Citation Nr: 22028486 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 11-05 505 DATE: May 13, 2022 ORDER Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War era; exposure to herbicide agents during service has been conceded by VA. 2. Prior to his death, the Veteran was diagnosed with hypertension and epidemiologic evidence concludes that there is "sufficient" evidence of an association between hypertension and herbicide agent exposure. 3. It is at least as likely as not that the Veteran's cause of death is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran's death are met. 38 U.S.C. §§ 101, 1110, 1310 (2012); 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy during Peacetime and the Vietnam Era, from February 1963 to June 1966. He served in the waters off the Republic of Vietnam. In January 2008, the Veteran died, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. When the matter came before the Board most recently in October 2018, it was denied. Following another appeal to the United States Court of Appeals for Veterans Claims (Court), the Court entered its February 2021 Memorandum Decision setting aside the Board's decision and remanding the matter for action consistent with the terms therein. Laws and Analysis Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.5 (a)(1). A veteran's death will be considered as being due to a service-connected disability when the evidence establishes that the service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). In determining whether service connection for cause of death is warranted, the laws and regulations generally applicable to establishing entitlement to service connection for a disability apply. 38 U.S.C. § 1310. In this regard, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For a DIC claim based on cause of death, the first Holton requirement, "evidence of a current disability, will always have been met (the current disability being the condition that caused the veteran to die)." Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Appellant contends that the Veteran's in-service exposure to herbicide agents, which VA has previously conceded, resulted in hypertension that was either the principal or contributory cause of his death in January 2008. The Veteran's Certificate of Death indicates the immediate cause of death as cardiopulmonary arrest, with other significant contributing conditions including peripheral vascular disease (PVD) with gangrene of the right second toe, diabetes, and chronic obstructive pulmonary disease (COPD). Initially, and as noted above, the Board finds that the Veteran was exposed to herbicide agents during service as a result of serving in the Republic of Vietnam. VA has confirmed his exposure. Next, the Board finds that the Veteran was diagnosed with hypertension during his lifetime. See January 2008 Vascular Testing Clinic note; see also 2008 VA treatment record. VA regulations do not list hypertension as a presumptive disability associated with herbicide agent exposure. This however does not preclude him from establishing entitlement on a direct incurrence or other basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). However, in November 2018, the NAS upgraded the relationship between hypertension and herbicide exposure from limited/suggestive to "sufficient," indicating that "there is enough epidemiologic evidence to conclude that there is a possible association" between hypertension and herbicide exposure. See National Academies of Sciences, Engineering, and Medicine. 2018. Veterans and Agent Orange: Update 11 (2018). The Board notes that the NAS serves as an advisor on scientific matters and is comprised of experts in the given field. The Board finds the NAS upgrade highly probative. In sum, the Veteran had a current medical diagnosis of hypertension and he was presumed to have been exposed to herbicide agents in service. Moreover, as determined, the Board finds probative the epidemiologic evidence supporting a positive association between herbicide agent exposure and hypertension. The Board thus concludes that, at the very least, the evidence of a nexus is in equipoise. Accordingly, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria to establish service connection for hypertension are met. Accordingly, the Veteran's hypertension is now considered a service-connected disability. As it pertains to whether the Veteran's hypertension was either the principal or contributory cause of his death, the evidence includes a private medical opinion by P.C., M.D., of Avitus Health dated January 2022 (received February 2022). According to Dr. P.C., "medical literature is clear that hypertension is a significant risk factor for the development of PVD," and was "at least as likely as not the cause for his eventual development of [PVD] which was a direct cause of his death." However, while one of the articles cited, Smoking, lipids, glucose intolerance, and blood pressure as risk factors for peripheral atherosclerosis compared with ischemic heart disease in the Edinburgh Artery Study, does report an association between PVD and systolic blood pressure, it also indicates PVD is strongly related to lifetime cigarette smoking. Although Dr. P.C. acknowledges the Veteran had "other risk factors for the development of cardiovascular disease," including cigarette smoking and an inactive lifestyle, he concluded that, "studies have demonstrated that hypertension increases the relative risk of developing heart disease by almost 3-fold." Dr. P.C. also indicated that "there is no question that he [the Veteran] had a history of hypertension, PVD and an abnormal EKG within a week of his death." It was then opined that all of these conditions made it "as likely as not that his death was indeed from a cardiovascular cause." Dr. P.C. specifically stated that the Veteran had stage 2 hypertension snice at least 2004, likely causing his PVD, which was a "direct cause of his death." The Board finds the opinion from Dr. P.C. highly probative. Dr. P.C. reviewed the medical evidence of record, discussed the Veteran's medical history in detail, addressed relevant medical literature, and provided a medical opinion supported by a well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Continued on Next Page In light of the above, the Board concludes that the evidence is at least in relative equipoise regarding the claim of service connection for the cause of the Veteran's death. Resolving doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. 38 C.F.R. § 3.102. Romina A. Casadei Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, 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.