Citation Nr: 1303907	
Decision Date: 02/04/13    Archive Date: 02/08/13

DOCKET NO.  09-42 272A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide (Agent Orange) exposure.  


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

A. Nigam, Counsel



INTRODUCTION

The Veteran served on active duty from March 1959 to March 1963 and from May 1964 to May 1980.  He was a highly decorated veteran of the Vietnam War, and was awarded various combat-related medals, to include the Purple Heart award, the Vietnam Cross of Gallantry with Palm (1 Oak Leaf Cluster), the Combat Infantryman Badge, the Presidential Unit Citation, the Army Commendation Medal (1 Oak Leaf Cluster), and the Bronze Star Medal (2 Oak Leaf Clusters), among other decorations.  He died in December 2007, and the Appellant is his surviving spouse.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision, issued in August 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In February 2012, the Appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ) at the Houston RO.  A transcript of that hearing has been associated with the claims file.  

In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC for further development, to include providing the Appellant with appropriate notice addressing filing a claim for service connection for the cause of the Veteran's death, and obtaining a VA medical opinion.  Discussed below, the Board finds that there has been substantial compliance with the April 2012 remand instructions.  Stegall v. West, 11 Vet.App. 268 (1998) (holding that a remand by the U.S. Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet.App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet.App. 268 (1998) where there was substantial compliance with remand directives).  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  


FINDINGS OF FACT

1. The Appellant is the Veteran's surviving spouse.  

2. The Veteran died in December 2007, and the death certificate lists the immediate cause of death as acute respiratory failure and the underlying cause of death as acute emphysema.  The death certificate indicates that tobacco use contributed to the Veteran's death.  

3. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD), rated 30 percent disabling; Type II diabetes mellitus, rated 20 percent disabling; degenerative disc disease, lumbar spine, rated 10 percent disabling; bilateral hearing loss, rated 10 percent disabling; tinnitus, rated 10 percent disabling; pansinusitis, status post nasal polypectomy, rated 10 percent disabling; hypertension, rated 10 percent disabling; left lower extremity peripheral neuropathy, rated 10 percent disabling; right lower extremity peripheral neuropathy, rated 10 percent disabling; and shell fragment wound, left leg and knee, rated 0 percent disabling.  

4. The preponderance of evidence is against a finding that a disability of service origin or a service-connected disability caused or contributed to the Veteran's death.  


CONCLUSION OF LAW

The criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.300, 3.303, 3.307, 3.309, 3.310, 3.312 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: 

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);  

(2) the layperson is reporting a contemporaneous medical diagnosis, or;  

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

Duties to Assist and Notify

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein.  

In a May 2008 pre-adjudication letter, and in December 2009 and April 2012 post-adjudication letters, the RO/AMC informed the Appellant of the requirements needed to establish her claim of entitlement to service connection for the cause of the Veteran's death.  In Hupp v. Nicholson, 21 Vet.App. 342 (2007), the Court held that in a claim for benefits for the cause of the Veteran's death, VA's duty to notify under 38 U.S.C.A § 5103(a)  must 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 Dependency and Indemnity Compensation (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.  

In the April 2012 letter VA has satisfied the notice requirements outlined in Hupp.  Firstly, the RO/AMC notified the Appellant of the Veteran's service-connected disabilities.  Also, the RO/AMC notified the Appellant that to support her claim for service connection for the cause of the Veteran's death she was required to submit evidence showing a reasonable possibility that the condition that contributed to the Veteran's death was caused by injury or disease that began in service, or by a service-connected disability.  The Board finds that this notice fulfills the requirements of Hupp.  Therefore, all notification requirements pursuant to Hupp have been fulfilled and the Board may proceed with the adjudication of the claim for service connection for the cause of the Veteran's death.  

In the April 2012 letter, the Appellant was also provided with notice regarding disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  However, failure to provide this notice would not prejudice the Appellant.  Because the Board herein denies the claim for service connection for the cause of the Veteran's death, no effective date is being, or is to be, assigned.  Accordingly, there is no possibility of prejudice to the Appellant under the notice requirements of Dingess/Hartman.  

As noted, the case was remanded to the RO via the AMC in April 2012 for the purpose of providing the Appellant with appropriate notice regarding the claim of service connection for the cause of the Veteran's death, and obtaining a VA medical opinion.  The RO/AMC complied with the first directive by issuing the April 2012 letter, which informed the Appellant of the pertinent Hupp elements.  

