Citation Nr: 1314809 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 08-24 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection of the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on February 1977 to June 1977 and January 1986 to April 1994. He passed away in July 2005. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from February 2006 and November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In May 2012, the Board referred the case to the Veterans Health Administration ("VHA") for a medical opinion from a cardiologist concerning the cause of the Veteran's death. In July 2012 such an opinion was obtained; however, the Board again sought a VHA opinion from a medical expert in August 2012 and another opinion from a cardiologist was obtained and associated with the claims file that same month. In August 2012, the Board returned the opinion for clarification and in September 2012 such an opinion was obtained. However, the specialist indicated that he was unqualified to comment on 2 points of the Board's request. Accordingly, in October 2012 the Board again sought an opinion and in December 2012 a final VHA opinion was associated with the claims file. With respect to the claim on appeal, the Board notes that the RO characterized this issue in the above-referenced November 2007 rating decision and thereafter as an application to reopen a previously denied claim for service connection of the cause of the Veteran's death, due to the fact that this claim was previously denied in a final February 2006 rating decision. The Board notes, however, that in approximately April 2007 the appellant submitted additional service treatment records pertaining to respiratory distress and tachycardia dated in April 1992 and February 1994. These had not been associated with the Veteran's claims file at the time of the February 2006 rating decision and they are relevant in that they show that the Veteran had heart symptoms in service. Pursuant to 38 C.F.R. § 3.156(c)(1) (2012), the Board finds that, due to the newly submitted service records, the claim must be reconsidered on a de novo basis, as opposed to determining whether new and material evidence has been received to reopen previously denied claims. The issue has been recharacterized on the title page accordingly. FINDINGS OF FACT It is at least as likely as not that a disability of service origin, particularly emphysematous changes and/or anthracosis of the lungs, materially contributed to, and aided in the production of the Veteran's death. CONCLUSIONS OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for the Veteran's cause of death are met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Considering the favorable outcome detailed below, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Dependency and indemnity compensation may be awarded to a veteran's surviving spouse, children, or parents for death resulting from a service-connected disability. 38 U.S.C.A. § 1310; see also Hanna v. Brown, 6 Vet. App. 507, 510 (1994). To warrant 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. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). 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 otherwise be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). Where there are primary causes of death that by their nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, it would generally not 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) (2012). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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 claimant. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran died in July 2005. The Certificate of Death lists his immediate cause of death as massive fresh anteroseptal myocardial infarction, due to, or as a consequence of thrombotic occlusion of left coronary artery, due to, or as a consequence of atherosclerosis. It lists "overweight," emphysematous changes and anthracosis of the lungs as "other significant conditions" that contributed to death, but not resulting in the underlying cause." The Board notes that, at the time of the Veteran's death service connection was in effect for bronchial asthma, with a 30 percent disability evaluation and hiatal hernia with gastroesophageal reflux disease (GERD), likewise with a 30 percent evaluation. The appellant asserts that the Veteran's cause of death is related to his period of military service. She asserts that the Veteran's service-connected asthma contributed substantially and materially to produce death, particularly in that it led to the heart attack that killed him. She also asserts that his service in the Persian Gulf led to the emphysematous changes and anthracosis of the lungs noted on his death certificate and that these conditions contributed materially and substantially to his death. See e.g. October 12, 2007, statement from claimant. As noted above, there is a letter from the Veteran dated in March 1991 to the appellant regarding the circumstances of his service in the Persian Gulf, particularly Kuwait. Saliently, the letter documents the Veteran's report of "so much smoke from the [burning] oil wells." A review of his DD Form 214 confirms the late Veteran's service in the Persian Gulf. A review of the Veteran's service treatment records shows numerous complaints regarding the lungs. He was, on several occasions, assessed as having restrictive airway disease, bronchitis and pneumonia. He was ultimately discharged via a Physical Evaluation Board (PEB) due to his asthma, which first manifested in approximately December 1992, around the time he had overseas service in the Persian Gulf. His