Citation Nr: 20003979 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 08-20 861 DATE: January 16, 2020 ORDER Service connection for the cause of the Veteran’s death is granted. FINDING OF FACT The Veteran’s hypertension was the result of in-service Agent Orange exposure, and was a contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1116(f), 1310, 5107; 38 C.F.R. §§ 3.312, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 1965 to March 1969. His awards and decorations include a Purple Heart and a Navy Commendation Medal with a Combat “V” device. He died in October 1989. The appellant is his widow. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office. In July 2009, the appellant and her son testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. In February 2010, the Board reopened and remanded the appellant’s claim for service connection for the cause of the Veteran’s death. In January 2014, the Board denied the claim, and the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 Memorandum Decision, the Court remanded the case to the Board. In September 2015, the Board again denied the matter on appeal, and the appellant again appealed to the Court. In November 2018, the appellant, through her attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In a November 2018 Order, the Court granted the motion and remanded the case to the Board. The Board again remanded the appeal in May 2019. Legal Criteria When a veteran dies due to a service-connected or compensable disability, the veteran’s surviving spouse, children and parents are entitled to dependency and indemnity compensation. 38 U.S.C. § 1310. The death of a veteran is considered to have been due to a service-connected disability when the evidence establishes that a disability resulting from injury or disease incurred in or aggravated by service was either the principal or contributory cause of death. 38 C.F.R. §§ 3.312(a), 3.303. A disability is considered to be the principal (primary) cause of death when it, 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 disability is considered to be a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that a disability casually shared in producing death; it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, are not held to have contributed to death when such death is primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). However, 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). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied, including ischemic heart disease (including, but not limited to, 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). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C. § 1113(b) and 1116 and 38 C.F.R. § 3.303. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Analysis The Veteran’s active duty from July 1965 to March 1969 included service in the Republic of Vietnam. He is therefore presumed to have been exposed to Agent Orange in service. March 1987 VA examination reports note a history of hypertensive cardiovascular disease and kidney disease with malignant nephrosclerosis, as well as “renal failure secondary to hypertension.” The only cause of death listed on the Veteran’s death certificate is “long-standing kidney disease.” The appellant submitted a February 2019 medical evaluation report from a private cardiologist, Dr. J.K., who opined: 1) the Veteran’s hypertension was due to his in-service Agent Orange exposure; and 2) the Veteran’s kidney disease, which resulted in his death, was caused or aggravated by his hypertension. Dr. J.K. noted extensive medical literature documenting hypertension as a primary cause of kidney disease, and cited 1986 and 1987 medical records showing that the Veteran’s longstanding hypertension had already affected his renal function. Dr. J.K. stated that it was clear that the Veteran’s renal impairment was due to longstanding microvascular damage caused by his hypertension. In August 2019, a VA physician reviewed the record and agreed that the Veteran’s hypertension/hypertensive cardiovascular disease was the result of his in-service exposure to Agent Orange, based on the same medical authority and reasoning that Dr. J.K. provided. However, the VA physician opined that it was unlikely that hypertension/hypertensive cardiovascular disease caused or aggravated the Veteran’s kidney disease, or otherwise caused or contributed to his death. In explaining his opinion, the physician stated that there was insufficient evidence in the body of record to determine that hypertension or hypertensive cardiovascular disease caused or contributed to the Veteran’s death. Specifically, there were no terminal medical records showing this, including physician statements, laboratory results, kidney results, or cardiovascular results. The VA physician further explained that the Veteran’s renal disease was characterized by immunoglobulin G linear deposition and hematuria, and that this pattern was not seen with hypertension/hypertensive cardiovascular disease. Considering the record as a whole—to specifically include the above medical opinions and March 1987 VA medical records noting kidney disease as secondary to longstanding hypertension—the Board finds the evidence to be at least in relative equipoise on the question of whether a service-related disability caused or contributed to the Veteran’s death. Resolving reasonable doubt in the appellant’s favor, the Board finds that the Veteran’s hypertension was the result of his in-service Agent Orange exposure and contributed to his kidney disease, which resulted in his death. Accordingly, service connection for the cause of the Veteran’s death must be granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Andrew Mack, 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.