Citation Nr: 1515191 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 13-18 759 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to October 1969. He died on April [redacted], 2010. The appellant in this case is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. The Veteran died on April [redacted], 2010, of respiratory failure. The underlying causes of death were chronic obstructive pulmonary disease (COPD) exacerbations, and end-stage COPD. 2. At the time of his death, service connection was not in effect for any disabilities; COPD was not diagnosed until approximately 30 years after the Veteran separated from service. 3. The Veteran's respiratory failure, COPD exacerbations, and end-stage COPD were not etiologically related to any incident, illness or injury during active military service. CONCLUSION OF LAW The Veteran's death was not the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014), requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, medical evidence, or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). In a letter dated April 16, 2012, the RO notified the appellant of the information necessary to substantiate a claim for dependency and indemnity compensation (DIC), and of her and VA's respective obligations for obtaining specified different types of evidence. She was told that, for a claim of service connection, the evidence must show a causal relationship between the Veteran's death and an injury, disease or event in military service. She was advised of the various types of lay and medical evidence that could substantiate her claim. She was informed that at the time of the Veteran's death, service connection had not been considered for respiratory failure, COPD exacerbation, or end stage COPD. She was provided with 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). She was provided with information regarding effective dates. Therefore, the Board finds that the duty to notify was satisfied in this matter. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Under the VCAA, VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record includes available service treatment records, military personnel records, the Veteran's death certificate, private medical treatment records identified by the appellant, VA treatment records, and statements from the appellant. On April 27, 2012, the appellant submitted a VCAA notice response indicating that she had enclosed all remaining information or evidence that would support her claim, or that she had no other information or evidence to give VA in support of her claim. To date, she has not identified any other potentially relevant information or evidence. A VA medical nexus opinion has not been obtained in this matter; however, the Board finds that the duty to provide a nexus opinion has not been triggered. VA is obligated to obtain a nexus opinion in a claim of service connection for the cause of a veteran's death if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service-connected disability, and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007). Here, while the requirement that a disability "may be associated" with service is a "low threshold," the United States Court of Appeals for Veterans Claims (Court) has held that some credible evidence, such as continuity of symptomatology observable by a lay person, is required to meet that threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is no medical evidence that would meet this low threshold; nor is there any reported history of symptoms dating back to the Veteran's service that would indicate his cause of death may be associated with his military service. Rather, as will be discussed in more detail below, the relevant evidence of record attributes the Veteran's cause of death to his history of tobacco use, with a possibility of bacterial infection or asbestos exposure as underlying causes. The only evidence submitted by the appellant in support of a possible nexus between COPD and chemical exposures during service is a prior decision by the Board in a different case. As will be addressed in more detail below, that decision was based on facts different from this case, particularly, that the veteran in that case suffered from a specific genetic condition predisposing him to lung disease. That decision bears no weight in establishing a possible association between the Veteran's cause of death and in-service exposures. Additionally, as will be addressed below, there is sufficient medical evidence of record attributing the Veteran's cause of death to underlying causes other than in-service chemical exposure for the Board to render a decision in this case. Ultimately, the Board concludes that, in light of the evidence of record, there is no reasonable possibility that obtaining a nexus opinion on the Veteran's cause of death would assist in substantiating the claim, and a remand for the purpose of obtaining such an opinion would only result in further delay of this appeal. Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008). As such, the Board finds that the duty to assist has been met in this matter. II. Analysis Pursuant to 38 U.S.C.A § 1310, DIC benefits are paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A § 1310 (West 2014); Dyment v. West, 13 Vet. App. 141 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2014). The disability is the principal cause of death if it was "the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). It is a contributory cause if it "contributed substantially or materially" to the cause of death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c)(1). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether a veteran's death was service connected, the first element is always satisfied in that the current disability is the condition that resulted in the veteran's death. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed.Cir.1999). In addition, certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even though there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) (2014) are met. See 38 C.F.R. § 3.309(e) (2014). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. Diseases for which this presumption is granted are limited to AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; type II diabetes mellitus; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; Non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft tissue sarcoma. See 38 C.F.R. § 3.309(e). The Veteran died in April 2010. His immediate cause of death was respiratory failure. The underlying causes of death were COPD exacerbation and end-stage COPD. The appellant contends that the Veteran's COPD was the result of chemical exposure while stationed in the Republic of Vietnam. A review of the record indicates that the Veteran served in the Republic of Vietnam, and therefore is presumed to have been exposed to certain herbicides. As discussed above, the Veteran left active duty in October 1969. At the outset, the Board notes that neither respiratory failure, nor COPD are listed as diseases for which a presumption of service connection based on herbicide exposure may be granted. See 38 C.F.R. § 3.309(e). Therefore, a service connection for the Veteran's cause of death is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(e) (2014). However, as mentioned above, service connection may still be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). According to the Veteran's death certificate, the onset of his COPD was