service treatment records also document a history of smoking 1/2 pack per day for 24 years (12 pack/years), and that he had quit smoking in 1991. There are no medical records, other than the death certificate, pertaining to the circumstances of the Veteran's death as it appears that his heart attack was unsuspected. Indeed, the Veteran passed away at the relatively young age of 49. In furtherance of attempting to substantiate the appellant's claim, the RO obtained medical records from Keesler Air Force Base. The records document continued treatment of the Veteran's asthma, as well as treatment for GERD. They also document episodes of tachycardia in April 1992 and February 1994. Also in pursuit of substantiating the claim, the RO obtained a medical opinion on the matter in January 2010. The opinion report notes that the claims file was reviewed for the purpose of obtaining an opinion on the cause of the Veteran's death. It reflects a past medical history of asthma, assessed in 1991, as well as hypertension, coronary artery disease/myocardial infarction, GERD, hypothyroid, dyslipidemia and pneumonia. It also documents the Veteran's prior history of smoking and the findings on his death certificate. The VA doctor concluded that it was less likely than not that the Veteran's cause of death was related to his service-connected bronchial asthma. In this regard, she explained that based on the available medical evidence, the Veteran had several known significant risk factors for coronary artery disease (CAD) and that the preponderance of medical evidence did not support that asthma was a proximate cause of CAD or an acute myocardial infarction (heart attack). She explained that asthma was not a predominant cause of emphysema and that asthma and emphysema were separate obstructive lung conditions. She also noted that emphysema was predominantly caused by primary or secondary smoking. Based on these factors, she concluded that there was no credible evidence of asthma contributing to the Veteran's death in any material way. In April 2012, the appellant's representative submitted a Written Brief Presentation in support of the claim. The representative noted the late Veteran's extensive service on foreign soil and that the service connection for bronchial asthma was in effect at the time of his death. The representative submitted that the condition contributed to the Veteran's death in that the condition "deprived and/or reduced the vital supply of oxygen to the heart and heart muscle, causing damage to the heart" and placing additional strain thereon, ultimately leading to the heart attack that resulted in his death. The representative also requested that another opinion be obtained as the January 2010 opinion was not provided by an expert qualified to address the medical questions at hand. As referenced above, the Board obtained a VHA expert opinion from a cardiologist in July 2012. The Board particularly sought opinions on the relationship between the Veteran's active service and the primary cause of death. The VA examiner was asked to address 3 etiological questions, namely: 1) whether it is at least as likely as not that the heart problems identified as the immediate cause of the Veteran's death (anteroseptal myocardial infarction, thrombotic occlusion of the left coronary artery and atherosclerosis) began in service, or were otherwise related thereto, to include the in-service findings of tachycardia; 2) whether it is at least as likely as not that emphysematous changes and/or anthracosis of the lungs began in or is related to the Veteran's active service, to include his service in Kuwait; and 3) whether it is at least as likely as not that service-connected disabilities of bronchial asthma and/or hiatal hernia with GERD and/or the medications prescribed for these conditions caused or materially contributed to the cause of death. The examiner was particularly requested to reference the appellant's contentions regarding bronchial asthma and oxygen deprivation to the heart. The examiner rendered negative opinions on each question, noting that he had reviewed the entire claims file. He stated that he concurred with the July 2010 report, noting that the Veteran had risk factors for CAD and the heart attack that resulted in death, particularly high blood pressure, abnormal lipids and cigarette smoking of long standing. He felt that these factors, alone, were sufficient to answer the question of the cause of death. The cardiologist also went on to explain the pathophysiologic mechanisms responsible for a myocardial infarction, noting that much had been learned about such over the past few decades. He noted that several decades prior, the general understanding was that a heart attack was caused by progressive narrowing of a coronary artery until it was completely blocked, and that historically, there was also a position that the lack of oxygen supply caused by an increased workload was responsible for a heart attack. However, he also noted that over the past few decades, more had been learned about how people have heart attacks and what causes them. Particularly, he explained that it was now understood that "plaque rupture" was the mechanism that caused heart attacks, He explained that such a rupture involved a tear in a blood vessel wall that led to a blood clot resulting in occlusion of the vessel and a myocardial infarction, which was what occurred in the Veteran's case. The examiner further detailed that "to be sure" there were instances in which people undergo procedures or have myocardial damage caused by an overwhelming load of stress on the heart. In this regard, he