Citation Nr: 21028282 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-14 193 DATE: May 10, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The causes of death for the Veteran were hypertension and atherosclerotic cardiovascular disease. 2. The Veteran did not have diastolic blood pressure predominantly 90 mm or greater confirmed by readings taken two or more times on at least three different days while in service. 3. A service-connected disability was not the immediate or underlying cause of the Veteran's death, and a service-connected disability was not etiologically related to the cause of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312, 4.104 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1980 to July 2001, to include service in the Southwest Asia theater of operations. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant provided sworn testimony at an August 2020 Board videoconference hearing. A copy of the transcript is part of the record. The matter is now before the Board for adjudication. 1. Entitlement to service connection for cause of death The appellant seeks to establish entitlement to service connection for the Veteran's cause of death. A death certificate for the Veteran lists the causes of death as hypertension and atherosclerotic cardiovascular disease. See November 2014 Georgia Death Certificate. The appellant contends, "I know...(Veteran) had a high blood pressure and he had high cholesterol, while (Veteran) was in the service." See August 2020 Board videoconference hearing transcript. Duty to Assist With respect to the appellant's claim, she has not alleged that VA did not fulfill its duty to notify or assist in the development of her claim. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Proper VCAA notice must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). In a claim for DIC, which includes a claim for service connection for the cause of the Veteran's death, section 5103(a) notice should include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). VA has fulfilled its duty to assist by making reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim. Under 38 U.S.C. § 5103A(d)(1), a medical examination is required when such examination or opinion is necessary to make a decision on the claim. The Federal Circuit determined that the applicability of this provision is limited to claims for disability compensation. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). An examination or opinion is not required when no reasonable possibility exists that such development would aid in substantiating the claim. See 38 U.S.C. § 5103A(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the cause of the Veteran's death, the evidence must show that the disability that was incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to cause death, it must singly, or with some other condition, be the immediate or underlying cause, or it must be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service connected. To establish service connection for a disability that caused a Veteran's death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In cases seeking service connection for a disorder, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1113(b) (2014); 38 C.F.R. § 3.303(d) (2016). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If at least one of the diseases deemed chronic for VA purposes becomes manifest to a degree of 10 percent or more during the one-year period immediately following a veteran's separation from service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Analysis Hypertension is defined by VA in 38 C.F.R. § 4.104, Diagnostic Code 7101. For rating purposes, hypertension is defined as "diastolic blood pressure is predominantly 90 mm or greater." Blood pressure readings must be taken two or more times on at least three different days to confirm hypertension or isolated systolic hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. In the present appeal, the Veteran expired in November 2014, and his death certificate lists the causes of death as hypertension and atherosclerotic cardiovascular disease. See November 2014 Georgia Death Certificate. Prior to his death, the Veteran was not service connected for any disabilities, nor did he have any pending disability claims before VA. See April 2016 VA Rating Decision Codesheet. Service medical records for the Veteran provide a history of blood pressure measurements from his entry physical in 1980 to his separation physical in 2001 (mm): 104/64 (September 1980 Report of Medical Examination (Entry) "Normal Heart, Vascular System"); 128/71 (June 1983); 128/88 (January 1984 Report of Medical Examination (Re-enlistment) "Normal Heart, Vascular System"); 124/84 (May 1989 Periodic Health Evaluation Navy Asbestos Medical Surveillance Program); 150/76 (November 1989 Report of Medical Examination (Re-enlistment)); 110/78 (January 1990); 120/72 (March 1990 "Patient states no physical / mental problems at this time. Patient states no chronic medical problems."); 110/70 (February 1991); 110/70 (March 1992); 120/70 (September 1992); 120/75 (February 1993); 120/72 (May 5, 1993), 128/84 (May 24, 1993 "Cyst removal mid forehead"), 122/66 (May 26, 1993); 114/70 (January 1994 Report of Medical Examination (Re-enlistment) "Normal Heart, Vascular System"); 142/82 (February 1995 "[C]oughing, night sweats...energy drained...hard to talk, body aches, right ear hurts x 10 days...Cannot rule out Bronchitis"); 124/76 (April 1995); 110/70 (September 1996); 126/86 ("Complains of swelling to right foot...pain to right hip x 4 days"); 110/78 (January 1999); 128/82 (February 2000 "Pain in bottom tooth"); 118/76 (January 2001 Separation Dental Examination). See Veteran service medical and dental treatment records. Service treatment records for the Veteran do not reflect complaints of, treatment for, or a diagnosis concerning high blood pressure or hypertension. On eight occasions throughout his career, the Veteran denied a current or prior diagnosis of hypertension. See January 1989, January 1990, February 1991, February 1992, February 1993, September 1996, January 1999, and February 2000 Dental Health Questionnaires ("Have you ever had or have you now...Hypertension? No."). In her August 2020 Board hearing testimony, the appellant referenced several elevated blood pressure readings documented in the Veteran's service treatment records. See August 2020 Board videoconference hearing transcript. With two exceptions, these readings were taken during