Citation Nr: 21066638 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-14 501 DATE: November 1, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT The Veteran's posttraumatic stress disorder (PTSD) caused or aggravated his resistant hypertension, which was among the principal causes 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. §§ 1310, 1312, 1318; 38 C.F.R. §§ 3.22, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 1967 to July 1969, to include service in the Republic of Vietnam (Vietnam). Regretfully, he passed away in June 2014. The Appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on her appeal from a November 2014 Department of Veterans' Affairs (VA) Regional Office (RO) rating decision that denied the Appellant service connection for the cause of the Veteran's death. A veteran's death is considered as being due to a service-connected disability when the evidence establishes that his/her service-connected disability was either the principal or a contributory cause of death, 38 C.F.R. § 3.312(b), (c), based on the exercise of sound judgment, without recourse to speculation, and after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including autopsy reports, 38 C.F.R. § 3.312(a). A service-connected disability is deemed the principal, i.e., the primary cause of death when the 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). In contrast, a contributory cause of death is inherently one that is not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to be deemed a contributory cause of the veteran's death, it must be shown that it contributed substantially or materially, combined to cause death, and aided or lent assistance to the production of death. Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Correspondingly, the cause-of-death analysis is two-pronged. First, it must be established that the disability at issue is a principal or contributory cause of the veteran's death. Then, it must be established that this disability also qualifies as service connected. If no disability that the veteran had suffered meets both prongs, then the cause-of-death claim is denied. Here, at the time of his death, the Veteran was service connected for PTSD, diabetes mellitus, type II (diabetes), and coronary artery disease (CAD). In July 2014, the Appellant filed the Veteran's death certificate showing that he passed away from cerebral hematoma, cerebellar hemorrhage, hypertension, and anticoagulant therapy. The Appellant accompanied the Veteran's death certificate by her lay statement noting that, after the Veteran had been diagnosed with hypertension and CAD, he developed atrial fibrillation (AF), which required his treatment with Warfarin, an anticoagulant consistent with the therapy treatment noted on the Veteran's death certificate. Therefore, the Appellant opined that the Veteran's death was causally related to his service-connected CAD. In November 2014, the Appellant was afforded a VA examination of the claims file. The November 2014 VA examiner opined that it was less likely than not . . . that the [V]eteran's [AF] was caused by [his] service[-]connected [CAD] or treatment for CAD, [or] that it was aggravated beyond the natural progression [because AF] is not considered an illness that normally follows the development of CAD or [a coronary artery bypass grafting, i.e., a surgery that the Veteran had undergone]. In certain cases, [CAD could lead to myocardial infarction (MI), which, in turn, could] lead[] to [AF. However,] since the [V]eteran [was] not known to have suffered an MI, this scenario [was] highly unlikely in this particular case. The Board notes its concern with the inconsistency between the November 2014 VA examiner's opinion and publicly available medical information. See, e.g., https://medicine.umich.edu/dept/cardiac-surgery/patient-information/adult-cardiac-surgery/adult-conditions-treatments/coronary-artery-disease-cad ("Over time, CAD can weaken the heart muscle and lead to heart failure and arrhythmias," e.g. AF). In addition, the November 2014 VA examiner opined that the Veteran's hypertension was not caused by or aggravated by his service-connected CAD or diabetes, clarifying as follows: [Hypertension] is not considered an illness that normally follows . . . CAD or [diabetes]. In certain cases of diabetes . . . , due to development of diabetic nephropathy complication[s, a patient could develop hypertension]. Since the [V]eteran [was] not known to have suffered from diabetic nephropathy, this scenario [was] highly unlikely in this particular case. Finally, the November 2014 VA examiner pointed out that, unlike Warfarin, i.e., the medication prescribed to treat the Veteran's AF, the medications prescribed to treat the Veteran's service-connected CAD, diabetes, and PTSD were not "known . . . to cause any debilitating effects or general impairment of health, or lead to a hypertensive or coagulopathic state." In November 2014, the RO issued a rating decision denying the Appellant's claim for service connection for the cause of the Veteran's death. In April 2015, she filed a Notice of Disagreement (NOD) challenging the November 2014 rating decision. The Appellant accompanied her NOD by a National Academy of Sciences (NAS) Institute of Medicine (IOM) report, "Veterans and Agent Orange: Update 2012" (IOM Update). The IOM Update indicated that NAS recognized "suggestive" evidence of an association between herbicide exposure and a cerebrovascular accident (CVA), i.e., a condition that incorporates cerebellar hemorrhage, which was one of the principal causes of the Veteran's death. Since the Veteran's service included service on the landmass of Vietnam, the Appellant's submission of the IOM Update indicated her position that the Veteran's cerebellar hemorrhage was caused by his presumptive exposure to