VA has obtained a medical opinion with respect to the claim in April 2012.  Also, a VA medical opinion was obtained in June 2010, which addressed if the Veteran's service-connected pansinusitis and status-post nasal polypectomy contributed to, or hastened the Veteran's death.  Additionally, relevant VA and private records of the Veteran during his lifetime have been associated with the claims file, as well as his service treatment and personnel records.  The April 2012 VA medical opinion was obtained to determine if the Veteran had ischemic heart disease during his lifetime, and if so, to determine if ischemic heart disease caused or contributed to the Veteran's death, or had a material influence on accelerating it.  As explained below, the Board finds the June 2010 and April 2012 medical opinions to be adequate, competent medical evidence as to the relationship between the cause of the Veteran's death and his military service, or service-connected disability.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the Appellant's cause of death claim decided herein.  The Board additionally finds that general due process considerations have been complied with by VA, and the Appellant has had a meaningful opportunity to participate in the development of her claim.  Mayfield v. Nicholson, 19 Vet.App. 103 (2005), rev'd on other grounds, 444 F.3d 1328   (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2012).  

In Bryant v. Shinseki, 23 Vet App 488, 496-97 (2010), the Court held that the VLJ who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. § 3.103(c)(2).  At the February 2012 hearing, the undersigned VLJ and the Appellant outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim.  Overall, the hearing was legally sufficient and the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2011).  

The Merits of the Claim-Service Connection for Cause of Death

Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303.  When it is determined that a Veteran's death is service connected, with service connection determined according to the standards applicable to disability compensation, his surviving spouse is generally entitled to DIC benefits.  38 U.S.C.A. § 1310 (West 2002 & Supp. 2011); 38 C.F.R. § 3.5(a) (2012); see generally 38 U.S.C.A. Chapter 11.  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303.  

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden/Caluza element under 38 C.F.R. § 3.303(b).  Barr v. Nicholson, 21 Vet.App. 303 (2007); see Savage v. Brown, 10 Vet.App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet.App. 296, 302 (1999).  

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet.App. at 495-96; see Hickson, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intervening causes.  38 C.F.R. § 3.303(b) (2012).  However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012).  

For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f) (West 2002).  As noted, the Veteran is presumed by law to have been exposed to herbicides while in Vietnam.  

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. 
§ 3.307(a)(6).  The diseases that are associated with herbicide exposure for the purposes of the presumption are listed in 38 C.F.R. § 3.309(e).  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  

Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease to the list of diseases associated with herbicide exposure.  The new regulation specifically states that the term "ischemic heart disease" does not include hypertension."  38 C.F.R. § 3.309(e), Note 3 (2012).  The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See Notice, 67 Fed. Reg. 42600-42608 (2002).  

When a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  

The National Academy of Sciences (NAS) periodically undertakes studies to ascertain whether the diseases discussed by NAS should be added to the list of diseases that are presumed to be incurred or aggravated by service.  See Federal Register of May 20, 2003 (see 68 Fed. Reg. 27630).  

However, when the NAS does not find such a presumptive connection, the law provides that "presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."  38 C.F.R. § 3.303(d) (2012).  

Stated alternatively, the presumptive provisions and their underlying rationale as provided by NAS may not, by law, foreclose the establishment of direct service connection for the disorders that are not found to be presumptively linked to military service.  

For claims based on the effects of tobacco products received by VA after June 9, 1998, a disability or death will not be considered service connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service.  For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.  These provisions do not prohibit service connection if: (1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service.  For purposes of this section, "otherwise shown" means that the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or (2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§ 3.307, 3.309, 3.313, or 3.316; or (3) Secondary service connection is established for ischemic heart disease or other cardiovascular disease under § 3.310(b).  38 C.F.R. § 3.300.  

To establish service connection for the cause of the Veteran's death, the service-connected disability must be either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death.  38 C.F.R. § 3.312(b).  A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, or aided or lent assistance to producing death-e.g., when a causal (not just a casual) connection is shown.  38 C.F.R. § 3.312(c).  

Service-connected diseases or injuries 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 diseases or injury primarily causing death.  Where the service-connected condition affects vital organs, as distinguished from muscular or skeletal functions, and is evaluated as 100 percent disabling, debilitation may be assumed.  38 C.F.R. § 3.312(c)(3).  

There are primary causes of death that, 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, itself, of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4); Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992).  

