Citation Nr: 21004497 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-65 328 DATE: January 27, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is granted. FINDING OF FACT The weight of the competent and probative evidence of record is in favor of finding that the Veteran's atherosclerotic heart disease began in-service and caused 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. §§ 1110, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to May 1987. He died in October 2014. The appellant is the surviving spouse. This appeal is before the Board of Veterans' Appeals (Board) from a May 2016 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin. In January 2020, the appellant testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. Entitlement to service connection for the cause of the Veteran's death. The appellant claims service connection for the cause of the Veteran's death. Dependency and indemnity compensation (DIC) benefits may be awarded to a veteran's spouse, children, or parents for death resulting from a service-connected or compensable disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disorder caused his or her death, or substantially or materially contributed to it. A service-connected disorder is one that was incurred in or aggravated by active service. Death is deemed to have been caused by a service-connected disability when the evidence establishes that a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is deemed to have been the principal cause of death when it, singly or jointly with another disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c); see Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection for a disability on a direct-incurrent basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. Additionally, certain chronic disabilities, such as arteriosclerosis and hypertension, are presumed to have been incurred in service if such is manifested to a compensable degree within one year of separation from qualifying service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309 (a). Notably, as both arteriosclerosis and hypertension are chronic diseases, service incurrence may be established based upon a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Factual Background At the time of his death in October 2014, service connection was in effect for bilateral hearing loss, degenerative changes of the cervical spine, bilateral tinnitus, benign paroxysmal positional vertigo, and acne vulgaris. During his lifetime, he sought service connection for hypertension; this claim was denied in a final September 2010 rating decision. The Veteran’s death certificate reflects that the immediate cause of death was acute myocardial infarction due to, or as a consequence of arteriosclerotic heart disease (ASHD). The Veteran served on active duty for nearly 22 years. Service treatment records (STRs) reflect that the Veteran was evaluated for chest pain and possible ischemic heart disease in September 1976. Blood pressure (BP) readings at that time were 120/100 (pre-exercise stress test) and 180/90 (post-exercise). The stress test was negative. The Veteran underwent another stress test (the date upon which this study was performed is illegible) which showed ventricular ectopy; a beta blocker was recommended for treatment. Other pertinent BP readings during service are as follows: 118/74; 130/84; 120/100; 128/82; 134/84; 130/88; 160/88; 164/90; 180/92 186/100; 120/90; 130/90 and 150/78. See, e.g., Exercise Stress Test, Jackson Hospital (date illegible); April 1985 Naval Hospital Narrative Summary; September 1982 Chronological Record of Medical Care. A November 1985 Annual Report of Medical Examination reflects a normal clinical evaluation of the heart and a BP reading of 128/82. The April 1987 Report of Medical Examination on separation likewise demonstrated a normal clinical evaluation of the heart and a BP reading of 136/80. In the contemporaneous Report of Medical History, the Veteran denied having had high blood pressure but reported “dizziness” under the Cardiovascular section of the questionnaire. The post-service medical record is sparse. VA treatment records reflect a history of hypertension beginning in 2011. In March 2016, the appellant submitted a private medical opinion in support of her claim. Dr. J.F., M.D., stated he reviewed records sent from VA, as well as the Veteran’s STRs, and opined that it was “at least as likely as not that his hypertension and high blood pressure reading while he was in the Navy was a contributing factor that led to his death.” A May 2016 VA examiner opined that it was less likely than not that the Veteran’s military service caused his hypertension and/or high blood pressure. The examiner reasoned the following: “The veteran did not have a diagnosis of hypertension during service. He had some sporadic readings of elevated blood pressure. This does not constitute a diagnosis of the condition unless it is sustained.” The examiner further opined that it could not be stated without resorting to mere speculation that the Veteran's hypertension and/or high blood pressure contributed to his death substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. The examiner reasoned the following: “Hypertension is known to be a significant contributor to ASHD when it is not properly controlled. There are not enough blood pressure