tactical herbicides in Vietnam. In September 2015, the November 2014 VA examiner rendered an addendum opinion. The VA examiner acknowledged the IOM Update but pointed out that none of the principal causes of the Veteran's death, i.e., cerebellar hemorrhage, hypertension, and coagulopathic state, could have been deemed caused by his presumptive exposure to herbicides in light of the expressly limited list of § 3.309(e) disabilities that were amenable to presumptive service connection. In March 2016, based on the addendum opinion rendered by the November 2014 VA examiner, the RO issued a Statement of the Case (SOC) continuing denial of service connection for the cause of the Veteran's death. In March 2016, the Appellant filed a Substantive Appeal and requested an in-person Board hearing. In August 2019, she withdrew her request for an in-person Board hearing. In December 2019, an Acting Veterans Law Judge (AVLJ) issued a Board decision finding that the November 2014 VA examiner's September 2015 addendum opinion was insufficient because the VA examiner addressed the IOM Update in a single sentence. Therefore, the AVLJ remanded the Appellant's claim for another addendum opinion, stating that the new opinion should be more detailed. In January 2020, a VA examiner, other than the VA examiner who rendered the November 2014 opinion and September 2015 addendum opinion, strived to render the requested opinion. The January 2020 VA examiner found that it was less likely than not that the Veteran's hypertension or cerebellar hemorrhage was related to service because, in the January 2020 VA examiner's opinion, the IOM Update qualified only as "limited and suggestive evidence," rather than "sufficient evidence." In other words, instead of providing his expert medical opinion, the January 2020 VA examiner analyzed the language of the IOM Update in order to assign the IOM Update an evidentiary value for the purposes of this litigation. However, the task of weighing evidence is a legal task, and the act of performing such a task is the province of an adjudicator, not a medical expert. Accordingly, upon finding the opinion rendered by the January 2020 VA examiner inapposite to the inquiry at hand and the opinions of the November 2014 VA examiner inconsistent with the publicly available medical information that had not been considered by the November 2014 VA examiner, the Board anticipated to remand this matter once again in May 2020 for a proper legal opinion. However, as detailed infra, new developments have rendered such a remand superfluous. Specifically, in June 2020, the Appellant renewed her request for a Board hearing, albeit this time requesting a videoconference hearing. In March 2021, the Veteran filed a report executed by Dr. J.K., a private cardiologist who: (a) reviewed the claims file in its entirety, to include the opinions rendered by the January 2020 and November 2014 VA examiners; and (b) rendered his opinion in July 2020. In October 2021, the Appellant again withdrew her request for a Board hearing. Thus, the sole inquiry before the Board is whether a remand of this matter is still required, or a full adjudication of this matter is feasible on the record accrued, to include based on the opinion rendered by Dr. J.K. Dr. J.K.'s lengthy opinion could be reduced to two key points. On the one hand, Dr. J.K.'s reviews of medical studies led him to believe that there was a causal connection between CVAs experienced by veterans and veterans' exposure to tactical herbicides in service. In other words, Dr. J.K. reached a general conclusion substantively indistinguishable from the findings in the IOM Update. However, while the Board acknowledges the IOM Update findings and Dr. J.K.'s opinion, the Board is mindful that such conclusions were reached based on generalizations, rather than the facts specific to the Veteran: since the Veteran's exposure to tactical herbicides was established presumptive rather than directly, and the record lacks evidence supporting a direct finding of exposure. Therefore, the Board declines at this juncture to find that such a presumptive service connection is warranted, given the obvious inconsistency between such a conclusion and the lack of references to CVA in 38 C.F.R. § 3.309(e). Moreover, such an analysis is not warranted for the purposes of adjudicating the Appellant's claim. This is so because, upon examination of the Veteran's medical records, especially the records related to the Veteran's PTSD and hypertension, and upon correlating his examination to the academic studies about the correlation between PTSD and hypertension, Dr. J.K. also reached a qualitatively different conclusion. Specifically, Dr. J.K. found that the Veteran's hypertension was at least as likely as not caused or aggravated by his service-connected PTSD. Notably, the findings of the January 2020 and November 2014 VA examiners are wholly inapposite to this line of Dr. J.K.'s findings. In addition, the record before the Board lacks any medical opinion contradicting Dr. J.K.'s conclusions. Simply put, this line of Dr. J.K.'s findings is unopposed. Moreover, Dr. J.K.'s opinion is extremely thorough, well detailed, and expressly tailored to the Veteran's medical history. Accordingly, the Board finds Dr. J.K.'s opinion competent, credible, and highly probative. Therefore, without reaching the issue of whether the Veteran's CAD was a contributory cause of the Veteran's death, the Board finds that the Veteran's resistant hypertension, i.e., one of the primary causes of his death, warrants service connection as secondary to the Veteran's PTSD. Accordingly, the Appellant's claim for service connection for the cause of the Veteran's death is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, Associate 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.