Citation Nr: 1324923	
Decision Date: 08/06/13    Archive Date: 08/13/13

DOCKET NO.  07-02 451	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Appellant, J.D., D.S.J.



ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran had recognized Philippine Guerrilla and Combination Service from October 1944 to April 1946.  The appellant is the Veteran's widow. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 

In March 2008, a videoconference hearing before the undersigned Veterans Law Judge was held. A transcript of that hearing is of record. 

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence.  


FINDINGS OF FACT

1. The Veteran's death certificate lists his immediate cause of death as cardio-respiratory arrest and congestive heart failure. 

2. At the time of the Veteran's death in November 1991, service connection was in effect for injury to muscle groups I, II, and III, right (major) shoulder, residual of gunshot wound (rated 30 percent disabling), and old fracture of the third and fourth ribs (rated 0 percent disabling); his combined rating was 30 percent. 

3. Cardiovascular disease and chronic renal failure first manifested many years following separation from service, and there is no persuasive evidence of a medical nexus between cardiovascular or renal disease and either service or the Veteran's service-connected disability. 

4. A disability of service origin did not cause or contribute substantially or materially to cause 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. §§ 1101, 1110, 1112, 1113, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

In the context of a claim for DIC benefits, § 5103(a) notice 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 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.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).  

While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice.  

Here, the VCAA duty to notify was satisfied by way of letters sent to the appellant in November 2005 and March 2006 that addressed the notice elements of a service connection claim and was sent prior to the initial RO decision in this matter.  These letters informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  The March 2006 letter provided the appellant with notice of what evidence and information was required to substantiate a DIC claim based on a previously service-connected condition.  However, neither the November 2005, nor the March 2006, letters contained a statement of the conditions for which the Veteran was service-connected at the time of his death.  However, a statement of the conditions for which the Veteran was service-connected at the time of his death was included in both the June 2006 rating decision and an October 2006 Statement of the Case (SOC), both of which were issued to the appellant and to both of which she provided a written response.  Thereafter, the appellant's claim was readjudicated, as reflected in a March 2007 Supplemental SOC (SSOC).  Therefore, any lack of notice pertaining to the first Hupp requirement is not prejudicial to the appellant's claim.

The October 2006 SOC provided the appellant with notice of the criteria to substantiate a cause of death claim based on a condition not yet service-connected, and the appellant responded to that SOC with her January 2007 substantive appeal.  Therefore, any lack of notice pertaining to the third Hupp requirement is also not prejudicial to the appellant's claim.

Next, VA has a duty to assist a claimant in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

In determining whether a medical opinion be obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the claimant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Significantly, of record are numerous medical opinions pertinent to the issue.  Furthermore, the appellant submitted a private medical opinion in support of the claim and she was afforded a Board hearing before the undersigned Veterans Law Judge in March 2008.  

Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  The Board notes that in a June 2013 letter, the Veteran's representative argued that pertinent service treatment records pertaining to the Veteran's in-service gunshot wound have not been associated with the claims file and there is no indication VA attempted to obtain them.  However, upon review of the record the Board finds that in February 1949 VA requested further service treatment records from the Philippine Army of additional treatment the Veteran may have received following the gunshot wound at a first aid station from May 2, 1945 to May 4, 1945 or at the Tagudin Base Hospital from May 4, 1945 to August 3, 1945.  In response to VA's request, the Philippine Army responded that in the event any such records had been created, they were either lost or destroyed, as a result of the war.  Therefore, the Board finds that appropriate efforts have been made to attempt to secure such records and that additional attempts would be futile.  Therefore, the appellant is not prejudiced by the Board's decision to proceed in this matter.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).




II.  Legal Criteria and Analysis

To establish service connection for the cause of a Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death.  For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related.  For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but, rather, a causal connection must be shown.  38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312.

Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability.  38 C.F.R. § 3.312(c)(2).  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).  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.  Id.

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.  38 C.F.R. § 3.312(c)(4).  In such a 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.  Id. 