readings in the medical record to determine if the hypertension was well controlled or not.” In a July 2017 letter, Dr. J.F. stated that that the Veteran had been a patient of his for at least five years and that, upon review of his military records, service treatment medical records, and his medical history, “it is at least as likely as not that his heart condition started in-service, is related to service, and was the cause of his death.” Dr. J.F. noted that the Veteran had complained of chest pains and had a stress test performed during service. He explained, “Although the test did not reflect a specific diagnosis, medical literature and the Veteran’s medical history supports that this would have been the onset of his heart condition that ultimately led to the cause of [the Veteran’s death].” In August 2017, the appellant submitted an article from a medical journal which was provided to her by Dr. J.F. in support of his opinion. The June 2014 article from the International Journal of Preventative Medicine was entitled, Veterans Risk of Heart Disease In the United States: A Cohort with 20 Years Follow Up. The study essentially found that Veterans over the age of 50 were at higher risk of cardiovascular disease over the span of 20 years. In October 2017, a VA examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was only an occasional elevation of blood pressure throughout service; that a 1986 stress test showed no evidence for ischemia, although a beta blocker was recommended for a ventricular ectopy; that blood pressure was normal on pre-retirement physical in 1986 and retirement physical in 1987; and that a VA December 2011 VA primary care examination showed no evidence for clinical ischemic heart disease 24 years after retirement. Analysis The appellant’s primary contention is that the Veteran’s hypertension is related to service and ultimately contributed to his death. Alternatively, she asserts that his atherosclerotic heart disease, which is listed as the underlying cause of death on the Veteran’s death certificate, had its onset during active duty service. See Hearing Transcript, generally. Briefly, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of hypertension began during service, manifested to a compensable degree within one year after service discharge, was noted in service with continuity of symptomatology, or is otherwise related to an in-service injury, event, or disease. Indeed, although STRs documented several elevated blood pressure readings, there were no express complaints, treatment, or diagnoses of high blood pressure or hypertension. The Veteran was advised to take a beta blocker in association with a purported arrythmia, not hypertension. His separation examination noted a normal clinical evaluation of the heart; his blood pressure was 136/80; and he expressly denied having had high blood pressure. The first post-service demonstration of hypertension is not shown until 2011, nearly 24 years after separation from service. Moreover, the only probative medical opinions of record are against the claim in this regard. As noted above, the May 2016 and October 2017 VA examiners found that it was less likely than not that the Veteran’s hypertension was incurred in or caused by service. The examiners’ opinions are probative because they are based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In so finding, the Board acknowledges the March 2016 private opinion from Dr. J.F. While the opinion cites to hypertension as a contributing factor to death, it does not directly address etiology. For this reason, it is assigned little to no probative value. Nevertheless, while the Board has concluded that the Veteran’s hypertension is not of service origin, it finds that there is adequate evidentiary support for a grant based on the in-service onset of atherosclerotic heart disease. Specifically, in a July 2017 opinion, the Veteran’s treating private physician, Dr. J.F., unequivocally related the onset of the Veteran’s fatal heart condition (atherosclerotic heart disease) to service. In so finding, Dr. J.F. acknowledged the in-service complaints of chest pain, as well as the stress test which did not reflect a specific diagnosis. Dr. J.F. concluded that the medical literature (i.e., Veterans Risk of Heart Disease In the United States: A Cohort with 20 Years Follow Up, supra) and the Veteran’s medical history supported a finding of in-service onset. The Board finds Dr. J.F.’s opinion to be highly probative as to the issue of nexus because, unlike the October 2017 VA opinion, it was based on personal medical knowledge of the Veteran and his medical history, a review of the STRs, and citation to medical literature. See Nieves-Rodriguez, supra. In short, the Veteran had a current diagnosis of atherosclerotic heart disease; STRs showed complaints of chest pain and other symptoms significant enough to warrant stress testing; and the most competent and probative evidence of record, namely, the July 2017 private opinion, related the onset of his fatal heart disease/condition to service. Furthermore, as previously noted the death certificate lists atherosclerotic heart disease as the underlying cause of the Veteran’s death. 38 C.F.R. § 3.312(b). Thus, resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. See Gilbert, supra. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.