Citation Nr: 20000045 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 19-15 984 DATE: January 2, 2020 ORDER Entitlement to service connection for the cause of Veteran's death is granted, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s military service from August 1969 to July 1971 included a tour of duty in Vietnam, where he is presumed to have been exposed to herbicide agents. 2. The Veteran died in May 2018; the immediate cause of his death was hemorrhagic stroke, due to (or as a consequence of) hypertension. 3. Competent medical evidence relates the Veteran’s hypertension and subsequent hemorrhagic stroke to his exposure to herbicide agents in service. CONCLUSION OF LAW Service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is the surviving spouse of a Veteran who served on active duty from August 1969 to July 1971, and also had additional National Guard service. He died in May 2018. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision. In September 2019 (following June and August 2019 extension requests by the appellant’s attorney), the undersigned granted the appellant an extension of time (until November 26, 2019) to submit additional evidence; that time period lapsed; additional argument and evidence was received, including an October 2019 private medical opinion (with a waiver of Regional Office initial review). Service connection for the cause of the Veteran's death is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include brain hemorrhage and hypertension) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for brain hemorrhage and hypertension). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), a nexus to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Veterans who served in the Republic of Vietnam during the Vietnam era or who served at or near the Korean DMZ are presumed to have been exposed to herbicides/Agent Orange. If a Veteran was exposed to an herbicide agent (Agent Orange) during active military, naval, or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Brain hemorrhage, stroke, and hypertension are not among the enumerated diseases. Notwithstanding the aforementioned provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the veteran’s death; combined to cause death; aided or lent assistance to the production of death. It is not sufficient to show that a service-connected disability casually shared in the producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant contends that the Veteran’s hypertension and death-causing hemorrhagic stroke were related to his exposure to herbicide agents in Vietnam. See October 2018 statement. [At the time of his death, the Veteran had not established service connection for any disability.] The Veteran’s service treatment records (STRs) do not show any complaints, treatment, or diagnosis pertaining to hypertension or stroke. On periodic National Guard examinations in February 1982, May 1989, July 1994, October 1999, and September 2004, his vascular system was normal on clinical evaluation, and he denied history of high or low blood pressure. [An October 2004 medical letter notes that the Veteran had asthma, but is silent as to hypertension.] In 2006, the Veteran began treatment (with medication) for hypertension. See October 2018 private hypertension DBQ; see also October 2019 private medical opinion. He was treated for hypertension until his death. See June 3, 2010 VA treatment record; see also August 31, 2016 private treatment record. In 2015, the Veteran sustained a left middle cerebral artery stroke; subsequent medical treatment records are conflicting as to whether there were residual effects. See August 31, 2016 private treatment record (noting right arm proprioception); see also April 27, 2018 treatment record (noting no residual effects). In late-April 2018, the Veteran sustained a hemorrhagic stroke at the left basal ganglia region extending into the lateral ventricle. CT scans showed it was “likely hypertensive.” See April 26, 2018 private treatment record. He underwent microvascular draining of the intraparenchymal hemorrhage. Approximately one week later, he passed away; his death certificate lists the immediate cause of death as hemorrhagic stroke due to (or as a consequence of) hypertension. In an October 2018 statement, the appellant reported that upon return from Vietnam, the Veteran had hearing loss, skin rash, and dental problems, but not hypertension. She reported that for much of his life he was physically fit, active, and did not smoke or drink; she also stated that he did not have a family history of stroke. She reported that the Veteran sustained a “ministroke” at work in 2010, and that medical imaging showed “evidence of 5 or 6 previous ministrokes.” [Medical records pertaining to those events are not in the record.] She noted the April 2018 stroke and explained that despite two emergency surgeries, the Veteran never regained consciousness and passed away one week later. She opined that yjr Veteran’s hypertension and fatal stroke were related to his exposure to herbicide agents in Vietnam. In support of her October 2018 statement, the appellant submitted several internet medical journal articles/summaries. The articles note that while VA has not included hypertension as a presumptive disease associated with herbicide exposure, medical studies over the past decade have noted that exposure to herbicides is “significantly associated” with the risk of hypertension, and that there is a “statistically significant overall increase in stroke associated with exposure to chemical in Agent Orange.” In October 2019 argument, the appellant’s attorney noted that the National Academies of Sciences, Engineering, and Medicine (NASEM), in the Veterans and Agent Orange Update: Update 11 (2018) (VAO Update), acknowledged “sufficient evidence” of an association between exposure to herbicide agents and hypertension. He argued that although hypertension has not been listed as a presumptive disease associated with herbicide agents, the VAO Update findings along with the private opinion (below) provide sufficient evidence to establish service connection for the cause of the Veteran’s death on a direct basis. In the opinion received in October 2019, provider opined that the Veteran’s “in service exposure to herbicides at least as likely as not caused his hypertension and subsequent hemorrhagic stroke that led to his death.” He noted the VAO Update and explained (with citation to medical treatises) that rats and mice exposed to the herbicide agent TCDD (a main component of Agent Orange) developed increased blood pressure (hypertension) and heart rate, as well as elevated markers of oxidative stress. He explained that the studies suggest that exposure to TCDD may inhibit blood lipid breakdown, induce an atherogenesis, and predispose to hypertension. He further explained that hypertension is broadly recognized as the most important risk factor for both ischemic and hemorrhagic strokes. He noted that medical literature “points to hypertension as a predisposing factor for cerebrovascular accidents that are larger and more severe than those occurring in normotensive patients.” He explained in detail the 7 different anatomical mechanisms through which hypertension can lead to the development of strokes. Applying the medical literature cited to the evidence in the instant case, the provider opined, “[The Veteran’s] in-service exposure to herbicides, including Agent Orange, at least as likely as not directly caused his hypertension, which in turn caused his fatal hemorrhagic stroke, or substantially contributed to it.” He noted that the Veteran was “a healthy man with no history of tobacco or alcohol abuse.” He explained (with citation to medical literature) that apart from his history of herbicide exposure, the Veteran’s only risk factor was history of hyperlipidemia, which has also been linked to Dioxin exposure. The Veteran began treatment for hypertension in 2006 and despite multiple medication regimes for blood pressure control, many of his readings from 2006 to 2015 were above 130/80, showing his “hypertension was neither benign nor controlled.” He noted that in 2018, the year of his death, the Veteran continued to have elevated blood pressure readings, and opined that, “As a result of his persistent high blood pressure, he developed a stroke an[d] ultimately died in 5/2018.” As noted above and acknowledged by the appellant’s attorney, hypertension is not an enumerated disease associated with herbicide exposure; the presumption of service connection under 38 C.F.R. § 3.309(e) does not apply to such disease. And as hypertension and stroke were not manifested within a year following service, and continuity of symptomatology is not shown, service connection on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a)), or based on continuity under 38 C.F.R. § 3.303(b) is also not warranted. What remains to be determined is whether the Veteran’s cause of death is otherwise shown to be etiologically related to his service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board finds the October 2019 private medical opinion to be probative evidence in support of the claim. The October 2019 reviewing cardiologist has specific subject matter expertise (he is a board certified in cardiovascular disease and is a practicing cardiologist). He expressed familiarity with the record and included citations to several specific medical records and more than two dozen medical journals/treatises/studies in support of his opinions. Furthermore, the record does not contain a medical opinion against the claim. Resolving any remaining reasonable doubt in the appellant’s favor as required (see 38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that competent evidence reasonably shows that the Veteran’s hypertension was related to his exposure to herbicide agents in Vietnam, and that the hypertension caused or substantially contributed to his death-causing hemorrhagic stroke. Accordingly, service connection for the cause of the Veteran’s death is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.