Citation Nr: 20073545 Decision Date: 11/17/20 Archive Date: 11/17/20 DOCKET NO. 15-15 954 DATE: November 17, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death for purposes of receiving Dependency and Indemnity Compensation (DIC) is granted. FINDINGS OF FACT 1. The preponderance of the evidence weighs in favor of the Veteran in finding that his coronary artery disease is etiologically related to herbicide agent exposure in service. 2. The evidence when reviewed in total is in equipoise as to whether the Veteran’s cause of death was related to his service-connected coronary artery disease. CONCLUSION OF LAW The criteria for service connection for the cause the Veteran's death have been met. 38 U.S.C. §§ 1110, 1131, 1310, 5103A, 5107; 38 C.F.R. §§ 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to January 1970. He died in January 2009. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied this claim in May 2018. The case was then appealed to the United States Court of Appeals for Veterans Claims (CAVC or Court). In February 2020, CAVC remanded the case back to the Board. The Veteran’s wife testified before the undersigned Veterans Law Judge (VLJ) in April 2018. In the CAVC decision from February 2020, the Court held that the Board must determine whether coronary artery disease (CAD) is service connected. Then, if CAD is service connected, the Court stated that “the Board must then proceed to determine whether CAD was a contributory cause of the Veteran’s death, including whether CAD is an active process affecting a vital organ such that its effects and general impairment of health made it so that the veteran was less capable to resist the effects of aneurysms, causing his death.” DIC benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To grant service connection for the cause of the Veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered 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). The service-connected disability will be considered 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 it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is also a presumption of service connection for certain diseases, including ischemic heart disease (to include CAD), found to be associated with exposure to an herbicide agent such as that used in Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). A veteran who, during active military service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Here, the Board notes that the preponderance of the evidence shows that the Veteran had a disability of CAD at the time of his death. In August 2004, private facility medical records showed that the Veteran was experiencing tortuosity of the descending thoracic aorta, and there may have been ectasia of the aorta as well. In VA medical records from June 2006, the Veteran was noted with a heart murmur that had some characteristics that suggested structural heart disease. VA medical records from September 2005 listed aortic valve disorder on the Veteran’s active problem list. A doctor’s medical note from September 2007 lists aortic stenosis, mild, bypassed echocardiogram as part of the assessment. A VA medical record from October 2008 reveals that the Veteran was noted as having coronary artery disease with congestive heart failure (CHF). Additionally, VA medical records from June 2008 list CAD as an active problem for the Veteran. Records from January 2009 from the Veteran’s interhospital transfer list CAD in his medical history. The Veteran was also service connected for posttraumatic stress disorder (PTSD), residuals of a puncture wound, neuropathy of the right thigh, spondylosis and degenerative disc disease, and psoriasis. In statements submitted in the record and in testimony before the undersigned VLJ, the Veteran’s wife said that two to three months before the Veteran died, he was told he needed vascular studies. She claimed the VA would not approve the Veteran to have the studies done at a local facility. The Veteran’s wife stated that there was no way the Veteran would have been able to make the trip to Cincinnati for the vascular studies because he was barely able to walk or stand. VA medical records from November 2008 show a social worker note that describes the Veteran’s wife expressing concern about the Veteran’s inability to make the trip to Cincinnati without an escort. The vascular studies were not performed. The Veteran died on January [REDACTED], 2009. No autopsy was performed. The death certificate reveals the cause of death as a ruptured abdominal aneurysm. The records from the hospital where the Veteran died showed a past history of myocardial infarction and CAD. The EKGs showed a possible acute myocardial infarction and inferior infarct. However, the emergency room physician stated that the EKG showed it was more fairly clear that the Veteran had big inferior Q waves and probably did not have an acute myocardial infarction. The Veteran’s file was reviewed by VA examiners in October 2011 and July 2016. The physician assistant that was assigned to be the examiner for the October 2011 review stated that CAD and CHF were obviously part of the Veteran’s medical history, but nothing acute was going on with the conditions at the time of the office visit. The examiner also found there was no causal relationship between CAD and CHF with abdominal aneurysm. The VA examiner also stated that the Veteran’s CAD did not cause or substantially contribute to the Veteran’s death. The VA examiner stated that the Veteran’s risk factors for the development of aortic aneurysm were age, gender, obesity, hyperlipidemia, hypertension, tobacco abuse, and atherosclerosis. In the July 2016, the VA examiner stated that CAD must be confirmed by cardiac catherization and that she did not find any objective evidence confirmatory evidence to warrant a CAD diagnosis. The examiner noted that the acute myocardial infarction in the Veteran’s records was not confirmed on definitive testing, and the finding was likely the result of his nonischemic cardiomyopathy. The examiner noted the CAD diagnosis was on the Veteran’s VA medical record problem list. However, since there was no objective evidence of CAD, the examiner found it was less likely as not that it could have contributed to the Veteran’s death. The Veteran’s records were reviewed by a private physician in June 2020. The private physician is board-certified with the American Board of Internal Medicine and a diplomate in cardiovascular disease. The private opinion states that the EKGs that were performed on January [REDACTED], 2009 show a diagnosis for CAD. In addition, the private doctor opined that the EKGs are absolutely diagnostic of an acute myocardial infarct and that the Veteran’s CAD most likely began to develop at least 20 years prior to the event. The private doctor pointed out that there are five ways to diagnose CAD: a very typical anginal pattern, a positive ischemic nuclear stress test, coronary angiography, autopsy, or myocardial infarct, documented by history, EKG, and cardio biomarkers. The private doctor opined that the mortality of any non-coronary surgery in the setting of acute myocardial infarct is so high that it is never done. The private doctor concluded that the cause of death was (1) acute myocardial infarct aggravated by extreme stress and hypovolemic shock caused by aortic aneurysm or (2) a ruptured aneurysm with acute myocardial infarct and CAD as a major contributory cause of death. The private doctor went on to state that CAD and an acute inferior infarct was a at least as likely as not a proximate cause of death or a major contributing factor. The VA and the private opinions in this case are conflicting as to the diagnosis of CAD and whether the Veteran’s death was service connected. The Board finds the VA opinions probative when determining the cause of death of the Veteran and the diagnosis of CAD. The VA opinions were negative as to finding the Veteran’s death being service connected and his diagnosis on CAD. The VA opinion did not find that the Veteran had a diagnosis for CAD due the lack of confirmation by cardiac catherization. The VA opinions point to other health issues as being the factors that led to the Veteran’s death. The Board also finds the Veteran’s private opinion obtained in this case as being probative for the determination that the Veteran’s CAD was service connected and the cause of death. The private doctor included an extensive chronology and thorough reasoning for his conclusions. Although the VA opinion stated that there was only one way to diagnose CAD, the private doctor laid out multiple ways to diagnose CAD with detailed rationale. In addition, the private doctor explained how the Veteran’s CAD was a major contributory cause of death. The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected CAD, a type of ischemic heart disease, was a contributory cause of the Veteran’s death. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the cause of the Veteran’s death is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.