010 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-15 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Bryan Jones, III ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1960 to October 1963. He died in January 2014. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the VA Regional Office (RO) in Milwaukee, Wisconsin. Jurisdiction currently resides at the RO in New Orleans. On the appellant's substantive appeal dated October 2015 for her cause of death claim, she requested a hearing before a Veterans Law Judge. However, she cancelled her hearing request in January 2016. Accordingly, her request for a hearing is considered to be withdrawn and her claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2017). In September 2016, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. In an August 2017 Memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision with respect to this issue and remanded the case. Accordingly, the issue has been properly returned to the Board for further consideration. FINDINGS OF FACT 1. At the time of his death, the Veteran was service-connected for residuals of a viral infection with pericarditis and myocarditis; his disability ratings for his residuals of a viral infection have included consideration of symptoms associated with coronary artery disease (CAD). 2. The Veteran's service-connected heart disability, which includes residuals of a viral infection with pericarditis, myocarditis; and CAD was a contributory cause of the Veteran's death. CONCLUSION OF LAW The criteria to establish service connection for cause of death have been met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Laws and Analysis for Cause of the Veteran's Death The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312 (a). 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. 38 C.F.R. § 3.312 (c). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312 (c)(1). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Service-connected diseases or injuries involving active processes 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 disease or injury primarily causing death. 38 C.F.R. § 3.312 (c)(3). The Board must determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In evaluating credibility, the Board may consider, among other things, interest, bias, and internal inconsistency. Caluza v. Brown, 7 Vet. App. 498 (1995). After determining the competency and credibility of the relevant evidence, the Board must then weigh its probative value. As noted in the Introduction section above, in September 2016, the Board denied the appellant's claim for service connection for the cause of the Veteran's death. In an August 2017 Memorandum decision, the Court vacated the Board's decision with respect to this issue and remanded the case. Specifically, the Court noted that, in 1985, VA awarded the Veteran service connection for residuals of a viral infection with pericarditis and myocarditis. In 2000, he began having symptoms of chest pain. During a February 2009 VA examination, the examiner had estimated Metabolic Equivalent of Task (MET) levels of 3-5, and diagnosed him with coronary artery disease. The Veteran subsequently died in January 2014. His death certificate listed pneumonia as the immediate cause of death. The death certificate also reported that hypertensive and atherosclerotic cardiovascular disease contributed to his death. In January 2014, the appellant applied for service connection for the cause of the Veteran's death. In March 2014, VA obtained a medical nexus opinion on whether The Veteran's death was caused by any service-connected diseases or disabilities. After reviewing the claims file, and noting that he was diagnosed with viral pericarditis with probable myocarditis in 1963, the VA examiner opined as follows: The veteran then apparently had no further cardiac sequelae, according to available records, for several decades. It should be noted that if myocarditis and pericarditis have significant clinical sequelae, that they will appear immediately. A 1985 claim shows no mention of any sort of ardiorespiratory issues. The veteran began to have symptoms of chest pain on exertion in the early 2000s, consistent with CAD [(coronary artery disease)]. His echos, starting in 2000, were normal with EF [(ejection fraction)] of 58% with good LV function [(left ventricle)]. This effectively rules out any significant sequelae of myocarditis, which should show global hypokinesis or similar findings soon after the initial viral illness on echo. Stress tests and echos were normal until 2003, when ischemic findings began to appear. These findings are consistent with CAD, not myocarditis. The veteran continued to have issues with CAD, leading to stent placements and other procedures. As the service[-]connected conditions were never definitively proven (by biopsy or autopsy) and never appeared clinically in the form of significant residuals, it is less likely as not that the service[-]connected conditions played any role at all in producing or materially contributing to his death, which was actually due to pneumonia, which is not related to the service[-]connected conditions, either. Additionally, there is no evidence that these conditions lent assistance, or aided in the production of death, nor did they combine to cause death. In its September 2016 decision, the Board, in relevant part, denied the appellant's claim for service connection for the cause of the Veteran's death. In its analysis, the Board afforded "great probative weight" to the March 2014 medical opinion. The Board found that the examiner had reviewed the medical records, that her opinion was based on accurate facts, and that the opinion was supported by adequate rationale. In determining that the weight of the evidence demonstrated that the Veteran's death was "not directly or proximately related to his service-connected disability," the Board reasoned: The evidence shows that, in many years leading to the [v]eteran's death, the [v]eteran was not treated for or diagnosed with pericarditis or myocarditis. On the contrary, these conditions were found to be absent on postservice examination. Thus the evidence does not show that the [v]eteran's viral infection with pericarditis and myocarditis caused or contributed toward his death. Despite this finding however, the Board determined that an increased disability rating was warranted for the Veteran's service-connected viral infection with pericarditis and myocarditis. In considering the evidence of the Veteran's relevant symptoms, the Board concluded: [T]he Board notes the [February 2009] VA examiner's finding of 3-5 estimated METs level resulting in weekly angina and dyspnea on moderate exertion. . . .The Board notes that the VA examiner did not report that these symptoms were attributable to the [v]eteran's service-connected viral infection with pericarditis and myocarditis and rather diagnosed the [v]eteran with coronary artery disease [for] which the [v]eteran is not service-connected. However, the examiner did not specifically state that these symptoms were attributable to the coronary artery disease. Moreover, the medical evidence in the instant case does not otherwise clearly differentiate between the symptomatology associated with the [v]eteran's service-connected viral infection with pericarditis and myocarditis and his nonservice-connected coronary artery disease with regard to the METs finding. As such, for purposes of this decision, the Board will attribute the METs finding in the VA examination report to the [v]eteran's viral infection with pericarditis and myocarditis. The Court's August 2017 Memorandum decision determined that the Board provided an inadequate statement of reasons or bases for denying service connection for the cause of the Veteran's death. In this regard, the Board's analysis of the evidence was found to be "internally inconsistent," thus frustrating judicial review. Specifically, in considering the appellant's increased rating claim, the Board attributed the Veteran's February 2009 diagnostic symptoms to residuals of his pericarditis and myocarditis, but when discussing her claim for service connection for the cause of the Veteran's death, it found that pericarditis or myocarditis conditions were "absent" post-service. The Court indicated that the Board's analysis in this respect was "confusing, at best." Upon review, the Board finds that the Veteran's CAD and associated symptoms have been rated as part of his service-connected residuals of a viral infection with pericarditis and myocarditis. For example, in a September 2000 VA examination, the examiner indicated that there were "No signs and symptoms or past medical history of pericanditis, or Myocarditis." Instead, the Veteran was diagnosed with left ventricular hypertrophy possibly related to hypertension. Nonetheless, the RO granted a higher 30 percent evaluation based on the METs level during the September 2000 examination report. Further, the medical evidence in the instant case does not otherwise clearly differentiate between the symptomatology associated with the Veteran's service-connected viral infection with pericarditis and myocarditis and his CAD with regard to MET levels. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In other words, since it is impossible to distinguish the residuals of the viral infection from the Veteran's coronary artery disease, the cause of death will be attributable to the service-connected condition. For these reasons, the Board finds that the Veteran's residuals of a viral infection with pericarditis and myocarditis include consideration of symptoms associated with CAD. As noted above, the Veteran's death certificate listed hypertensive and atherosclerotic cardiovascular disease as a contributory cause of death. Notably, atherosclerotic cardiovascular disease is defined as hardening of the arteries (i. e., CAD). For these reasons, the Board finds that the Veteran's residuals of a viral infection with pericarditis and myocarditis, now including consideration of CAD, substantially or materially contributed to cause the Veteran's death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). Accordingly, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs