Citation Nr: 20037559 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-07 387 DATE: June 2, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT A disability of service origin, specifically hypertension, is shown to have been causally or etiologically related to, or to have played any role in producing or hastening, the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1112, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to May 1970. He died in September 2011, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision. The appellant testified before the undersigned Veterans Law Judge at a Board hearing at the Agency of Original Jurisdiction (AOJ) in April 2015. In October 2015, the Board referred the appellant’s case for a Department of Veterans Affairs (VA) Veterans Health Administration (VHA) medical expert opinion. In September 2017, a clarification opinion was requested. On March 17, 2020 the appellant was provided with a copy of the medical opinions and given 60 days to respond. 1. Entitlement to service connection for the cause of the Veteran's death The appellant, as the Veteran’s surviving spouse, seeks service connection for the cause of the Veteran’s death. The Veteran’s September 2011 death certificate notes that the immediate cause of death was myocardial infarction, due to or as a consequence of hypertensive heart disease, due to or as a consequence of hypertension. Dependency and Indemnity Compensation (DIC) is awarded to a Veteran’s surviving spouse for death resulting from a service-connected disability. 38 U.S.C. § 1310. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability incurred in or aggravated by service either caused death or contributed substantially or materially to cause 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 that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). Certain chronic diseases, such as hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In addition, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as 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), would be service-connected even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Since the Veteran had Vietnam service, he is presumed to have been exposed to an herbicide in service. See 38 C.F.R. § 3.307(a)(6). Having considered the medical evidence of record, the Board finds that the Veteran’s hypertension, which was found to have substantially contributed to his death, was at least as likely as not related to his military service. As noted, the Veteran’s September 2011 death certificate notes that the immediate cause of death was myocardial infarction, due to or as a consequence of hypertensive heart disease, due to or as a consequence of hypertension. A November 2011 autopsy pathology report indicates that the autopsy showed acute congestive heart failure due to asymmetric hypertrophic cardiomyopathy as the immediate cause of death, the common causes of such being heart valve defects and hypertension. The pathologist reported that the Veteran had hypertension. The final conclusion was an immediate cause of death of acute congestive heart failure, due to asymmetric hypertrophic cardiomyopathy, due to hypertension, with a contributing cause of death of moderate coronary arteriosclerosis and included findings of mild fatty metamorphosis of the liver. A VA examiner in July 2012 reported that the Veteran had moderate coronary artery disease, confirmed at autopsy, but no known clinical ischemic heart disease. He reported that the Veteran’s death certificate listed myocardial infarction as the primary cause of death, but such was not confirmed at autopsy, as there were no signs of myocardial infarction and no severe coronary involvement or acute coronary thrombus, and instead asymmetric cardiac hypertrophy due to hypertensive heart disease was found. He reported that such caused acute heart failure and sudden cardiac death. In October 2015, the Board requested a VHA medical expert opinion on whether the Veteran had ischemic heart disease, and if so, whether it caused or contributed substantially to his death. If not, then the medical expert was requested to answer whether the Veteran’s reported immediate cause of death (acute congestive heart failure due to asymmetric hypertrophic cardiomyopathy due to hypertension) and reported contributing cause of death (moderate coronary arteriosclerosis) were due to in-service herbicide exposure. In addition, the examiner was requested to answer whether the Veteran’s hypertension or moderate coronary arteriosclerosis were manifest to a compensable degree within one year of discharge, by May 1971. An April 2016 VHA opinion was provided that based on the review of the records, the Veteran did not have ischemic heart disease based on the 2010 stress test during which he was reported not to have myocardial ischemia. It was noted that he did have coronary atherosclerosis based on his autopsy findings, however all coronary atherosclerosis does not manifest as ischemic heart disease. The examiner determined that ischemic heart disease did not cause or contribute substantially or materially to the cause of the Veteran’s death. The examiner also found that the Veteran’s cause of death (acute congestive failure due to asymmetric hypertrophic cardiomyopathy due to hypertension) and reported contributing cause of death (moderate coronary arteriosclerosis) were not due to his in-service herbicide exposure. Finally, it was determined that given the findings of the stress test in 2010, which did not report evidence of myocardial infarction, it was not likely that in 1972 the Veteran had moderate atherosclerosis to a compensable degree. However, the examiner found that the Veteran did have exercise induced hypertension in 2010, and it was as likely as not that he might have had hypertension in 1972, i.e., within one year of discharge and that hypertension might remain clinically silent without end organ damage for a long period of time. In September 2017, the Board asked for a clarification opinion, including citation to specific evidence in the claims file, to be supportive of conclusions with respect to whether the Veteran’ s hypertension or moderate coronary arteriosclerosis were manifest to a compensable degree within one year of discharge from service, by May 1971. The examiner also was also to clarify with citation to medical principles and peer-reviewed medical literature how ischemic and non-ischemic coronary atherosclerosis were diagnosed, given that the regulatory definition of ischemic heart disease included atherosclerotic cardiovascular disease. The VHA examiner provided another medical opinion in March 2020. It was noted that in response to the question, how is ischemic and non-ischemic heart disease diagnosed, stress tests, particularly stress echo and nuclear stress tests could indicate both ischemic and non-ischemic heart disease. If there was regional perfusion defect, but a coronary angiogram did not show obstructive blockage, the clinical diagnosis of non-ischemic heart disease could be made. This implied that there was no epicardial coronary artery disease. Obstructive lesions were defined as 70 percent of greater reduction in diameter of a coronary artery. The term epicardial referred to coronary arteries on the surface of the heart, that were large enough to be treated with balloons or stents. The possible of abnormalities of small arteries embedded within the thickness of the heart muscle existed, and patients with small vessel coronary disease might have this condition, predominantly as a result of abnormal vasomotor function (contraction and relaxation). There were specific tests such coronary flow reserve that could be performed during an invasive heart catherization that could diagnose this condition, however, it was rarely performed. Moreover, the Veteran had no atherosclerosis of his epicardial arteries on autopsy. The examiner cited to a study on the clinical use of stress echocardiography in non-ischemic heart disease from February 2017. In response to the question how obstructive and non-obstructive atherosclerosis was diagnosed, the examiner stated that the presence of coronary atherosclerosis that obstructs the diameter of a coronary artery by 70 percent or more was defined as obstructive, whereas any blockage of less than 70 percent was termed non-obstructive. This was the most customary and accepted definition of coronary angiography. However, there were newer invasive tests like fractional flow reserve that could help determine the functional severity of a blockage when its anatomic severity was indeterminate. However, myocardial infarction with nonobstructive coronary arteries was a clinical syndrome that encompassed a subgroup of heterogenous patients who presented with myocardial infarction yet did not have any significant coronary artery obstruction on angiogram. The Veteran in this case could not be ascribed to atherosclerosis, and more due to spasm, embolism, stress, etc. The examiner further determined that based on review of literature on PubMed (US National Library of Medicine National Institutes of Health) consensus statement on herbicide impact of human health did not indicate a clear association to cardiomyopathy or coronary atherosclerosis. Last, it was noted that it was the examiner’s professional opinion that in view of the negative stress test in 2010 the Veteran’s moderate coronary atherosclerosis was [sic] at least as likely as not (less than 50 percent probability) manifest to a compensable degree within one year of discharge from service in May 1971. (Note, that the examiner appeared to have meant not at least as likely as not based on the rest of the opinion). The examiner also found, however, that it was the examiner’s professional opinion that the Veteran’s hypertension was at least as likely as not (50 percent probability or higher) manifest to a compensable degree within one year of his discharge from service in May 1971. The opinion considered the evidence for exercise induced hypertension documented in the Veteran’s medical records. Based on the evidence of record, service connection is warranted for hypertension, as there are two medical opinions of record finding that the Veteran’s hypertension manifest to a compensable degree within one year of separation from service. The rationale for the opinion in April 2016 was that exercise induced hypertension was diagnosed in 2010, and it was as likely as not that he might have had hypertension in 1972, i.e., within one year of discharge as hypertension might remain clinically silent without end organ damage for a long period of time. The same examiner confirmed this opinion in March 2020 considering evidence for exercise induced hypertension documented in the Veteran’s medical records. There are no other medical opinions of record addressing the Veteran’s hypertension; thus, resolving all doubt in the Veteran’s favor, the Veteran’s hypertension at least as likely as not manifest within one year of the Veteran’s separation from service. While there are conflicting and complicated medical findings of record regarding whether the Veteran had ischemic heart disease as defined by VA regulation that contributed to his death, there is no conflict as to whether or not the Veteran’s hypertension substantially contributed to his death. As noted, the Veteran’s September 2011 death certificate states that the immediate cause of death was myocardial infarction, due to or as a consequence of hypertensive heart disease, due to or as a consequence of hypertension. The November 2011 autopsy pathology report further found that common causes of the Veteran’s immediate cause of death from acute congestive heart failure due to asymmetric hypertrophic cardiomyopathy included hypertension and that the Veteran had hypertension. The final conclusion was an immediate cause of death of acute congestive heart failure, due to asymmetric hypertrophic cardiomyopathy, due to hypertension, with a contributing cause of death of moderate coronary arteriosclerosis and included findings of mild fatty metamorphosis of the liver. Based on a review of the record, the medical evidence is relatively equally balanced as to whether the Veteran’s hypertension, which substantially contributed to his death, was related to his military service. As the evidence in this case is in equipoise, the benefit of the doubt doctrine applies. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for the cause of the Veteran’s death is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.