In short, the Appellant is entitled to DIC benefits if the principal or contributory cause of the Veteran's death was (1) an already service-connected disability that caused or aggravated another disability, directly leading to the Veteran's death; or (2) a previously nonservice-connected disability that was in fact incurred or aggravated by service.  38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.310, 3.312.  

An appellant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise.  It is only when the weight of the evidence is against a claim that the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Appellant and the Veteran or on their behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed).  The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claims.  See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).  

The Appellant contends that the Veteran's death was related to his exposure to Agent Orange during service.  She has asserted multiple theories of entitlement on which to base the claim.  First, she has claimed that herbicide exposure weakened his heart and lungs.  During the Veteran's lifetime, Type II diabetes mellitus and hypertension were recognized as service-connected based on his herbicide exposure.  Second, in a Notice of Disagreement (NOD), received in September 2008, the Appellant argued that the Veteran's acute respiratory failure and acute emphysema were secondary to his service-connected pansinusitis and status-post nasal polypectomy.  Third, in the VA Form 9, Appeal to Board of Veterans' Appeals, received in November 2009, the Appellant argued that the Veteran had ischemic heart disease (related to his herbicide exposure) which led to his death.  Fourth, in a December 2009 statement, the Appellant also argued that the Veteran's service-connected Type II diabetes mellitus may have made it more difficult to fight off infection.  She indicated that repeated use of antibiotics can bring on "c. diff. (Clostridium difficile) and other infections, and that the Veteran needed constant antibiotics for his lungs and his chronic obstructive pulmonary disease, which made him more susceptible to infections that ultimately led to his death.  The Appellant noted that the Veteran was septic at the time of his death.  Finally, she has argued that the Veteran's service-connected PTSD caused him to hyperventilate during panic attacks, which exacerbated his chronic obstructive pulmonary disease and triggered episodes of shortness of breath, which led to his untimely death.  The Appellant testified that the Veteran first began to experience failing health 10 to 15 years prior to his death in 2007.  

The December 2007 death certificate indicates the immediate cause of the Veteran's death was acute respiratory failure, and the underlying cause of death was acute emphysema.   Significantly, the certificate also indicates that tobacco use contributed to the Veteran's death.  

At the time of the Veteran's death, service connection was in effect for PTSD, rated 30 percent disabling; Type II diabetes mellitus, rated 20 percent disabling; degenerative disc disease, lumbar spine, rated 10 percent disabling; bilateral hearing loss, rated 10 percent disabling; tinnitus, rated 10 percent disabling; pansinusitis, status post nasal polypectomy, rated 10 percent disabling; hypertension, rated 10 percent disabling; left lower extremity peripheral neuropathy, rated 10 percent disabling; right lower extremity peripheral neuropathy, rated 10 percent disabling; and shell fragment wound, left leg and knee, rated 0 percent disabling.  

The Board finds that the competent evidence of record does not show that the cause of the Veteran's death was related to his active service or to a service-connected disability.  The service treatment records are negative for any diagnosis of respiratory failure or emphysema.  The evidentiary record indicates that the cause of the Veteran's death is more likely attributable to his extensive, long-term tobacco use, as repeatedly established by the clinical characterization of the Veteran's lung disorder in the record.  Moreover, as will be discussed, any inservice asthma is unrelated to his causes of death and the Veteran did not have a diagnosis of ischemic heart disease prior to his death.  

When the Veteran was alive, he filed a VA Form 21-526, Veteran's Application for Compensation or Pension, which was received in June 1980, in which he requested service connection for asthma, among other conditions.  In November 1980, the RO denied service connection for bronchial asthma.  With specific regard to asthma, although it is acknowledged that such is listed on the Veteran's separation examination, there is no competent and credible evidence which links such to the Veteran's causes of death, and the Appellant has not argued otherwise.

A VA examination report, dated in July 1980, shows findings of nasal bogginess with nasal polyps; pan sinusitis, involving most of the sinuses; polypoid mass in the left frontal sinus; heart not enlarged, no murmurs; rhythm regular; and peripheral circulation good, bilaterally.  An accompanying radiology report, including PA and lateral chest X-ray results, and paranasal sinuses results, reveal findings of no evidence of significant intrathoracic disease; the heart within normal size and configuration; and findings suggestive of sinusitis associated with a polypoid lesion in the left portion of the frontal sinus.  

Private treatment records from "Dr. Bujanda," dated from 1997 to 2002, indicate that the Veteran was treated for pansinusitis, chronic and acute; chronic obstructive pulmonary disease; emphysema; acute sinusitis; lymphoma to the right thoracic area; well-controlled allergic rhinitis; pleural effusion in the left lung; allergic rhinitis and pharyngitis; bronchitis with allergic component; and hyperemic nasal mucosa.  Significantly, in a May 1997 treatment record, Dr. Bujanda assessed the Veteran with chronic obstructive pulmonary disease as a result of heavy smoking.  In a June 1997 report, Dr. Bujanda observed the Veteran's lungs were clear except for distal breath sounds as a result of emphysema secondary to heavy smoking, and again assessed the Veteran with chronic obstructive pulmonary disease as a result of heavy smoking.  Throughout this treatment, the Veteran was advised to give up smoking.  His heart was repeatedly characterized as normal, with regular rhythm, and without dysrythmias, murmurs, gallops or thrills present.  

VA treatment records, dated from 2000 to 2002, reveal the Veteran was repeatedly advised to quit smoking.  These records show the Veteran was prescribed nasal spray for polydipsia.  In 2000, he was treated for pneumonia and chronic bronchitis.  In 2002, he was diagnosed with chronic obstructive pulmonary disease, and examination of the chest revealed mild bilateral wheezing.  

A QTC examination, dated in June 2002, shows the Veteran had a history of being diagnosed with sinusitis in 1976.  The Veteran denied any injuries to his face or nose, and complained of difficulty breathing through the nose.  He also complained of thick, foul-smelling discharge from his nose.  The Veteran denied any allergic attacks, did not use a respirator, and denied any shortness of breath at rest, although he complained of shortness of breath after walking about one mile.  The Veteran denied requiring oxygen, but did use a nasal spray on a daily basis.  The examiner noted his condition never required hospitalization or bed rest.  This report reflects imaging findings of left maxillary sinusitis, and a diagnosis of sinusitis and pansinusitis chronic.  Examination of the heart indicated normal S1 and S2 regular with no abnormalities, and no murmurs or gallops appreciated.  

A September 2007 private heart clinic report by "Dr. Padula," shows a history of pericarditis, rule out constrictive pericarditis; sinus tachycardia; frequent premature atrial contractions and superventricular arrhythmia; history of heavy smoking; moderate risk factors for coronary artery disease; diabetes mellitus; and hypertension."  The Veteran denied any chest pain, but his shortness of breath had not changed.  Cardiovascular examination included findings of regular rhythm, distant heart sounds, and no murmurs or gallops.  Lung examination showed findings of rhonchi bilaterally.  A stress cardiolite, performed in August 2007, revealed findings of inferoapical ischemia.  An electrocardiogram performed in June 2007, revealed findings of normal sinus rhythm with first-degree arterioventricular blocked and premature atrial contractions.  An echocardiogram performed in June 2007, revealed findings of no significant valvulopathy and normal ejection fraction.  Dr. Padula indicated that the Veteran needed to undergo cardiac catheterization in view of a relatively large apical and inferior ischemia; however, the Veteran decided not to proceed with the cardiac catheterization.  

VA treatment records, dated in 2007, reflect findings of chronic obstructive pulmonary disease/bronchiectasis; questionable rheumatoid lung associated with a very active peripheral joint involvement related to rheumatoid arthritis; severe emphysema; pulmonary nodules; and dyspnea on exertion; oxygen-dependent chronic obstructive pulmonary disease.  

A pulmonary function test report, dated in March 2007, indicates findings of "severe obstruction, air trapping, normal diffusion."  In May 2007, the Veteran was taken to the emergency room and admitted to the "McAllen Medical Center" after presenting with difficulty breathing, chest congestion, and anxiety.  In a June 2007 report, Dr. Bujanda observed that the Veteran had not been seen in his office for the previous three years, and described the Veteran as a very noncompliant patient who did not follow instructions.  X-rays of the chest performed in conjunction with the report, revealed no evidence of a pleural effusion or any pneumothorax; the trachea was midline; the cardiac silhouette was within normal limits; emphysematous changes were seen with mild left basilar atelectasis changes noted; and mild bilateral bronchiectasis with findings consistent with mucoid impaction involving the small airways were also detected.  Dr. Bujanda advised the Veteran at the time of discharge that it was important for him to continue to better control his diabetes mellitus, and to use the insulin medications, to exercise, and to follow a diet, all with the hope to prevent further, more serious complications in the future.  

