Citation Nr: 21072102 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-14 047A DATE: December 2, 2021 ORDER Entitlement to service connection for an unspecified depressive disorder for accrued benefits purposes is granted. Entitlement to service connection for hypertension for accrued benefits purposes is granted. Entitlement to service connection for congestive heart failure for accrued benefits purposes is granted. Entitlement to service connection for obstructive sleep apnea for accrued benefits purposes is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) for accrued benefits purposes is granted. Entitlement to service connection for type II diabetes mellitus for accrued benefits purposes is granted. Entitlement to service connection for chronic kidney disease for accrued benefits purposes is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy for accrued benefits purposes is granted. Entitlement to death and indemnity compensation (DIC) based on service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. Prior to his death, the Veteran had an unspecified depressive disorder which was incurred in service. 2. Prior to his death, the Veteran had hypertension which was caused or aggravated by an unspecified depressive disorder. 3. Prior to his death, the Veteran had obstructive sleep apnea which was caused or aggravated by an unspecified depressive disorder. 4. Prior to his death, the Veteran had congestive heart failure which was caused or aggravated by hypertension and obstructive sleep apnea. 5. Prior to his death, the Veteran had COPD which was caused or aggravated by obstructive sleep apnea. 6. Prior to his death, the Veteran had type II diabetes mellitus which was aggravated by obstructive sleep apnea. 7. Prior to his death, the Veteran had chronic kidney disease which was caused or aggravated by type II diabetes mellitus and hypertension. 8. Prior to his death, the Veteran had bilateral lower extremity peripheral neuropathy which was caused or aggravated by type II diabetes mellitus. 9. The immediate cause of the Veteran's death was acute congestive heart failure, due to or as a consequence of hypertension, with type II diabetes mellitus as a significant condition contributing to death, and the Veteran was service connected for these disorders. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an unspecified depressive disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for obstructive sleep apnea are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for congestive heart failure are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for COPD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for entitlement to service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for entitlement to service connection for chronic kidney disease are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 8. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 9. The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1970. He died in July 2017. The appellant is the Veteran's surviving spouse, and she was granted substitution to pursue this claim in February 2018. These matters are before the Board of Veterans' Appeals (Board) on appeal of August 2014 and December 2017 Department of Veterans Affairs (VA) rating decisions. This case was previously before the Board in July 2019 and March 2020. In July 2019, the Board denied entitlement to service connection for hypertension, and remanded the remaining claims for additional development. In October 2019, the Veteran filed a motion to vacate the Board's July 2019 denial of entitlement to service connection for hypertension. In an October 2021 decision, the Board vacated the July 2019 denial of entitlement to service connection for hypertension. The issue of entitlement to service connection for hypertension is therefore included in the current appeal. The remaining issues have been returned to the Board following the development ordered by the July 2019 and March 2020 Board remands. Entitlement to service connection for an unspecified depressive disorder is granted. The appellant contends that, prior to his death, the Veteran had an acquired psychiatric disorder which was related to his active-duty service. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail in a service connection claim. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service treatment records are significant for reports of frequent trouble sleeping and frequent or terrifying nightmares on separation from active-duty service in February 1970. Statements were submitted by the Veteran's sister and brothers in September and October 2014. The Veteran's siblings testified that prior to service the Veteran had been outgoing and participated in various activities, but that following discharge he became anxious, irritable and sad, and did not want to leave the house, and that these symptoms had continued to the present. In March 2017 a private psychologist, H.H., diagnosed the Veteran with an unspecified depressive disorder and opined that the condition was at least as likely as not, incurred during the Veteran's period of active-duty service. In support of that opinion, H.H. noted the Veteran's lay statements as well as those of his family describing an onset of mental health symptoms during service with continuous symptoms thereafter. In September 2019, a VA examiner opined that the Veteran's unspecified depressive disorder was related to the Veteran's active-duty service. The examiner reasoned that the February 1970 separation report of medical history noted frequent trouble sleep and frequent or terrifying nightmares which were not reported on entrance. The examiner also found the lay statements provided by the Veteran's siblings regarding the onset of mental health symptoms to be persuasive. In December 2019 a second VA medical opinion was obtained from a different examiner. The examiner opined that it was less likely than not that an unspecified depressive disorder was related to the Veteran's active-duty service, reasoning that there was "insufficient objective evidence" of a mental health condition prior to February 2017. In this case, the preponderance of the evidence is in favor of finding that