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  The appellant prevails in either event.  However, if the weight of the evidence is against the claim, 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 assess the credibility and weight of all the evidence, including the medical and lay evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Turning to the merits of the claim, the basic facts are not in dispute.  The Veteran's death certificate indicates that he died on November [redacted], 1991 and that the cause of his death was cadio-respritory arrest and congestive heart failure.  At the time of his death, the Veteran was service connected for injuries to muscle groups I, II, and III, right (major) shoulder, residual of gunshot wound, rated as 30 percent disabling, and old fracture of the third and fourth ribs, rated as noncompensable.  As noted above, the Veteran's combined disability rating at the time of his death was 30 percent.

The appellant contends that the Veteran's cause of death was caused by his active service, to include his service-connected disability; or in the alternative, that his death was related to cardiovascular disease or chronic renal failure, which were incurred in or related to the Veteran's active service.  At her March 2008 Board hearing, the appellant testified that she met the Veteran in 1969 and that for as long as she had known him, she thought he had difficulty breathing.  She also testified that he had a heart attack sometime between 1969 and 1971, and that he had been hospitalized for heart problems in the late 1970s.  She further testified that the Veteran had told her that while he was on active service he suffered from heart problems and difficulty breathing.  

The Veteran's service treatment records (STRs) show that in May 1945 the Veteran sustained a through and through gunshot wound, which entered at the lateral portion of the infraclavicular space and exited at the mid portion of the medial border of the right scapula, fracturing the scapula at that point.  The STRs indicate that the Veteran suffered from weakness and the inability to lift the right upper extremity upward as a result of the gunshot wound.  

A review of the Veteran's April 1946 medical examination for release from active duty indicates a normal cardiovascular system, normal genitourinary system, normal chest X-ray, no varicose veins, and blood pressure of 120/80.  Also noted were moist rales in the upper portion of the right lung.  

An April 1962 VA outpatient clinic record notes that the Veteran was seen for complaints of residual pain in his right shoulder due to his in-service gunshot wound.  Chest examination revealed the following: fair and symmetrical expansion; no palpitation or percussion; vesicular breath sounds with no impairment; and no rales.

A May 1980 private medical certificate indicates that the Veteran was seen for complaints of an increase in his symptoms related to the residuals of his in-service gunshot wound.  At that time his heart and lungs were noted to be "apparently normal" and his blood pressure was noted to be 130/90.

The report of a September 1980 chest X-ray notes that while the lung fields were essentially clear, the heart was in the upper limits of normal and there was evidence of left ventricular prominence.  

In an April 2006 letter, Dr. F. P., certified that the Veteran had received inpatient treatment at Bethany Hospital in San Fernando City, La Union, Philippines, from September 15, 1989 to September 28, 1989.  During that time he was treated for diagnoses of acute myocardial infarction, essential hypertension, and chronic renal failure.  As noted above, the record reflects that the Veteran died on November [redacted], 1991.  His cause of death, as indicated by his death certificate, is cardio-respiratory arrest and congestive heart failure.  

In a March 2008 medical opinion, provided at the request of the appellant, Dr. J.I.Q. stated that he reviewed medical records that had been provided to him and noted that the Veteran had died on November [redacted], 1991 of cardio-respiratory arrest and congestive heart failure.  Dr. J.I.Q. also noted that the Veteran had a diagnosis of chronic renal failure, and he opined that his cause of death, combined with the chronic renal failure, points to a thrombotic event that had begun before symptoms were seen or manifested.  Dr. J.I.Q. stated that arteriosclerosis, which is listed as a chronic disease, is caused by the formation of thrombi, and that "[f]ormation and progression of thrombi to a disease is difficult to determine but a factor of increase[d] formation is stress of the body during times of war."  Dr. J.I.Q stated that it was possible that such illness was present during the Veteran's active service, but without his service medical records such a possibility could not be ruled out.  

