Citation Nr: 1648540	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  14-28 937	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death.


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel









INTRODUCTION

The Veteran served on active duty from May 1967 to May 1969, and his service awards and decorations included the Combat Infantryman Badge.  He unfortunately died in February 1993.  The appellant in this case is his surviving spouse.

This appeal to the Board of Veterans' Appeals (Board) is from August 2012 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

FINDINGS OF FACT

1.  The Veteran had service in the Republic of Vietnam during the Vietnam Era and was presumed to have been exposed to herbicides therein.

2.  A private cardiologist treated the Veteran for symptoms of ischemic heart disease in 1990, and ischemic heart disease was presumed to have been due to herbicide exposure in service.

3.  The death certificate shows that Veteran died in February 1993; the immediate cause of his death was cardiorespiratory arrest.

4.  Ischemic heart disease is causally related to in-service exposure to herbicide agents and contributed substantially or materially to cause the Veteran's death. 

CONCLUSION OF LAW

The criteria for entitlement to service connection for the cause of the Veteran's death are met.  38 U.S.C.A. §§ 1110, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.309, 3.312 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The appellant in this case seeks service connection for the cause of the Veteran's death.  38 U.S.C.A. § 1310.

Laws and Regulations Governing Cause of Death Claims

Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death.  To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability.  38 U.S.C.A. § 1310; 
38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997).

In order to establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death.  In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. Contributory cause of death is inherently one not related to the principal cause.  In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  38 C.F.R. § 3.312; Lathan v. Brown, 
7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).

Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  38 C.F.R. § 3.312 (c)(3). 

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. § 3.312 (c)(4). 

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2015).  Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366   (Fed. Cir. 2009).

The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for Veterans who have a disease listed in 38 C.F.R. § 3.309 (e), and who served on active duty in the Republic of Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a).  A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307 (a)(6)(iii).  

Relevant here, ischemic heart disease, to include coronary artery disease, was added to the list of diseases subject to presumption of service connection due to herbicide/Agent Orange exposure, effective August 31, 2010. 75 Fed. Reg. 53,202 (Aug. 31, 2010).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107 (b).

Analysis
 
The Certificate of Death shows that the Veteran died in February 1993 and the immediate cause of death was cardiorespiratory arrest.  At the time of his death, he had no adjudicated service-connected disabilities.

The appellant asserts that service connection for the cause of the Veteran's death is warranted based on the Veteran's exposure to Agent Orange in service.  She essentially asserts that the Veteran's ischemic heart disease contributed to his cause of death.

 The Veteran's service in Vietnam is undisputed.  His DD Form-214 reflects that he served in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicides.  38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  

The question then becomes whether the Veteran was diagnosed with ischemic heart disease in his lifetime.  In support of the claim, the appellant submitted an August 2012 statement authored by the Veteran's private cardiologist, W. H., M.D.  Such physician stated that he is currently a retired cardiologist but was previously a partner of a cardiology group in Lebanon, PA called Cardiovascular Medicine Specialists.  Dr. W.H. noted that when he was practicing medicine he had the opportunity to evaluate the Veteran for symptoms of ischemic heart disease and recalled performing a stress test on the Veteran around February 1990.  He also recalled that the stress test was abnormal with findings compatible with ischemic heart disease.  The physician explained that he does not still have the Veteran's medical records as they were discarded after 10 years of his death.  The Board accepts the Veteran's diagnosis of ischemic heart disease.  There is no medical evidence of record indicating that the Veteran was not diagnosed with ischemic heart disease.

The remaining question then becomes whether the ischemic heart disease contributed substantially or materially to cause the Veteran's death.  Significantly, in his August 2012 statement, Dr. W.H. stated that "[u]nfortunately he died of an event related to his ischemic heart disease on February [redacted], 1993.  It apparently was due to a heart attack and his death certificate stated cardiopulmonary disease was the cause of death."  There is no contrary opinion of record.  Accordingly, the Board finds that this evidence supports a finding that the Veteran's ischemic heart disease was a contributory cause of death.  38 C.F.R. § 3.312 (c).  

Based on this body of evidence, the Board finds that the weight of the evidence demonstrates that ischemic heart disease, which is related to in-service exposure to herbicide agents, contributed substantially or materially to the Veteran's death.  As such, resolving reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for the cause of the Veteran's death is granted.



____________________________________________
BRADLEY W.  HENNINGS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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