An October 2007 private treatment record shows findings of increased antero-posterior diameter chest, without intercostals retractions or deformities, and of lungs with diffusely scattered ronchi bilaterally with no end expiratory wheezes and no crackles.  Examination of the heart revealed regular rate and rhythm, no murmurs or gallops, and no pericardial rubs.  

In November 2007, the Veteran was again treated by Dr. Bujanda for chronic obstructive pulmonary disease with exacerbation secondary to emphysema due to heavy smoking in the past with acute and chronic respiratory failure.  A private diagnostic imaging report from "Rio Grande Regional Hospital," dated in November 2007, shows an impression of hyperexpanded and hyperlucent lungs with interstitial prominence mainly in the right base may represent a chronic lung disease.  A cardiology progress note from the Rio Grande Regional Hospital, dated in December 2007, reveals an impression of chronic obstructive pulmonary disease; atrial arrhythmias related to lung disease and high catecholamine state; no arterial fibrillation by telemetry; hypertension; and normal ejection fraction.  An echocardiogram from the same hospital, also dated in December 2007, reflects a diagnosis of chronic obstructive pulmonary disease exacerbation, respiratory failure, hypertension, and dyspnea.  The study reveals an impression of mitral valve normal excursion; sclerotic aortic valve with normal excursion; normal tricuspid valve; mild tricuspid valve regurgitation; left and right atria normal; left ventricle, normal systolic function; left ventricle hypertrophy; ejection fraction 60 percent; no regional wall motion abnormalities; right ventricle normal; moderate pulmonary hypertension; and pericardium normal.  

Private treatment records from "Lifecare Hospitals of South Texas," dated within weeks of the Veteran's death in December 2007, indicates findings of severe chronic obstructive pulmonary disease, hypercarbia; oxygen dependency; bronchiectasis; respiratory failure; hypoxemic-hypercarbic respiratory insufficiency; Type II diabetes mellitus, with uncontrolled blood sugars; metabolic acidosis, stable; hypertension, controlled; anxiety disorder, stable; decondition.  An X-ray report shows findings of marked chronic obstructive pulmonary disease, heart normal in size and configuration, aorta and other mediastinal structures in the midline.  A physician query form shows that the Veteran was treated for acute respiratory failure at the time of admission, to include dyspnea, chronic obstructive pulmonary disease and emphysema due to heavy smoking in the past.  

The Board finds the treatment records discussed above are highly probative as to the matter of the onset and etiology of the Veteran's emphysema.  Because these records were generated with a view towards ascertaining the Veteran's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value.  Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  

A June 2010 VA medical opinion reflects the claims file, including private and VA treatment records, and service treatment records was reviewed.  The examiner opined that the Veteran's death was less likely than not due to or a result of service-connected pansinusitis and status-post nasal polypectomy contributing to or hastening the Veteran's cause of death, which was acute respiratory failure and emphysema.  The examiner concluded that there was no plausible basis in the medical record for linking the in-service nasal polypectomy or pansinusitis to either the acute respiratory failure or the emphysema.  The examiner noted that hospitalization records, dated shortly before the Veteran's death, made no mention of either the status-post polypectomy or the pansinusitis.  The examiner also opined that the Veteran's death by acute respiratory failure and emphysema was less likely as not caused by or a result of service-connected diabetes mellitus or hypertension contributing to or hastening the Veteran's death.  The examiner explained that review of the hospitalization records in the days preceding the Veteran's death indicate that his death was overwhelmingly due to acute respiratory failure and emphysema.  The examiner concluded that the available medical records did not support a finding that service-connected diabetes mellitus or hypertension had any significant impact on the Veteran's death.  

A VA DBQ report, dated in April 2012, shows that, upon review of the claims file, the examiner opined that it was less likely than not that the Veteran had a diagnosis of ischemic heart disease prior to his death that was incurred in or caused by his military service.  The examiner explained that the Veteran's medical records revealed no diagnosis consistent with a diagnosis of ischemic heart disease, although a note was made of an abnormal cardiolite test.  The examiner noted that the Veteran refused further testing so no diagnosis was made.  The examiner observed that the Veteran had severe chronic obstructive pulmonary disease and a history of tobacco use, and concluded that this was the primary cause of his death.  The examiner cited the hospital summary on the admission in which he died, which indicated that the Veteran went into respiratory distress and the family refused intubation, and subsequently the Veteran went into cardiac arrest and died.  The examiner concluded that there was no diagnosis of ischemic heart disease, and ischemic heart disease had no affect on accelerating the Veteran's death.  