Here, the Board notes that medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence.  Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993).  Additionally, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

In this case, it is indicated that Dr. J.I.Q. has not performed a complete review of the claims file, which is evidenced by the fact that his conclusion, that the Veteran's cause of death combined with his diagnosis of chronic renal failure indicated a thrombotic event which led to arteriosclerosis, is not supported my any evidence of record.  Additionally, the Board notes that the Dr. J.I.Q's opinion that "it was possible such illness was present during the Veteran's active service" is speculative, and therefore cannot be the basis of a grant of service connection.  Therefore, as Dr. J.I.Q's opinion was based on a complete review of the claims file resulting in medical opinions which are not supported by the evidence of record, and his opinion regarding service connection is speculative, the Board finds the opinion is inadequate and is not probative evidence in this matter

In April 2012 the Board requested a file review and an expert VA medical opinion to determine whether the Veteran's cause of death was related to his active service, to include his service-connected right shoulder gunshot wound disability with fourth rib fracture.  In accordance with the Board's request, in a May 2012 opinion, Dr. T.B., Chief of Staff of the Butler, Pennsylvania VA Medical Center, opined that the Veteran's cause of death, cardiopulmonary arrest secondary to congestive heart failure, was the result of chronic ischemic heart disease, and that there was no relationship between his development of ischemic heart disease and his active service from 1944 to 1946.  He further stated that he found the statements made by Dr. J.I.Q to be of suspect validity and to lack an understanding of pathophysiology.  Dr. T.B. explained that the most common cause of congestive heart failure was chronic ischemic heart disease, and that a number of factors, both genetic and lifestyle-mediated, contributed to its progression.  He explained that the process of ishemic heart disease leading to congestive heart failure typically occurred over decades.  Dr. T.B. went on to explain that there was no known cause or connection between service in the military during World War II and the eventual development of ischemic heart disease with subsequent congestive heart failure and cardiopulmonary arrest; nor was there any known relationship between gunshot wounds to upper extremities (right or left) and the development of ischemic heart disease or congestive heart failure.  Dr. T.B. noted that the Veteran's medical records indicated that he had suffered at least one, but possibly more, heart attacks or myocardial infarctions in the 1970s/1980s, but that there was no information regarding his smoking status, lipid status, family history, or dietary status.  

The Board notes that the appellant, through her representative, argued, that the May 2012 VA medical opinion was inadequate, as it was unclear from the opinion as to whether Dr. T.B. conducted a review of claims file prior to formulating his opinion.  Additionally, the appellant argued that the opinion was inadequate as Dr. T.B. did not provide a sufficient explanation of rationale for his conclusion that there was no known connection between service in the military during WWII and the eventual development of ischemic heart disease with subsequent congestive heart failure and cardiopulmonary arrest, in that he did not provide any information as to what authority he relied on to reach this conclusion.  Finally the appellant argued that Dr. T.B.'s opinion was inadequate as he failed to address whether Veteran's septicemia secondary to his gunshot wound suffered during his active service may have been related to the heart disease that caused his death.  

In September 2012 the Board requested a file review and a new expert VA medical opinion to determine whether the Veteran's cause of death was related to his active service, to include his service-connected right shoulder gunshot wound disability with fourth rib fracture.  Additionally the examiner was asked to indicate whether there was any evidence that sepsis was caused by his in-service gunshot wound, and whether any such sepsis would have caused or aggravated the Veteran's ischemic heart disease.  In accordance with the Board's request, Dr. C.H., of the William S. Middleton Memorial Veterans Hospital, provided the requested medical opinions.  First, he opined that given the length of time between the Veteran's ischemic heart disease event and his in-service gunshot wound resulting in his service-connected disability, there was minimal to no likelihood that the two events were linked, or even remotely connected.  Dr. C.H. explained that such a connection was theoretical at best and not supported by epidemiological or evidence-based medicine.  Dr. C.H. went on to explain that known cardiac risk factors included age, tobacco use, hypertension, diabetes mellitus, male gender, and dyslipidemia; and that trauma, especially non-cardiac trauma, had never been a proven risk factor or an exacerbating condition for ischemic heart disease.  Dr. C.H. noted that on review of the claims file, there was no documentation of any cardiac trauma associated with the right sided in-service gunshot wound.  Further, Dr. C.H. noted that the Veteran's ischemic heart disease occurred well after the in-service trauma to the ride side of the chest.  Dr. C.H. stated that there was no evidence in the medical literature that suggested such a remote injury could have any impact on the Veteran's cardiac risk factors or the heart disease itself.  