outlined that this was most commonly seen in operations where people go to surgery, have a fast heart rate, high blood pressure, experience stress in surgery and have had a prior narrowing of a coronary artery. He related on occasion these patients were found to have damage to the heart caused by an increase in the heart rate and blood pressure that exceeded the ability of the coronary arteries to provide adequate blood supply to the heart, although this was a rare occurrence. In regard to the question of tachycardia related to lung problems, the cardiologist noted that this issue was "relatively infrequent." He explained that the mechanisms of tachycardia could be related to the use of some of the stimulants that were required to open up the airways to improve breathing, but that these stimulants tended to also increase heart rate. He also stated that lack of oxygen could increase heart rate. Nevertheless, he noted that there was no evidence in the medical records that the Veteran suffered from "sufficient lung disease" to cause change to the right side of the heart that would lead to rhythm abnormalities and noted that far more frequently fast heart rates resulted from medications, lack of oxygen or poor conditioning. In regard to the question of how bronchial asthma, hiatal hernia, or GERD would contribute to the Veteran's death, the examiner stated that any possible contributions were "simply without precedent." He explained that there was no literature that would support any relationship between these factors and, moreover, that there was overwhelming evidence to support the plaque rupture mechanism as described in the Veteran's death certificate, as the cause of his death. As noted above, the Board sought another VHA opinion, which was obtained in August 2012. The opinion report notes that the claims file had been reviewed by a cardiologist, who was asked to address the possible complicating issues of asthma and chronic obstructive pulmonary disease (COPD) contributing to the Veteran's July 2005 death from a myocardial infarction. He noted that the Veteran had a fairly well documented history of reactive airways disease, asthma and COPD. In regard to tachycardia, the examiner noted that there was the question of whether his prior episodes of tachycardia were illustrative of prior heart disease and the effect of his lung disease on his heart. He explained that the occurrences of tachycardia were in the face of acute exacerbations of his lung disease, in which compensatory tachycardia was expected. The examiner related that besides these episodes, his heart rate was documented as being normal and that there was no evidence that he had any ongoing tachycardia or other effects of lung disease on his heart. He cited an EKG dated in 1998, which was completely normal, in support of this point. With respect to hypertension, he noted that the Veteran had a history thereof, which appeared to have been well-controlled with a small dose of HCTZ, a mild diuretic. He related that the Veteran had no history of diabetes and that he had an elevated total cholesterol and LDL, which was, however, also accompanied by a normal level of HDL, which some thought to be a negative risk factor. He also noted that the Veteran was found to be significantly overweight and that there was no comment on exertional chest pain or any concern prior do his demise from ischemic heart disease, and that the only chest pain was in relation to GERD. He noted that the death certificate was available for review, but that there were no records from the acute events related to the Veteran's death. He highlighted the fact that the death certificate documented that the Veteran's death was within minutes of his acute decompensation, which would suggest that his death was sudden and the result of an acute coronary occlusion, the most common circumstance of death associated with a myocardial infarction. In regard to the ultimate question posted, he stated that there was no known association of asthma as an independent risk factor for the development of coronary artery disease or an acute myocardial infarction. He further related that there was no evidence to suggest that an acute asthmatic decompensation was occurring in the immediate pre-infarction timeframe in the Veteran's case. He further explained, that even so, unless there was evidence of severe underlying heart disease in the presence of significant hypoxemia, then the consideration of any type of complicating or contributing factors would be irrelevant. Thus, he found no reason to support consideration of asthma or COPD contributing to the Veteran's acute myocardial infarction and death. In September 2012, the Board sought clarification of the August 2012 VHA opinion. In particular, the Board requested that the August 2012 expert address: 1) the likelihood that the heart problems identified as the immediate cause of the Veteran's death began in or were otherwise related to active service, to include the notations of tachycardia; 2) the likelihood that the emphysematous changes and/or anthracosis of the lungs began in or was/were otherwise related to service, to include his service in Kuwait; 3) the likelihood that the service-connected hernia with GERD caused or materially contributed to the cause of death; and 4) the likelihood that the medications prescribed to the Veteran for asthma and hiatal hernia with GERD caused or materially contributed to cause the Veteran's death. In late September 2012, the expert that authored the August 2012 opinion provided a clarifying addendum to his opinion. He explained that his comment of him "find[ing] no reason to