Citation Nr: 21023736 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-45 118 DATE: April 21, 2021 ORDER Entitlement to service connection for the Veteran’s cause of death is granted. FINDINGS OF FACT 1. The Veteran died in February 2015; his death certificate listed hypertensive cardiovascular disease as the immediate cause of death. 2. At the time of his death, the Veteran was service connected for post-traumatic stress disorder (PTSD) and prostatic hypertrophy and urinary infection. 3. The Veteran’s service-connected PTSD caused or contributed to his death inasmuch as it impacted hypertensive cardiovascular disease, the actual cause of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to September 1972, to include service in the Republic of Vietnam. He died in February 2015 and the appellant claims as the Veteran’s surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2015. The matter was remanded to the RO in September 2018 for a medical opinion. A VA medical opinion was rendered in February 2019. Subsequently, appellant has submitted evidence and argument with a waiver of agency of original jurisdiction (AOJ) consideration. The matter has been returned to the Board for appellate consideration. The appellant asserts that the Veteran’s service-connected PTSD led to his hypertension and hypertensive heart disease, and thereby caused or substantially contributed to his death. See August 2019 letter and evidence submissions from appellant’s attorney. It is argued, thus, that the Veteran’s death was caused by or materially contributed to by service-connected disability. The attorney submitted medical opinion and literature supporting the theory that PTSD manifestations affect heart disease and that in the Veteran’s specific case this negatively affected his heart, causing disease and ultimately death. The Board remand resulted in a negative VA medical opinion addressing the critical issue in this claim. Thereafter, the appellant’s attorney submitted a positive opinion, also addressing the critical issue in this claim, with citations to medical literature and specific application of the theories cited in the literature to this Veteran’s case. Both opinions were rendered by physicians who are noted to have reviewed the record. We note that service connection for PTSD was in effect from February 7, 2008, with a 50 percent rating from that time and then a 100 percent rating from August 12, 2012. There is presently a separate appeal for an initial evaluation in excess of 50 percent for PTSD, prior to August 12, 2012, as well as TDIU.   Cause of death Under 38 U.S.C. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation (DIC) to the veteran’s surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. Veterans are entitled to compensation from the VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). In general, to establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for a disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disease, including cardiovascular-renal disease including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a), see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Ischemic heart disease is listed at 38 C.F.R. § 3.309 (e). However, NOTE 2 provides that, 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. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for the Veteran’s cause of death is granted. Initially, we note that the record is uncontroverted that hypertensive cardiovascular disease did not manifest in service or within the initial post service year. Appellant does not argue that the Veteran had such disease in service or within the initial post service year, or that there has been continuity of symptomatology since service. Also, there is no medical opinion indicating that his hypertensive cardiovascular disease is ischemic heart disease, and we do not find service connection based on Agent Orange exposure is appropriate on the current record. Instead we find that the evidence is in equipoise on the issue we asked the VA examiner in our prior remand, whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s service-connected PTSD and/or prostatic hypertrophy and urinary infection contributed substantially or materially to the cause of his death, combined to cause death, or aided or lent assistance to the production of death. First, the opinion of the VA physician in February 2019 was that it is less likely than not that the Veteran's service-connected PTSD and/or prostatic hypertrophy and urinary infection contributed substantially or materially to the cause of his death, combined to cause death, or aided or lent assistance to the production of death. They noted the record showed the Veteran smoked and had hypertension. Citing to Healthline, they noted that tobacco smoking and hypertension are noted predisposing risk factors in the development of hypertensive heart disease. They also cited, “[T]he fact that medical records were silent for any evidence of any progression nor complications of the Veteran's service connected conditions of posttraumatic stress disorder (PTSD), prostatic hypertrophy and/or urinary infection prior to nor at time of death nor am I aware of any evidence based medical literature, to include, ie. healthline, that would provide supporting evidence to support the above claim or would have predisposed this Veteran to the conditions noted in the death certificate as to cause of death.” The non-VA physician, M.B., M.D., renders a wholly opposite opinion. After indicating the file was reviewed, and citing to pertinent parts of the Veteran’s history, supportive medical journals and articles, they conclude:   Based on my experience, review of the veteran’s claims file, and the above cited medical literature it is my opinion the veteran’s service-connected PTSD more likely than not caused and permanently aggravated his hypertension and hypertensive heart disease, combined with other factors including his tobacco use disorder and family history of cardiovascular disease. It would be impossible to determine how much of each factor contributed more than the other to the cause of his hypertensive heart disease. It is also my opinion the veteran’s hypertensive heart disease more likely than not contributed both substantially and materially to his cause of death. Dr. B.’s resume and credentials are provided with the opinion. Dr. B.’s opinion, supported by the aforementioned the medical literature and references to the Veteran’s specific circumstances, constitute highly probative evidence in favor of the claim. Dr. B.’s rationale was based on the Veteran’s service, pertinent medical records, and the doctor’s interpretation of information related to PTSD and heart disease, informed by their own training, knowledge, and expertise. Together, this evidence is at least as probative as the VA doctor’s opinion that is partially based on a reported lack of awareness of any evidence based medical literature that would provide supporting evidence to the above claim. Accordingly, the Board finds that the evidence for and against the claim is now at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the appellant and entitlement to service connection for cause of the Veteran’s death is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   The Board shall not remand again. We also take notice of certain comments contained within the Federal Register. Although not directly on point, the comments are enlightening. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.