Citation Nr: 21075053 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-08 859 DATE: December 17, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran passed away on September 7, 2010, and the Certificate of Death establishes that the immediate cause of death was hypertensive heart disease with underling cause of chronic renal failure. See Death Certificate received in June 2011. 2. At the time of the Veteran's death, he had not established entitlement to service connection for any disabilities. 3. Although the Veteran's hypertension was not service connected at the time of his death, the Veteran had a diagnosis of hypertension and it was incurred in service. 4. The evidence is at least in relative equipoise as to whether the Veteran's hypertension contributed substantially and materially to the Veteran's cause of death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death are met. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3,307, 3.309, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to discussing the appeal at hand, the Board would be remiss if it did not recognize the Veteran's outstanding service. The Veteran, who served on active duty in the United States Marine Corps from April 1985 to July 1986, was clearly a credit to the United States Marine Corps and to his family, and his service to his country is greatly appreciated. Unfortunately, the Veteran passed away in September 2010. See Death Certificate received in June 2011. The appellant is the Veteran's surviving spouse. See Marriage Certificate received June 2011. The appellant is seeking service connection for the cause of the Veteran's death. This case comes before the Board of Veterans' Appeals (Board) on appeal from the December 2012 rating decision issued by a Department of Veterans Affairs Regional Office (RO). See December 2012 Rating Decision - Narrative. The appeal was remanded in January 2018 for further development, and in June 2021 for substantial compliance with the prior remand instructions. See January 2018 BVA Decision; see June 2021 BVA Decision. The appeal has now returned to the Board for adjudication. 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 a service-connected disability. 38 U.S.C. § 1310 (West 2014); 38 C.F.R. § 3.5 (2021). The death of the Veteran will be considered to have been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a); see also 38 U.S.C. §§ 1110, 1131. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered the principal (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) (2021). A service-connected 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 C.F.R. § 3.312(c)(1) (2021). In determining whether the disorder that resulted in the death of the Veteran was the result of active service, the laws and regulations pertaining to service connection apply. 38 U.S.C. § 1310. Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain chronic diseases, such as hypertension, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For reference purposes, VA considers systolic pressure of 140 mm Hg or more, or diastolic pressure of 90 mm Hg or more, to be indicative of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101. A compensable, 10 percent rating for hypertension is warranted for hypertension with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As noted, the Veteran died in September 2010. See Death Certificate received in June 2011. His death certificate noted the immediate cause of death was hypertensive heart disease with underlying cause of chronic renal failure. Id. At the time of the Veteran's death, he had no service-connected disabilities, but the appellant may still establish entitlement to service connection for the cause of death by showing that the hypertension incurred in service caused or contributed substantially or materially to cause his death. See December 2020 Rating Decision-Codesheet. At the time of his death, he had a diagnosis of hypertension. The Veteran's service treatment records show that his blood pressure readings were elevated with blood pressure readings during dental treatment to include readings of 152/104 in April 1985; a reading of 160/95 in April 1985, and readings of 148/95 and 140/90 in May 1985, with reported high blood pressure in May 1986. See STR Medical. Indeed, in March 1988 the Veteran was noted to have occasional high blood pressure, and recommended to see a specialist. See Medical Treatment Record-Government Facility received June 2011. The records show that he was diagnosed as having hypertension by 2001. See May 2001 F. Pollaro, M.D. Accordingly, the Veteran's in-service systolic pressure was 140 mm Hg or more, considered by the Board to be indicative of hypertension. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that the VA examinations of record are inadequate. Specifically, the November 2021 VA examiner failed to address whether the Veteran's elevated blood pressure readings in service were the principal cause for or contributed in any way to the Veteran's death, and failed to discuss whether the hypertensive heart disease had its onset during or was causally related to service. See November 2019 Medical Opinion Disability Benefits Questionnaire. Following remand, the June 2021 opinion was also inadequate where it did not specifically address the question of whether hypertensive heart disease and/or chronic renal failure was causally related to service, and further, where it failed to discuss Dr. M.W.'s opinion (or even list it in the evidence considered). See June 2021 Medical Opinion Disability Benefits Questionnaire; see August 2011 Third Party Correspondence. The Board affords probative weight to the August 2011 opinion provided by the Veteran's private doctor, Dr. M.W., that the Veteran's blood pressure became elevated while in service, and he subsequently had a heart transplant in 2008 for nonischemic cardiomyopathy, with a severe hypertensive component, and expired in 2010 from acute and chronic rejection of his transplanted heart. See August 2011 Third Party Correspondence. The Board also affords some probative value to the appellant's statement that due to the hypertension, the Veteran experienced renal failure. This statement was made in the course of providing authorization to request medical records from the Veteran's cardiologist, Dr. M.W., and as such appears to be what she understood the cardiologist to have determined regarding her husband's condition. See October 2011 VA 21-4124 Authorization for Release of Information. (CONTINUED ON NEXT PAGE) This is an appropriate case in which to invoke VA's doctrine of reasonable doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Based on a finding that the hypertension was incurred in service, and the equipoise of evidence regarding whether the Veteran's hypertension caused the Veteran's death, by contributing to hypertensive heart failure, due to renal failure, resolving reasonable doubt in the appellant's favor, the Board finds that a grant of service connection for the Veteran's cause of death is warranted. Consequently, service connection for the cause of the Veteran's death is warranted. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.