support a consideration of [the late Veteran's] asthma or COPD contributing to his myocardial infarction and death" were to be interpreted as "less likely than not" regarding the issue of the relationship between the myocardial infarction and tachycardia. Likewise, he explained that he felt it less likely than not that any medications had any impact on the late Veteran's myocardial infarction. He offered no rationale for the conclusion concerning medications and related that he was unqualified to comment on points 2 and 3 regarding potential lung and gastrointestinal disease. Once again, the Board sought an expert opinion in October 2012. In particular, the Board sought opinions on 1) the likelihood that the emphysematous changes and/or anthracosis of the lungs began in or were otherwise related to service, particularly the late Veteran's service in Kuwait; 2) the likelihood that service-connected hiatal hernia with GERD caused or materially contributed to the cause of death; and 3) the likelihood that the medications prescribed for service-connected asthma and hiatal hernia with GERD caused or materially contributed to cause the Veteran's death. In December 2012, a VHA opinion was obtained. With respect to the first question posed, particularly whether it was more likely than not, at least as likely as not or less likely than not that the emphysematous changes and/or anthracosis of the lungs began in or were related to service, to include service in Kuwait, the examiner rendered a positive opinion concluding that it was at least as likely as not. In this regard, the pulmonologist explained that most likely the Veteran was exposed to oil fires in Kuwait that caused anthracosis and asthma. He also explained that asthma was a cause of emphysema, although the Veteran's smoking history certainly suggested there could have been another cause. With respect to the second question posed to the examiner, he concluded that it was less likely than not that the service-connected hiatal hernia with GERD caused or materially contributed to the cause of death. He explained that although GERD could make asthma difficult to control and result in the usage of more bronchodilators could have contributed to death, that this was "a stretch." Along these lines and with respect to the questions that any medications prescribed for asthma and hiatal hernia with GERD caused or materially contributed to the cause of the Veteran's death, he felt that the answer was "as likely as not." They explained that the albuterol that the Veteran used for the treatment of his asthma caused tachycardia which could increase myocardial oxygen demand and an increase in ischemia in a heart with a coronary occlusion. He did not believe that the medications used to treat GERD contributed to his death. Resolving all doubt in favor of the claimant, the Board finds that the evidence is at least in equipoise that the Veteran's death was substantially and materially contributed to by his service-connected asthma, as well as anthracosis of the lungs, which is of service origin. In this regard, it is salient to the Board that he developed asthma shortly after his return from service in Kuwait, which likely involved exposure to fumes and smoke from burning oil wells, as indicated by the aforementioned letter from the Veteran to the claimant. Moreover, although a history of smoking has been disclosed, the Veteran quit smoking in 1991, apparently before his assessment of asthma in 1992. His death certificate lists emphysematous changes and anthracosis of the lungs as significant conditions that contributed to death. These factors, coupled with the December 2012 VHA opinion, which indicates that it is at least as likely as not that anthracosis was incurred during the Veteran's service in Kuwait and that asthma resulted in emphysematous changes, indicates that the Veteran's lung condition, including asthma, emphysematous changes and anthracosis, are of service origin and substantially and materially contributed to the Veteran's death. Accordingly, the evidence is at least evenly balanced and the claim is granted. Gilbert, supra. In closing, the Board notes that other potentially service-related causes have been explored in the numerous VHA opinions outlined above, particularly the documented tachycardia, GERD, and medications taken for both GERD and asthma. However, the Board need not address these potential avenues for establishing service connection for the cause of the Veteran's death, as the evidence establishes that it is at least as likely as not that a lung disorder of service origin contributed substantially and materially to cause death. Along these lines, it is of particular significance to the Board that the Veteran was exposed to oil fumes during his service in Kuwait, that anthracosis and asthma have been found to be at least as likely as not related to exposure to these fumes and that anthracosis and emphysematous changes due to asthma have been found to be significant factors in contributing to causing death, as shown by the death certificate. Thus, despite the indications that the Veteran's cardiac event that led to his death is unrelated to service or service-connected disability, the claim is substantiated on these grounds and no other means need be substantiated or discussed. In sum, the evidence indicates that the Veteran's service in the Persian Gulf, particularly Kuwait, led to a debilitating condition of vital organs, namely the lungs, which contributed materially to bring about his death in July 2005. 38 C.F.R. § 3.312(c)(4) ORDER Entitlement to service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs