Citation Nr: 22058167
Decision Date: 10/18/22	Archive Date: 10/18/22

DOCKET NO. 18-02 795
DATE: October 18, 2022

ORDER

Entitlement to service connection for the cause of the Veteran's death is granted. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).

FINDING OF FACT

The Veteran's hypertensive cardiovascular disease is presumed to be etiologically related to his conceded in-service herbicide exposure. 

CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. This issue is granted pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1968 to January 1972.  The Veteran passed away in November 2016.  The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  Although the Appellant requested a hearing in her VA Form 9, she did not appear at the scheduled October 2019 hearing, and the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e). In December 2019, the Board remanded this claim for additional development, which has been completed.

1. Entitlement to service connection for the cause of the Veteran's death

The appellant seeks service connection for the cause of the Veteran's death. She contends that the Veteran's hypertensive cardiovascular disease, which caused his death, was due to service. Specifically, she contends that the Veteran's cardiovascular disease was the result of exposure to herbicide agents in the Republic of Vietnam. Upon review of the record, the Board agrees that service connection for cause of death is warranted as presumptively related to herbicide exposure.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2019) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013.

For those who had active service in the Republic of Vietnam between January 1962 and May 1975, service connection may be granted for certain enumerated chronic diseases based upon presumed exposure to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). Additionally, Congress recently passed the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which, inter alia, adds hypertension to the list of conditions subject to service connection on a presumptive basis under 38 U.S.C. § 1116. Honoring our PACT Act of 2022, Pub. L. 117-168 (2022).

The Veteran's DD Form 214 indicates that he served in the Republic of Vietnam from April 1969 to April 1970. Therefore, herbicide exposure is conceded.

The Veteran's death certificate shows that the cause of death was hypertensive cardiovascular disease not otherwise specified (NOS), and hyperlipidemia. The Board finds that hypertensive cardiovascular disease is included among the presumptive conditions listed with the addition of hypertension to the list of conditions subject to service connection on a presumptive basis.

Therefore, as the evidence indicates that the Veteran had a diagnosis of hypertensive cardiovascular disease, and as exposure to herbicides is conceded, entitlement to service connection for cause of death, on a presumptive basis as a result of herbicide exposure, is warranted. See 38 C.F.R. §§ 3.307, 3.309, Honoring our PACT Act of 2022, Pub. L. 117-168 (2022). Accordingly, the claim is granted.

 

 

J. Nichols

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Lauritzen, 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.