visits to the infirmary or dental clinic with documented medical conditions, including surgery for a cyst removal, treatment for a respiratory infection, musculoskeletal injuries to the foot and hip, and a toothache. See Veteran service medical and dental treatment records. The blood pressure reading in January 1984 of 128/88 was taken during a Re-enlistment medical examination, the results of which were "Normal Heart, Vascular System." The Veteran was determined to be "qualified for reenlistment and to perform the duties...at sea and in the field." See January 1984 Report of Medical Examination. The May 1989 blood pressure reading of 128/84, taken pursuant to an asbestos health evaluation, is considered by the Board to be an outlier. Without at least one additional blood pressure reading, required by Diagnostic Code 7101, the evidence is of little probative value. The appellant provided a letter from the physician who treated the Veteran from February 2011 to August 2014 regarding treatment for hypertension. The letter stated, "This letter is regarding my patient, [Veteran]. Mr. [Veteran] was diagnosed and treated for hypertension. His previous military records show that he did in fact have this condition while on active duty. Treatment was continued after patient retired from the military as well." See February 2015 Northside Family Practice Letter. Treatment records from Northside Family Practice reflect that the Veteran was treated for: Umbilical hernia (February 2011); GERD (February, March, and May 2011); Sleep Apnea (May and June 2011); Hypogonadism, testicular (February, March, and June 2011, September 2012, February and August 2013, and February and August 2014); fatigue (February and June 2011 and August 2013 and 2014); Diastasis recti ("Large lump on stomach not painful."), Bunion, and Anxiety disorder (June 2014); Hyperlipidemia (February, March, and May 2011, September 2012, February 2013, and February and April 2014); actinic keratosis (April 2014); and Acute sinusitis (February 2014). See Northside Family Practice Progress Notes. The Veteran regularly denied hypertension during treatment at Northside Family Practice. See February, March, and May 2011, September 2012, and February 2013 Northside Family Practice Progress Notes ("Denies: hypertension"). The statements contained in the February 2015 Northside Family practice letter are not confirmed by contemporary, objective medical evidence. See Curry v. Brown, 7 Vet. App. 59 (1994). The Board finds the February 2015 letter from Northside Family Practice to be of limited credibility and little probative value. The Northside Family Practice letter is not consistent with the evidence of record and does not accurately reflect either the treatment of the Veteran in-service or the treatment at Northside Family Practice. Further, the physician did not provide a detailed rationale for his statements, a clear and reasoned analysis, or supporting data from the record to support his conclusions, the source of the most probative value in a medical opinion. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008). Hypertension is a chronic disease under 38 C.F.R. § 3.309(a), and when a chronic disease is shown in service, "subsequent manifestations of the same chronic disease at any later date, however remote, are service connected." 38 C.F.R. § 3.303(b) (2017). The Board notes the distinction between sporadic, slightly elevated blood pressure readings and the required, consistent diastolic readings to establish service connection for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. While the appellant contends that the Veteran "had a high blood pressure...while he was in the service," there is no documentation of hypertension in-service or within the applicable presumptive period after service. See 38 C.F.R. § 3.307. Continuity of symptomatology is required under 38 C.F.R. § 3.303(b), "where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned." Symptoms of hypertension are not documented in medical records for the Veteran until 2011, and the diastolic blood pressure readings fluctuated between 74 mm (See September 2012 and February 2014 Northside Family Practice Progress Notes) and 96 mm (See May 2011 Northside Family Practice Progress Note). The last blood pressure reading of record is 136/78, taken in August 2014, three months before the Veteran passed away, which is not considered hypertensive by VA standards. See August 2014 Northside Family Practice Progress Note. Despite the assertions of the appellant regarding evidence and / or treatment of hypertension for the Veteran in-service, an actual diagnosis of hypertension requires objective, medical testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The first medical record to suggest symptoms of hypertension does not appear until 2011, nearly a decade after service. See February 2011 Northside Family Practice Progress Note. The Veteran does not meet the requirements for presumptive service connection, either by diagnosis in-service or within the prescribed time limits after service, namely the lack of diagnosis of hypertension, or through continuity of symptomatology, evidenced by a near 10 year period without signs or symptoms of a vascular condition, raising a legitimate question of chronicity. Therefore, he is not entitled to the presumption of an in-service incurrence, aggravation in-service, or nexus to service. See 38 C.F.R. §§ 3.303, 3.307, and 3.309. Conclusion The appellant has not demonstrated, by a preponderance of the evidence, that the Veteran's death should have been service-connected. The appellant has not shown a causal relationship between the Veteran's hypertension, diagnosed post-mortem, and his military service. In addition, the Veteran is not entitled to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309. The appellant is not considered competent to provide the requisite etiology of hypertension, because such a determination requires medical expertise and training which she has not been shown to possess. 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the appellant's assertion that the Veteran's hypertension, diagnosed post-mortem, is related to his service is not considered to be competent. In summary, there is no evidence that the Veteran's hypertension, diagnosed post-mortem, was causally or etiologically related to his service, and the claim for service connection must be denied. As the weight of the evidence is against the claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.