Citation Nr: 21032781 Decision Date: 05/28/21 Archive Date: 05/27/21 DOCKET NO. 15-42 066 DATE: May 28, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's hypertension, a noted contributing condition to his cause of death, had its onset in service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death are met. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1949 to January 1952 and from January 1952 to November 1957, including service during a period of war. The Veteran died in December 2006 and the appellant is his surviving spouse. This matter comes before the Board of Veteran's Appeals (Board) from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019 when the claim was remanded for development. The Board finds the December 2019 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the docket in consideration to the appellant's advanced age. 38 C.F.R. § 20.902 (c)(1). The Board acknowledges the appellant's representative assertion that although she checked the box to claim service connection for death in the VA Form 21-534, Application for Dependency and Indemnity Compensation, the appellant is seeking "widow's pay" or survivor's pension based on income. See Appellate Brief, May 2021. The Board notes that the July 2013 rating decision, on appeal, only noted the issue of entitlement to service connection for cause of death. However, a notification letter, dated July 2013, informed the appellant that her claim for death pension was denied because her income, as verified by the Social Security Administration, exceeded the maximum annual death pension limit set by law. See Notification Letter, July 2013. In the notice of disagreement (NOD) presented by the appellant, she stated her disagreement with the July 2013 rating decision and requested a De Novo Review. She listed as the issue on appeal "DIC-denied" and submitted arguments in favor of her claim of service connection for the Veteran's cause of death. See NOD. Thus, the record shows that the appellant's claim for death pension benefits was denied in July 2013. That decision became final as no disagreement pertaining to that issue was received within the one-year period following the decision. Accordingly, that issue is not part of the present appeal and the Board has no jurisdiction over the matter. The issue is being referred back to the RO for adjudication. Entitlement to service connection for the Veteran's cause of death The appellant seeks service connection for the Veteran's cause of death. In favor of her claim, she asserts that the Veteran's hypertension had its onset in service and contributed to his death. See NOD. In a claim of service connection for a veteran's cause of death, i.e., Dependency and Indemnity Compensation (DIC), evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC is also awarded if the veteran's death can be service connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of a veteran's death is granted, post mortem, and DIC is awarded, if the evidence shows that a fatal disease or injury was actually incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to a veteran's death, was either the principal or a contributory cause of death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran's death, due to a cause not already service connected, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a), 3.312(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For a service-connected disability to be the principal cause of death, it must singularly 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). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a [claimant] 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge can still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends the Veteran's service treatment records (STRs) show symptoms of hypertension in service, and that hypertension was a contributing factor in the Veteran's death. See NOD. The Veteran's death certificate shows that he died on December 2006 and the cause of death is noted as cardiorespiratory failure, due to or as a consequence of cerebrovascular accident, coronary artery disease, and hypertension. See Death Certificate. At the time of his death, the Veteran was only service connected for a clavicle fracture. The Veteran's STRs and post-service medical records have been associated with the claims file. The Veteran's STRs show various notations pertaining to the Veteran's blood pressure, some of which appear to be above the normal limits. However, the STRs do not reflect a diagnosis of hypertension. See generally STRs. In October 2011, a handwritten medical opinion by Dr. Z, a private physician, was associated with the claims file. In this opinion, the doctor noted having reviewed the Veteran's medical records. She opined that the Veteran had high blood pressure in service, that it continued after his service, and that it caused his death. See medical opinion by Dr. Z, associated with the claims file in October 2011. In October 2013, a medical opinion dated September 2013, was associated with the claims file. A certified physician assistant noted having reviewed some medical records and opined that the Veteran's hypertension contributed to his death. See medical opinion, dated September 2013, associated with the claims file in October 2013. Another medical opinion by Dr. Z was associated with the claims file in October 2013. In this opinion, the physician opined that after reviewing the medical records, the Veteran's high blood pressure began in service and contributed to his death. The page where Dr. Z wrote her opinion by hand, contains a typed paragraph noting that various blood pressure readings in the Veteran's STRs shows "diastolic readings in the low 90's and high 90's" while on active duty. See medical opinion by Dr. Z, associated with the claims file in October 2013. This opinion was associated with the claims file along excerpts of the Veteran's STRs showing various blood pressure readings. The Board finds this opinion adequate and assigns it high probative value. In March 2020, a VA medical opinion was associated with the claims file. The examiner noted having reviewed the Veteran's medical records and opined that the Veteran did not have hypertension in service, nor did he develop any condition during service that contributed to his death. In favor of this opinion, the examiner noted that the Veteran's STRs show one elevated blood pressure reading, and other two readings that were in the upper limit of "normal" in the military. He explained that all three readings were noted in conjunction with acute influenza illness (elevated temperature, elevated heart rate, elevated respiration, and elevated blood pressure). Thus, the examiner reasoned that the elevated blood pressure was an acute physiological response to an acute infection and that once the infection was under control, the Veteran's blood pressure returned to normal. He also noted that there was no diagnosis of hypertension nor treatment for the condition while the Veteran was in the military. The examiner further opined that the Veteran's service-connected clavicle fracture did not contribute significantly or materially to his death. In favor of this opinion, the examiner noted that the Veteran's fracture healed completely without any residual and that there is no physiological correlation with healed fracture that would lead to hypertension or coronary artery disease. See VA medical opinion associated with the claims file in March 2020. The Board finds this opinion adequate and assigns it high probative value. Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran had hypertension in service. The VA medical opinion of March 2020 explains that although there were some abnormal blood pressure readings noted in the Veteran's STRs that these findings were an acute physiological response to an acute infection and do not support a diagnosis of hypertension. On the other hand, the medical opinion subscribed by Dr. Z, notes that in her professional opinion the blood pressure readings noted in the Veteran's STRs are consistent with a hypertension diagnosis while he was in service. The appellant has noted that Dr. Z was the Veteran's treating physician for approximately 2 years prior to his passing and was familiar with the Veteran's medical history to include his military history. See NOD, dated September 2013 and associated with the claims file in October 2013. Accordingly, the Board finds that as there is evidence in favor and against the finding that the Veteran had hypertension during service; the evidence is at least in equipoise. Resolving doubt in the appellant's favor, the Board finds that service connection for cause of death is warranted, as the record reflects the Veteran's hypertension was a contributory cause of death and the evidence is at least equipoise as to whether the Veteran's hypertension originated in service. Thus, resolving doubt in the appellant's favor, service connection for the Veteran's cause of death is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.