Citation Nr: 21070775 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-31 126 DATE: November 26, 2021 MOTION TO WITHDRAW AS COUNSEL In November 2020, the appellant's attorney filed a motion to withdraw as the representative before VA. The attorney has shown good cause for the withdrawal and established that the action was taken in accordance with the requirements of 38 C.F.R. § 20.6. Accordingly, the request to withdraw as counsel is granted. ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran served in active duty from September 1968 to September 1970, including service on the Republic of Vietnam. He was the recipient of the Combat Infantryman Badge. 2. The Veteran died in July 1997. According to the Certificate of Death, the immediate cause of death was congestive heart failure (CHF), due to (or as a consequence of) hypertensive heart disease. 3. At the time of the Veteran's death, service connection was in effect for residuals of a right knee injury at 0 percent disabling; service connection was also granted for coronary artery disease (CAD) in a June 2018 rating decision, effective April 6, 1995. 4. CAD materially contributed to the cause of the Veteran's death. CONCLUSION OF LAW Service-connected CAD caused, or contributed substantially or materially, to the cause of the Veteran's death. 38 U.S.C. §§ 1310, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claim was originally denied in January 2012. The appellant testified before the Board in March 2019. In July 2019, the Board denied the appeal. The appellant appealed to the Veterans Claims Court. In May 2020, the Court Clerk granted a Joint Motion for Remand (JMR). The appeal returns to the Board for action consistent with the JMR. Since the last adjudication of the appeal by the Agency of Original Jurisdiction (AOJ), additional, relevant evidence has been received. While this evidence has not been considered by the AOJ in connection with the cause of death appeal, and the appellant has not waived such consideration, as the Board's decision is favorable to the appellant, no prejudice has resulted from not remanding the appeal for AOJ review of this additional evidence. Turning to the relevant law and regulations, to establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran served in the Republic of Vietnam from March 1969 to March 1970, and so is presumed to have been exposed to herbicides. 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) are both among the diseases specified in 38 U.S.C. § 1116(a). However, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Thus, the enumerated diseases which are associated with herbicide exposure do not include CHF or hypertensive heart disease. 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a veteran from establishing service connection with proof of direct causation, or on any other recognized basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The basic facts are not in dispute. The Veteran died in July 1997 at the age of 54. The immediate cause of death was listed as CHF due to hypertensive heart disease. There were no other significant conditions contributing to death. At the time of his death, service connection was in effect for residuals of a right knee injury. In addition, subsequent to the hearing before the Board and the Board's denial, a June 2021 rating decision granted service connection for CAD, effective April 6, 1995. Moreover, in June 2021, a VA clinician considered the relationship between the Veteran's CHF, hypertensive heart disease, and CAD. The clinician indicated that the symptoms of CAD could not be differentiated from the symptoms of other cardiac disorders. The clinician further stated that there was significant overlapping symptomatology between CAD and cardiomyopathy/CHF. Additionally, the clinician found that the conditions of CAD as well as cardiomyopathy/CHF would both be anticipated to cause significant decrease in METs level. Finally, the clinician opined that while the left ventricle ejection fraction (LVEF) would be anticipated to be decreased primarily from CHF, the CHF was likely due initially to the CAD (in the form of ischemic cardiomyopathy). As the medical evidence reflects that the Veteran's symptoms of CHF and CAD were indistinguishable, and that CAD likely caused or contributed to CHF, the Board finds that the Veteran's service-connected CAD at least as likely as contributed significantly to cause his death. Thus, the appeal is granted. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. M. Schaefer, 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.