Second, Dr. C.H also provided an opinion regarding whether sepsis was caused by his in-service gunshot wound, and whether any such sepsis would have caused or aggravated the Veteran's ischemic heart disease.  Upon review of the claims file, Dr. C.H. noted a September 1979 medical record indicating the Veteran had been treated for cellulitis complicated by sepsis on his right shoulder after carrying bamboo, which he noted was 12 years prior to his death.  Dr. C.H. noted that the September 1979 medical record contained no mention of cardiovascular or respiratory involvement in the setting of the Veteran's acute infection and no evidence was provided to suggest the Veteran suffered an acute coronary event or congestive heart failure.  Dr. C.H opined that the Veteran's cellulitis with sepsis would have more likely than not occurred regardless of the right shoulder gunshot wound scar.  Dr. C.H. explained that the skin, regardless of the prior injury, could become infected given the exposure of the "bamboo branches unintentionally cut long...causing frictions and bruises."  He opined that the prior injury and scar DO NOT more likely than not represent a risk for or exacerbation of skin infection given this exposure.  Dr. C.H. noted the appellant's referral to an article relating sepsis to heart disease and explained that such a correlation was not applicable in this case as the Veteran's ischemic heart disease occurred well over a decade after the reported episode of sepsis and the article referenced by the appellant did not discuss long term cardiac events following an episode of sepsis, but rather discussed cardiac events during sepsis.  

In a January 2013 letter, the appellant, through her representative, argued that the October 2012 VA medical opinion was inadequate.  Specifically, the appellant noted that on his April 1946 separation examination, moist rales in the upper part of the right lung were present, but no heart disability was noted.  The appellant submitted medical research indicating that moist rales were a sign of heart failure and she argued that this information, combined with the March 2008 medical opinion from Dr. J.I.Q. who suggested that the Veteran's heart condition began during active service, indicated a medical opinion as to whether the Veteran's heart disability began during active service was necessary.  

In March 2013, the Board returned the claims file to Dr. C.H. and requested an addendum to his October 2012 opinion as to whether the moist rales identified at separation were evidence that a heart disability at least as likely as not had its onset during active service.  In accordance with the Board's request, Dr. C.H. opined that Veteran's heart disability did not at least as likely as not have its onset during active service.  Dr. C.H. explained that the isolated finding of rales does not itself suggest heart failure and certainly would not result in a diagnosis of a heart disability at the time of the examination.  Dr. C.H. noted that at the time of his April 1946 examination, the Veteran's blood pressure was normal (120/80) and his cardiovascular examination was normal.  He explained that a diagnosis of a heart disability was based on history, physical examination, and laboratory findings and that a clinical diagnosis required all three elements.  At the time of the April 1946 examination, the Veteran only had one element present, the moist rales.  Dr. C.H. explained that the normal cardiovascular examination and the normal extremity examination contradicted the hypothesis that the isolated area of "moist rales" suggested his heart disability began during active service.  Dr. C.H. further noted that on follow up examinations, such as the May 1962 VA examination, breath sounds were vesicular and not impaired and no rales were found.  

Upon review of the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted.  In this regard, the evidence of record does not show that the Veteran had cardio-respiratory arrest, congestive heart failure, or any heart disability as a result of his active service.  A review of the service treatment records shows that Veteran was not diagnosed with a heart disability during active service.  The Board acknowledges that on his April 1946 separation examination, moist rales in the upper portion of the right lung were present, but no heart disability, to include cardio-respiratory arrest and congestive heart failure, was diagnosed at that time.  In the March 2013 addendum opinion, Dr. C.H. explained that the presence of rales alone did not establish a diagnosis of heart disease, and that such a diagnosis was based on history, physical examination, and laboratory findings.  As the Veteran's blood pressure and cardiovascular examination were normal at separation, a diagnosis of heart disease was not warranted, regardless of the presence of moist rales.  Further, on subsequent examination in May 1962, rales were not present.  Therefore, as the Veteran was not diagnosed with a heart disability during active service, service connection for his cause of death on the basis that the disability leading to his death became manifest during service and continued since is not warranted.  

