Citation Nr: A21020176 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191106-43164 DATE: December 17, 2021 ORDER Entitlement to service connection for the cause of death is granted. FINDINGS OF FACT 1. The Veteran died in June 2015; the death certificate lists the immediate cause of death as acute diastolic heart failure. 2. The Veteran is presumed to have been exposed to herbicide agents in Vietnam during the Vietnam War era. 3. The Veteran was diagnosed with coronary artery disease and ischemic heart disease prior to his death. 4. The Veteran's coronary artery disease and ischemic heart disease, presumptively service connected as due to in-service herbicide exposure, caused or contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1110, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1966 to October 1969. His service included a combat tour in the Republic of Vietnam from October 1968 to October 1969 for which he was awarded the Bronze Star Medal. He died in June 2015, and the appellant is the Veteran's widow. A rating decision was issued under the legacy system in October 2015 and the Veteran submitted a timely notice of disagreement. In October 2019, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The appellant opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a November 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the November 2019 SSOC, which was received on November 6, 2019. The appellant selected Evidence Review by a Veterans Law Judge. Therefore, the October 2019 SSOC is the decision on appeal and the Board may only consider the evidence of record at the time of the October 2019 SSOC, as well as any evidence submitted by the appellant or her representative with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. Entitlement to service connection for the cause of death Service connection for the cause of a veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of the veteran's death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or jointly with some other condition be the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. For a service-connected disability to be a contributory cause of death, it must have contributed substantially or materially; combined to cause death; aided or lent assistance to the production of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injuries primarily causing death. 38 C.F.R. § 3.312(c)(3). VA has conceded service in the Republic of Vietnam and exposure to Agent Orange. See July 2007 rating decision. In this regard, if a veteran was exposed to an herbicide agent during active service, certain diseases, to include coronary artery disease under ischemic heart disease (IHD), are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Such regulation defines IHD as 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. It is further noted that IHD 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 IHD. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). According to the Veteran's death certificate, the primary cause of death was acute diastolic heart failure. There are no disabilities listed as "other significant conditions" on the death certificate. See June 2015, Death Certificate. At the time of the Veteran's death, service connection was in effect for type II diabetes mellitus, tinnitus, peripheral neuropathy of right lower extremity, left arm triceps scar, and hearing impairment. The appellant contends that the Veteran had coronary artery disease and ischemic heart disease due to his conceded exposure to herbicide agents that caused and/or contributed to his death. As the Board herein awards service connection for the cause of the Veteran's death based on his coronary artery disease (CAD) and ischemic heart disease, the Board need not address the appellant's alternative theories of entitlement. Private treatment records show several diagnoses related to the heart. Notably, a March 2015 CT angiogram of chest shows "extensive coronary artery vascular calcifications. However, there is conflicting evidence as to whether the Veteran had coronary artery disease and ischemic heart disease that contributed substantially and materially to his death. In a July 2017 letter from private physician Dr. J.F., he opines in part that the Veteran had coronary artery disease (CAD), which directedly contributed to the immediate cause of the Veteran's death. He also opined that the squamous cell carcinoma of the throat with which the Veteran was diagnosed was due to his presumed exposure to herbicide agents, and that it contributed to the Veteran's malnutrition which also contributed to his death. Dr. J.F. also opined that the Veteran had a history or rheumatic fever prior to his entry into active service that was aggravated by the Veteran's service, including his presumed exposure to herbicides. In regard to the cause of death acknowledged in the death certificate, acute diastolic heart failure, Dr. J.F. opined that this diagnosis is a functional cause citing specific physiology leading to death that it does not specify the underlying disease pathology that led to death, which are multiple, mutually interacting, and identifiable from the medical treatment records. Dr J.F. discussed the Veteran's diagnoses of rheumatic heart disease, coronary artery disease or ischemic heart disease with arteriosclerosis which was diagnosed in March 201,5 which he opined contributed to the Veteran's cause of death. Pursuant to the Board's March 2019 Remand, the AOJ obtained a VA medical opinion which addressed whether the Veteran had coronary artery disease (CAD) at the time of death and, if so, whether it was at least as likely as not (50 percent probability or more) that the Veteran's CAD contributed to his death from acute diastolic heart failure. A September 2019 VA medical opinion determined that the Veteran most likely had coronary artery disease at the time of his death as the Veteran's medical records show a March 2015 CT angiogram of the chest that revealed "extensive coronary artery vascular calcifications". The VA examiner stated that "[w]hile not diagnostic of coronary disease, the extensive calcifications are highly suggestive of obstructive lesions within the arteries." The examiner then opined that "it is a less than 50% chance that the CAD contributed to the Veteran's death." The rationale provided was that while the Veteran likely had coronary artery disease at the time of his death, this was not a treated diagnosis in the medical records. "Death appears to be distinctly from diastolic heart failure due to a combination of factors including valvular heart disease, history of arrhythmias and toxic effects of recent cancer chemotherapy. The veteran was not treated for coronary artery disease, but rather it appears that coronary artery calcifications were incidental findings on chest angiogram done [March 2015]. Veteran's mortality from the toxic effects of chemo on the heart muscle would have occurred in the setting of normal coronary arteries. [Dr. J.F.'s] report is noted and considered in this opinion. [Dr. F.] notes a normal treadmill stress test 4/1995 and again 8/2000. He notes the syncope that occurred 10/2013 in the setting of aortic stenosis, a common symptom of this valvular disorder. He notes that in 1/2014 atrial flutter was noted, of which the underlying disease to be of rheumatic origin. [Dr. F.] articulates well the various known cardiac conditions suffered by the veteran but does not offer medical evidence of coronary artery disease. The [V]eteran was not treated for coronary disease, but there is evidence that the [V]eteran had this in the medical records. However, the [Ve]teran's death is accounted for by his known cardiac conditions at the time of his death." In a November 2019 correspondence, Dr. J.F., rebutted the September 2019 VA examiner's opinion regarding whether ischemic heart disease was a contributory cause of the Veteran's death. Dr. J.F. opined that "severe coronary artery disease and ischemic heart disease are widely recognized as a major contributor to death when coronary disease of this severity is present. How the disease could be as severe as it was in this individual and still not contribute to death would require detailed and precise reconciliation of realities, which was not provided except for the erroneous version that the absence of an acute cardiac event indicates they ischemia was not contributory. This assertion is erroneous, because in all relevant studies, well over half of the death due to ischemic heart disease are not associated with diagnosable myocardial infarction but are sudden death without prior angina or prior infarction. In some studies, death due to ischemia without infarction or other "active" prior evidence of ischemia accounted for 75% of the instances of death." Dr. J.F. concluded that more likely than not, coronary artery disease and ischemic heart disease were a major material contributory cause of the Veteran's death. (Continued on the next page) The Board finds that the Veteran's coronary artery disease and IHD was a contributory cause of the Veteran's death. The Veteran served in the Republic of Vietnam and exposure to herbicides is therefore presumed. Accordingly, service connection is warranted for his coronary artery disease and IHD. In light of the above July 2017 private medical opinion and its November 2019 addendum opinion and medical records, the Board finds that the weight of competent and credible evidence is in favor of granting service connection for the cause of the Veteran's death. The private physician provided a very detailed rationale in support of his opinion that while the Veteran's immediate cause of death was acute diastolic heart failure, coronary artery disease and ischemic heart disease were a contributory cause of the Veteran's diastolic heart failure leading to death. Therefore, service connection for cause of death is granted. 38 C.F.R. § 3.312. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Romero-Sanchez, Emma 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.