an unspecified depressive disorder was incurred in or related to the Veteran's active-duty service. Notably, both the March 2017 opinion of H.H. and September 2019 VA opinion are favorable to the claim, while only the December 2019 opinion is contrary. Accordingly, the evidence is at least in equipoise, and entitlement to service connection for an unspecified depressive disorder is granted. Entitlement to service connection for hypertension, obstructive sleep apnea, congestive heart failure, COPD, diabetes mellitus, chronic kidney disease and bilateral lower extremity peripheral neuropathy is granted. The appellant contends that, prior to his death, the Veteran had hypertension and obstructive sleep apnea which were caused or aggravated by his unspecified depressive disorder, congestive heart failure which was caused or aggravated by hypertension and sleep apnea, COPD and diabetes which were caused or aggravated by sleep apnea, chronic kidney disease which was caused or aggravated by diabetes mellitus and hypertension and bilateral lower extremity peripheral neuropathy which was caused or aggravated by diabetes mellitus. Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected condition. 38 C.F.R. § 3.310 (a). Service connection is also possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Private treatment records note diagnosis with diabetic nephropathy and peripheral neuropathy in January 2014. In March 2017 a private physician, Dr. H.S., diagnosed the Veteran with hypertension, sleep apnea, congestive heart failure, COPD, diabetes, chronic kidney disease and peripheral neuropathy. Dr. H.S. opined that the hypertension was, at least as likely as not, caused or permanently aggravated beyond its natural progression due to the unspecified depressive disorder. Dr. H.S. reasoned that medical literature showed that anxiety and depression were predictive of later incidence of hypertension. Dr. H.S. further opined that obstructive sleep apnea was, at least as likely as not, caused or permanently aggravated beyond its natural progression by the unspecified depressive disorder. Dr. H.S. reasoned that psychiatric disorders were commonly associated with a higher incidence of obstructive sleep apnea and noted that the Veteran's unspecified depressive disorder caused sleep impairment, which resulted in increased obstructive sleep apnea symptoms, despite use of continuous positive airway pressure (CPAP) therapy. Dr. H.S. opined that hypertension and obstructive sleep apnea, at least as likely as not, caused or aggravated congestive heart failure beyond its natural progression. Dr. H.S. reasoned that hypertension and obstructive sleep apnea significantly increased the risk of congestive heart failure. Dr. H.S. further opined that sleep apnea, at least as likely as not, caused or aggravated COPD beyond its natural progression. H.S. reasoned that medical research showed that an association between sleep apnea and COPD. Dr. H.S. opined that diabetes mellitus was, at least as likely as not, permanently aggravated beyond its natural progression by obstructive sleep apnea. Dr. H.S. noted that obstructive sleep apnea caused higher fasting insulin levels and increased risk of diabetes. Finally, Dr. H.S. opined that chronic kidney disease was, at least as likely as not, caused or aggravated beyond its natural progression by hypertension. Dr. H.S. noted medical literature which supported that hypertension was a major risk factor for development and progression of chronic kidney disease. The September 2019 VA examiner noted an "association between depression and hypertension" which was "not necessarily [a] causation relationship." The examiner declined to offer a medical opinion as to any relationship between depression and heart failure and/or diabetes. The only probative evidence of record as to the etiology of hypertension, sleep apnea, congestive heart failure, COPD, diabetes, chronic kidney disease and lower extremity peripheral neuropathy is the positive medical opinions of Dr. H.S., and the January 2014 private treatment records noting nephropathy and peripheral neuropathy due to diabetes mellitus. While the September 2019 VA examiner considered a secondary theory of entitlement, the examiner ultimately declined to offer an opinion regarding whether unspecified depressive disorder caused any other claimed disorder. The examiner did not address whether an opinion could be provided regarding aggravation. Accordingly, the evidence is at least in equipoise as to whether hypertension, sleep apnea, congestive heart failure, COPD, diabetes, chronic kidney disease and bilateral lower extremity peripheral neuropathy were caused or aggravated beyond their natural progression by a service-connected disorder. Entitlement to service connection for hypertension, sleep apnea, congestive heart failure, COPD, diabetes, chronic kidney disease and bilateral lower extremity peripheral neuropathy is granted. Entitlement to DIC based on service connection for the cause of the Veteran's death is granted. The appellant contends that the Veteran's hypertension, congestive heart failure and diabetes mellitus caused his death and that those conditions should be service connected. To warrant service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. A disability will be considered the principal 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. A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The Veteran died in October 2017. The death certificate noted a cause of death of acute congestive heart failure, due to or as a consequence of hypertension, with type II diabetes mellitus listed as a significant condition contributing to death. As discussed above, the Veteran is awarded service connection for hypertension, congestive heart failure and diabetes mellitus. As these service-connected disabilities are listed on the Veteran's death certificate as causing or contributing to his death, the evidence is at least in equipoise as to whether a service-connected disability was either a principal or a contributory cause of death. Entitlement to DIC based on service connection for the cause of the Veteran's death is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.