Further, the first postservice evidence of any heart or cardiovascular disability is the September 1980 chest X-ray, more than 34 years following separation from active service, which revealed the heart was in the upper limits of normal and showed left ventricular prominence.  The first documented medical evidence that the Veteran was suffering from renal problems is not until the April 2006 letter from Dr. F.P. certifying that the Veteran was treated for acute myocardial infarction, essential hypertension, and chronic renal failure in September 1989, more than 43 years following separation from active service.  Therefore, as there is no probative evidence of heart disease, cardiovascular disease, or renal disease within a one-year period after separation from active service, the presumptive service connection provisions of 38 C.F.R. §§ 3.307 and 3.309 are not applicable.  

Additionally, the Board acknowledges the March 2008 opinion from Dr. J.I.Q. suggesting that the Veteran's cause of death and his diagnosis of chronic renal failure caused a thrombotic event, which led to arteriosclerosis, and that such illness may have been present during service.  While the Board has already determined that this opinion is speculative and therefore, not probative evidence, the Board notes that neither the service treatment records, nor the postservice medical evidence of record shows that the Veteran was ever given a diagnosis of arteriosclerosis.  Therefore, considering and applying the chronic disease presumptions under 38 C.F.R. §§ 3.307 and 3.309 for arteriosclerosis is not warranted.  

Finally, the Board finds that there is no evidence that the Veteran's death was otherwise related to his active service, to include his service-connected disabilities.  As noted, at the time of his death, the Veteran was only service-connected for the injuries to muscle groups I, II, and III of the right shoulder and the old fractures of the third and fourth ribs, caused by his in-service gunshot wound.  The medical evidence of record indicates that there is no known correlation between cadio-respritory arrest and congestive heart failure, the Veteran's cause of death, and a remote gunshot wound to an upper extremity (right or left).  Specifically, in the October 2012 VA opinion, Dr. C.H. explained that non-cardiac trauma has never been a proven risk factor or an exacerbating condition for ischemic heart disease and that there was no evidence of record that the Veteran suffered cardiac trauma associated with his in-service gunshot wound.  

Further, the Board acknowledges that the appellant has argued that the Veteran's scar related to his service-connected disability made him more susceptible to developing sepsis in 1979, and that the episode of sepsis caused him to develop heart disease.  The only evidence the appellant has submitted in support of this argument is a 2007 article published by the American Heart Association indicating there is a link between sepsis and cardiac dysfunction.  In the October 2012 VA opinion, Dr. C.H. explained that the Veteran's episode of sepsis in 1979 was completely unrelated to his right shoulder scar, and even so, the relationship discussed in the 2007 article submitted by the appellant was not applicable in the Veteran's case, as the article discussed immediate cardiac dysfunction in patients with sepsis.  In the Veteran's case, he suffered from sepsis in 1979 and his fatal cardiac event was not until 1991, some 12 years later, and Dr. C.H. noted that there was no medical evidence suggesting a relationship between sepsis and heart failure later in time.  

Therefore, the Board finds that there is no evidence suggesting the Veteran's service connected disability caused or contributed to his 1979 case of sepsis, or even so, that such sepsis was related to his cause of death 12 years later.  Furthermore, the Board finds that the Veteran's service connected disabilities did not cause or contribute substantially or materially to the Veteran's cause of death.  

The Board has also considered the appellant's statements asserting a nexus between the Veteran's cause of death and his active service, to include his service connected disabilities.  The Board notes that she is not competent to provide a nexus opinion in the absence of credible evidence of continuity of complaints as she is a layperson without the specialized training necessary to address a complex question with respect to the Veteran's cause of death, and while she does cite to some supporting medical texts or treatises, the competent medical evidence of record has indicated that these texts are not pertinent to the Veteran's case.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In sum, there is no competent evidence of record that the Veteran's cardio-respiratory arrest or congestive heart failure was related to his active service, that the Veteran had a heart disability, cardiovascular disability, or renal disability that was present during active service or for many years thereafter; or that the Veteran's service connected disabilities caused or contributed substantially or materially to his death.  Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for the cause of the Veteran's death is not warranted.  


ORDER

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


____________________________________________
D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs