Citation Nr: 21061954 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-14 495 DATE: October 5, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died in February 2006. The causes of death listed on the death certificate were occlusive coronary atherosclerosis and systemic hypertension. 2. The evidence of record establishes that the Veteran's occlusive coronary atherosclerosis and hypertension is causally related to his residuals of shrapnel wounds incurred during active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been satisfied. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1950 to June 1953. The Veteran died in February 2006, and the appellant is the Veteran's surviving spouse. 38 U.S.C. § 101(3). Among the Veteran's many awards and decorations, the Veteran was in receipt of the Bronze Star Medal, the Korean Service Medal, and the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2006 by a Department of Veterans Affairs (VA) Regional Office (RO). This case was initially brought before the Board in April 2019, at which time the Board remanded the issue on appeal for further development. The matter was subsequently returned to the Board. In a September 2019 decision, the Board denied entitlement to service connection for the cause of the Veteran's death. Thereafter, the Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Remand (JMR) which vacated the Board's September 2019 decision and remanded the matter for readjudication consistent with the terms of the JMR. 1. Entitlement to service connection for the cause of the Veteran's death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, to establish service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 , 133637 (Fed. Cir. 2006). The Veteran's death certificate reflects that the cause of death was occlusive coronary atherosclerosis due to or as a consequence of systemic hypertension. No other significant conditions contributing to death were listed. Service connection was not in effect for the occlusive coronary atherosclerosis or systemic hypertension at the time of the Veteran's death. Nevertheless, service connection may be warranted for the cause of his death if any disorder or disease process leading to, or contributing to, his death was related to his active military service. At the time of this death, the Veteran was service connected for residuals, shell fragment wounds of the right shoulder and neck, rated 30 percent disabling; residuals, shell fragment wounds of the right thigh, knee and leg region, rated 30 percent disabling, and wound of the right foot, rated as 10 percent disabling. In this case, the appellant's primary contention is that the Veteran's cause of death was due to his service-connected residuals of shell fragment wounds. Specifically, she contends that his service-connected residual shell fragment wounds caused arterial damage and caused elevated levels of lead in his blood along with the retained shrapnel debris, which in turn, caused his hypertension. VA obtained a medical opinion concerning the etiology of the Veteran's hypertension in April 2019. The examiner determined that it was less likely than not that the Veteran's shrapnel wounds caused or aggravated his hypertension, reasoning the body of record does not contain evidence that showed the Veteran had an abnormal blood lead level or lead poisoning. The examiner also stated that the Veteran's shrapnel fragments were all positioned outside of any joints and that these specific ballistic fragments were considered low risk. Finally, the examiner noted that lead poisoning's effect on blood pressure is known to be "marginal" based on a study which suggests only a weak association between blood pressure and blood lead. There is no evidence that the April 2019 examiner was not competent or credible. However, the Board finds that an insufficient rationale was provided for the opinion. While the April 2019 VA examiner addressed the appellant's assertion that the shrapnel debris remaining in the Veteran's body caused elevated levels of lead in his blood, he did not address or consider the favorable articles and medical literature submitted on the appellant's behalf by her representative in the March 2019 Informal Hearing Presentation (IHP) as specifically requested by the Board in the April 2019 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the April 2019 opinion is entitled to minimal weight. In support of her appeal, in August 2021 the appellant submitted a private medical opinion from Dr. P.C. The physician noted a thorough review of the Veteran's medical records, medical opinions, layperson statements and the pertinent medical literature on the subject. She opined that the Veteran's retained shrapnel fragments had, at least as likely as not, resulted in chronic systemic lead toxicity that resulted in the Veteran's hypertension and coronary atherosclerosis, which ultimately led to his death. The physician further opined that although the Veteran never had his blood lead levels tested, he had clear documentation of both signs and symptoms of chronic lead toxicity throughout his medical record both during service and after separation, including unexplained neuropathy, anemia, renal failure, and idiopathic gastrointestinal symptoms. Citing to medical literature, the examiner explained that retained shrapnel can lead to systemic toxicity many years after the initial incident and that even mildly elevated lead levels can, in turn, lead to the exact ailments that plagued the Veteran in the years prior to his death due to coronary atherosclerosis. While the physician acknowledged that a significant period of time passed between the Veteran's separation and a record of his diagnosis of hypertension in 1989, the physician noted that the treatment records stated that he had a ten year history of hypertension and explained that the Veteran exhibited symptoms during service that were indicative of elevated lead levels in service and throughout his post service treatment records that indicate that the cause of his heart conditions was present during active duty. In conclusion, the physician again opined that based on the Veteran's medical history and medical research, it was at least as likely as not that the diagnosed hypertension and coronary atherosclerosis was causally related to the Veteran's service. The private physician further cited to additional relevant medical literature, including a 2018 meta-analysis of 37 studies involving almost 350,000 patients that found there was a strong positive association between lead exposure and the development of cardiovascular atherosclerosis and an additional study showing that low-level lead exposure" is an important, but largely overlooked, risk factor for cardiovascular disease mortality in the United States. The examiner stated that although the Veteran had other coronary artery disease risk factors, including diabetes and a tobacco use history, his lead exposure should not be discounted. Dr. P.C.'s August 2021 opinion provides a fully articulated conclusion adequately supported by medical rationale and citations to the claims file. In this regard, the doctor related the Veteran's hypertension, the principal cause of death listed on the death certificate, with the Veteran's shrapnel injuries. He supported his conclusion with citation to the Veteran's service treatment records, in which he opined that the numerous complaints for abdominal pain during service is indicative that his body was reacting to the shrapnel that remained in his body causing potentially elevated levels of lead in the blood during service. For these reasons, the Board finds the August 2021 opinion, which weighs in favor of finding that the Veteran's cause of death is related to his military service, to be the most probative evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that it is at least as likely as not that the noted coronary atherosclerosis and hypertension are casually related to the Veteran's service. In particular, the private physician's opinion clearly linked the diagnosis of occlusive coronary atherosclerosis and systemic hypertension to the Veteran's shrapnel injuries in service and supported that opinion with a well-reasoned rationale. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran's coronary atherosclerosis and hypertension were caused by his service-connected residuals of shell fragment wounds. Moreover, coronary atherosclerosis and hypertension are listed as the primary cause of death on the Veteran's death certificate. Therefore, 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, and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.