The Board accords the April 2012 opinion high probative value as to whether or not the Veteran had ischemic heart disease prior to his death that contributed to his death.  This is the only competent and probative evidence of record that addresses the clinical diagnosis of ischemic heart disease.  In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (... evidence in light of its inherent characteristics in its relationship to other items of evidence").  Thus, entitlement to service connection for cause of the Veteran's death is not warranted for ischemic heart disease on a presumptive basis.  See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Absent a challenge to the expertise of an examiner, the Board may assume the competence of VA examiners.  Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a Veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency).  

There is no medical evidence of record which relates any of the causes of the Veteran's death (emphysema, respiratory failure) directly to service.  With respect to a relationship between the causes of the Veteran's death and a service-connected disability, the only medical report which discusses the proposed etiological relationships is the June 2010 VA medical opinion, which clearly discounts any relationship between the Veteran's service-connected disabilities and his cause of death.  This opinion is supported by the clinical record from the time of the Veteran's death that generally indicates his service-connected disabilities were well-controlled, with the exception of his Type II diabetes mellitus.  

The Board finds the June 2010 medical opinion to be the only evidence of record that provides both clear conclusions and reasoned medical explanations that the Veteran's service-connected disabilities (to include diabetes mellitus) are unrelated to the cause of his death.  As noted, the VA examiner reviewed the claims file, including in-service and post-service medical records, and provided opinions with adequate explanations.  The Board accords this opinion great probative value.  The Board acknowledges the June 2007 report of Dr. Bujanda, which indicates that in the course of his lung treatment the Veteran was advised that it was important for him to continue to better control his diabetes mellitus with the hope to prevent further, more serious complications in the future.   An explanation was not provided.  Dr. Bujanda characterized the history of the lung disorder as chronic obstructive pulmonary disease with "chronic emphysema as a result of heavy smoking in the past," and did not specifically list Type II diabetes mellitus as a contributing factor to the lung pathology.  Ultimately, despite any references to complications (which were never specified), there is no evidence establishing that service-connected diabetes mellitus permanently aggravated his cause of death.

Finally, the Board finds that the death certificate itself, reflecting that tobacco use contributed to the Veteran's death, supported by the clinical record, which exclusively indicates that the Veteran's emphysema and chronic obstructive pulmonary disease were caused by his heavy smoking habit, is the most probative evidence as to the question of what caused his death.  This finding is supported by the April 2012 opinion, which also attributed the Veteran's cause of death to his chronic obstructive pulmonary disease and history of tobacco use, and by the private treatment records from Dr. Bujanda, which show findings that the Veteran's emphysema was related to his heavy smoking.  However, VA may only pay compensation benefits as authorized by law and implementing regulations.  Pertinent here is the decision by Congress with the agreement of the President, that for claims received by VA after June 9, 1998, service connection will not be granted on the basis that it is attributable to a veteran's use of tobacco products. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300.  

It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence.  See Owens v. Brown, 7 Vet.App. 429 (1995); Gabrielson v. Brown, 7 Vet.App. 36 (1994); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); Mariano v. Principi, 17 Vet.App. 305, 317 (2003) (observing that flawed methodology in creating medical report renders physician's opinion of "questionable probative value."); Sklar v. Brown, 5 Vet.App. 140, 146 (1993)(observing that a specialist's opinion as to a medical matter outside of his or her specialty to be given little weight).  

The lay statements of the Appellant are competent and credible evidence regarding the visible, or otherwise observable, symptoms of the Veteran's disabilities.  Washington v. Nicholson, 21 Vet. App. 191 (2007).  However, the statements of the Appellant are not competent to prove that the causes of the Veteran's death are related to service or to a service-connected disability.  Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician.  As she is not a physician, the Appellant is not competent to make a determination that that the causes of the Veteran's death are related to service or to a service-connected disability.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993); Barr v. Nicholson, 21 Vet. App. 303 (2007).  In the Appellant's case, while she has advanced various theories of entitlement upon which to base her claim, she has failed to provide supporting evidence in the form of medical treatise or medical opinion, to qualify her lay assertions.  Accordingly, the Board finds no competent evidence of record linking the causes of the Veteran's death to his service or to any service-connected disability.  Therefore, service connection for the cause of the Veteran's death is not warranted.  

The Board finds that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, and the claim must be denied.  In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the claimant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Appellant's claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).  


ORDER

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



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs