Citation Nr: 21023416 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-44 210 DATE: April 20, 2021 ORDER Service connection for the cause of the Veteran’s death for purposes of receiving Dependency and Indemnity Compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in August 2016. His death certificate indicates that the cause of death was cardiac arrest and cirrhosis of the liver. 2. At the time of death, the Veteran was service connected for generalized anxiety disorder with post-traumatic stress disorder, bilateral hearing loss, atopic dermatitis, and tinnitus. 3. As the Veteran had active duty service in the Republic of Vietnam, exposure to herbicide agents can be conceded. 4. Symptoms of heart and liver disease were not chronic in service, continuous after service, or manifest to a degree of 10 percent within one year of service separation. 5. The Veteran’s cause of death was not ischemic heart disease, or another disease associated with presumed herbicide exposure, or otherwise related to service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death for purposes of receiving Dependency and Indemnity Compensation (DIC) have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.12, 3.303, 3.312 REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to December 1970, including a tour of duty in the Republic of Vietnam. The Veteran died in August 2016 and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for cause of death. The Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2019, and a transcript of the hearing is associated with the claims file. In February 2020, the Board remanded the Veteran’s claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for cause of death Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a Veteran’s death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran’s death. 38 C.F.R. § 3.312. Generally, to establish service connection a claimant must show: (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Establishing service connection for a disability resulting from exposure to a herbicide agent For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f) (West 2014). "Service in the Republic of Vietnam" means actual service in country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). For such Veterans with confirmed Vietnam service, exposure to herbicides is presumed. See 38 C.F.R. § 3.309(e). If a Veteran was exposed to a herbicide agent during service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type II diabetes (also known as Type II diabetes colitis or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. 38 C.F.R. § 3.309(e). While ischemic heart disease is noted to be a presumptive disorder under 38 C.F.R. § 3.309(e), this term does not include hypertension. 38 C.F.R. § 3.309(e), Note 3. 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. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection for the cause of the Veteran’s death for purposes of receiving Dependency and Indemnity Compensation (DIC) The Appellant seeks service connection for the cause of the Veteran’s death. At the time of his death, the Veteran was service connected for generalized anxiety disorder with PTSD, bilateral hearing loss, tinnitus, and atopic dermatitis. The causes of the Veteran’s death listed on his death certificate are cardiac arrest and cirrhosis of the liver. Because the Veteran was presumed exposed to herbicides in Vietnam, the Appellant contends that ischemic heart disease caused the Veteran’s cardiac arrest. Alternatively, the Appellant’s representative at the November 2019 Board hearing suggested that the Veteran’s service-connected mental health disability caused the Veteran’s heart failure. The representative said he would submit an article on the topic for the record. The presiding VLJ at the hearing kept the record open for 30 days, but the referenced article nor anything else was submitted to support this alternative theory, no further reference was made of a second theory of service connection by the Appellant’s representative, and the preponderance of the evidence is against the second theory of service connection. Turning to the theory of ischemic heart disease (IHD) as a service connectable cause of death, there were three post mortem IHD medical opinions of record from August 2017 and November 2019, which were faxed in by the Appellant’s representative less than a week after the Board hearing, and an April 2020 VA remand-ordered addendum/clarification Disability Benefits Questionnaire (DBQ). The August 2017 examiner’s heart conditions DBQ clearly noted that the Veteran had diagnosed heart conditions, including congestive heart failure and valvular heart disease. The doctor further checked the box indicating that the heart conditions were within the generally accepted medical definition for ischemic heart disease but then manually wrote in the conditions as congestive heart failure, diastolic, atrial fibrillation, mild aortic stenosis and left ventricular hypertrophy. The Appellant’s November 2019 fax included another opinion from a different doctor, a cardiologist, whose IHD DBQ dated November 2019 clearly checked the box that the Veteran did NOT have ischemic heart disease. This doctor noted the Veteran had chronic congestive heart failure with no evidence of cardiac hypertrophy or dilation. In February 2020 the Board remanded the issue of cause of death for an addendum opinion to resolve the prior two conflicting medical opinions. The VA examiner noted in his April 2020 report that the Veteran’s treatment records reflect arrhythmia, atrial fibrillation, chronic diastolic heart failure and valvular heart disease. The 2020 VA examiner reviewed the claims file and determined that the Veteran did NOT have any evidence of ischemic heart condition. He found that the Veteran was not previously diagnosed with coronary artery disease and had not been treated for myocardial infarct. He did not have intervention done specific for coronary artery disease including stent, angioplasty, or bypass grafting surgery. When reviewing the previous IHD opinions, the VA examiner noted that the November 2019 report who concluded there was no IHD, is a cardiologist affiliated with Change of Heart Cardiology group. Treatment records from that office showed no evidence of coronary artery disease. The Veteran was noted to have past medical history of atrial fibrillation, valvular heart disease, and chronic diastolic heart failure. The Veteran was also noted to have hypertension, obstructive sleep apnea, and cirrhosis. The 2020 examiner also reviewed the August 2017 report which noted the same diagnosis of atrial fibrillation, diastolic heart failure, and valvular heart disease. While the 2017 examiner checked the box indicating the Veteran had had ischemic heart disease, the examiner did not elaborate which of the heart conditions listed qualify as an ischemic heart condition. The original examiner did not provide any additional evidence to support diagnosis of ischemic heart condition, including any stress testing showing presence of ischemia or cardiac catherization showing any coronary artery stenosis. The 2020 VA examiner disagreed with the 2017 examiner stating, “Therefore, in absence of any evidence showing presence of coronary artery disease, a diagnosis of ischemic heart condition is less likely.” The VA examiner also concluded with regards to atrial fibrillation, atrial fibrillation is less likely related to the Veteran’s active military service, including his presumed exposure to herbicide agents during his service in Vietnam. Arrhythmia with atrial fibrillation is not considered to be an ischemic heart condition. He went on to say that based on the latest medical knowledge, the Veteran had multiple confirmed risk factors for atrial fibrillation including hypertension, valvular heart disease, and sleep apnea. In absence of confirmed coronary artery disease, the etiology of the arrhythmia with atrial fibrillation is less likely due to ischemic heart condition. The VA examiner also noted with regards to valvular heart disease, the Veteran was diagnosed with mild aortic stenosis. Aortic stenosis in elderly populations are not caused by any ischemic heart condition, so therefore less likely related to the Veteran’s active military service, including his presumed exposure to herbicide agents during his service in Vietnam. The authors of the article on the subject referenced by the VA doctor reported that aortic valve stenosis that is related to increasing age and the buildup of calcium deposits on the aortic valve is most common in older people. This is a common occurrence in elderly populations and is not related to any undiagnosed coronary artery disease. As there is no evidence that aortic stenosis in elderly patients is caused by coronary artery disease, it is less likely that the aortic stenosis is an IHD. With regards to diastolic heart failure, the 2020 examiner noted the Veteran had confirmed risk factors for heart failure including hypertension, atrial fibrillation, sleep apnea, and liver cirrhosis. All these conditions are confirmed risk factors for diastolic heart failure. Article https://www.aafp.org/afp/2004/0601/p2609.html showed that hypertension and atrial fibrillation are common causes of diastolic heart failure. Article https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6718042/ showed that cirrhosis is also a recognized cause of diastolic heart failure. Patient with sleep apnea is also at risk for heart failure, as per article https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6059510/. The 2020 clarification opinion concluded, in absence of any confirmatory testing to show presence of coronary artery disease, the Veteran’s heart failure is less likely related to ischemic heart disease, and less likely related to the Veteran’s active military service, including his presumed exposure to herbicide agents during service in Vietnam. The Board finds all three doctors are competent to opine on the matter based on their education and medical knowledge. The cardiologist who provided the 2019 exam was possibly most competent because of his specialized medical training. Of the three doctors, the 2017 examiner who said the Veteran had IHD was the least credible, because his IHD diagnosis did not match the conditions he listed for the Veteran under that category. The greatest weight is given to the opinion and rationale provided by the 2020 VA examiner, because his conclusion that the Veteran did not in fact have IHD was well explained and was based upon a review of the treatment records and medical literature. To the extent to which the Veteran was diagnosed with other heart disabilities, including the diagnosis of atrial fibrillation, valvular heart disease, and diastolic heart failure, these conditions are not ischemic heart disease under the regulation. The conditions have also found to be less likely than not related to service. As noted above, the Veteran had multiple risk factors for all these diagnoses. There is no evidence that any in service event or exposure had caused or aggravated the heart conditions with atrial fibrillation, valvular heart disease, and diastolic heart failure; and therefore it is less likely that the atrial fibrillation, valvular heart condition, and diastolic heart failure is related to the Veteran’s active military service, including his presumed exposure to herbicide agents during his service in Vietnam. Finally, there is no evidence the cirrhosis of the liver was related to the Veteran’s service. Service treatment records do not reflect complaints, symptoms or diagnoses of cirrhosis. A 1992 VA examination did not note any liver disorders. Furthermore, the record does not indicate a link between the cirrhosis and service. For these reasons, the Board finds that the preponderance of the evidence is against service connection for the Veteran’s cause of death. The Board is grateful for the Veteran’s service and is sympathetic to the Appellant’s beliefs regarding the Veteran’s cause of death; however, the preponderance of the competent evidence is against the claim, and the benefit-of-the-doubt doctrine does not apply. Service connection for the Veteran’s cause of death is not warranted, and the claim for DIC is denied. 38 U.S.C. § 5107(b). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.