approximately 10 years prior to his death, roughly 30 years after separating from active military service. VA medical records indicate that, while the Veteran did not receive his primary health care through VA, he was in receipt of co-managed care through VA, to include home health aide services as well as some medical care, such as the prescription of at-home oxygen. A VA environmental examination note indicates that the Veteran was seen on August 10, 2006 for an Agent Orange examination. He reported being diagnosed with emphysema in 1991. He retired from his job in 2005 due to disability and required use of daily oxygen. He continued to smoke one pack per day. He was given a diagnosis of emphysema. A VA medical progress note dated August 23, 2006, indicates that the Veteran had a history of emphysema with oxygen dependency. He had prior hospitalizations for exacerbation of COPD. He was noted to be a longtime smoker, and also have a history of asbestos exposure. He was recorded as having a smoking history of 50 pack years. On October 4, 2007, the Veteran was seen as a follow up to a prior emergency room visit for shortness of breath. That note indicates that despite shortness of breath and exacerbations, the Veteran continued to smoke about one pack of cigarettes per day, and was exposed to secondary smoke from his spouse, the appellant, who also smoked. The Veteran and the appellant were counseled in regard to his smoking and how it counteracted any benefits from medication treating his recent exacerbations of COPD. A VA medical progress note dated February 5, 2008, shows that the Veteran was seen for follow up of COPD with oxygen dependency, secondary to significant tobacco use. He was counseled at that time regarding tobacco abuse and reported that he had not had any success with patches or Zyban in the past. A January 20, 2009, VA medical progress note states that the Veteran was post-hospitalization for end-stage COPD, but that the Veteran had refused advanced care. An August 18, 2009 VA medical progress noted indicates that the Veteran had been moved to Newark Nursing Home as his exacerbations of COPD were becoming very frequent. He continued to smoke about 2 cigarettes per day. Private medical records from viaHealth of Wayne, Newark Campus, indicate that in September 2008, the Veteran was admitted to the hospital with end-stage COPD. The Veteran was noted to still smoke a half a pack of cigarettes per day. Upon admission he was in moderate respiratory distress. In October 2008, the Veteran was readmitted (noted as one of multiple readmissions) with end-stage COPD and steroid dependent type II diabetes mellitus. At that time he was recorded as being a smoker. He was diagnosed with acute exacerbation of COPD that is end-stage, with exacerbations being recurrent. In November 2008, the Veteran was admitted with end-stage COPD that was steroid dependent. He was admitted with exacerbation of COPD, likely the cause of a bacterial infection of his lungs, organism unidentified at that time. Between December 6, 2008, and January 2, 2009, the Veteran was hospitalized for exacerbation of COPD. He was noted to have end-stage COPD and steroid dependency resulting in diabetes. In the prior year, his total hospital stay was 113 days. Prior to that admission, he experienced increased shortness of breath with productive coughing and copious purulent sputum. He was noted to smoke about a half a pack of cigarettes per day at home. Upon discharge, the attending physician suggested long-term nursing home care, but the Veteran refused, agreeing that he would stop smoking and avoid second hand cigarette smoke. On January 6, 2009, the Veteran was readmitted to the hospital with end-stage chronic obstructive lung disease with cor pulmonale. He was noted to have resumed smoking upon discharge four days earlier, becoming increasingly short of breath with leg edema that was also quite increased. A discharge note dated March 24, 2009 noted that the Veteran had frequent hospitalizations for COPD exacerbation, although the Veteran continued to smoke. Before that admission, he had been discharged just two days prior, but admitted to smoking 4 cigarettes in the interim. A discharge note dated April 6, 2009, indicates that the Veteran had a history of multiple hospital admissions for COPD exacerbations, most of them precipitated by smoking. At that time, the Veteran had been hospitalized for severe COPD exacerbation, acute on chronic respiratory failure, respiratory acidosis, and new onset rapid atrial fibrillation. He had been discharged on March 24, 2009, only to be readmitted the prior day having admitted to smoking 4-6 cigarettes in the interim. That report specifically diagnosed COPD exacerbation precipitated by smoking. On April 24, 2009, the Veteran was again admitted to the hospital for exacerbations of COPD. He was also noted to be dependent on steroids and multiple inhalers, nebulizers, theophylline, and at-home oxygen. The Veteran continued to smoke approximately 4 cigarettes per day. On April 28, 2009, the Veteran was discharged from the hospital. The discharge notation indicated that the Veteran has frequent hospitalizations for COPD exacerbations, but that upon discharge, he consistently continued to smoke cigarettes heavily, resulting in continued COPD exacerbations. The Veteran's death certificate includes a certification by a physician that tobacco use contributed to the Veteran's death. In light of the above evidence, the Board finds that service connection is not warranted for the Veteran's cause of death. While the appellant contends the Veteran's COPD was the result of herbicide exposure in the Republic of Vietnam, there is simply no medical evidence indicating that such an etiological link exists. Rather, the medical evidence of record indicates that the Veteran had COPD beginning roughly ten years prior to his death, and approximately 30 years after leaving service. There is no evidence showing a history of symptomatology that would indicate a connection. Further, the private and VA medical records available consistently attribute the Veteran's COPD exacerbations to his continued use of tobacco products and exposure to secondhand smoke after each release from the hospital. The physician attesting to the Veteran's cause of death also attributed tobacco to the underlying cause of the conditions. Other possible causes of the Veteran's respiratory issues include a bacterial infection in November 2008, and a history of asbestos exposure. However, a review of the Veteran's service treatment records and military personnel records do not show any treatment for or diagnosis of a bacterial infection in service, nor any type of asbestos exposure to which his cause of death could be etiologically linked. As such, the Board finds that there is no evidence of record showing that the Veteran's cause of death was etiologically linked to any in-service incident, illness, or injury, to include exposure to herbicides or dioxins. Although the appellant asserts that the Veteran's COPD was due to his exposure to herbicides and/or dioxins in service, the Board recognizes that etiology of dysfunction and disorder is generally a medical determination and must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In the present case, the appellant is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of the Veteran's COPD, especially in light of the Veteran's private physicians attributing his COPD exacerbations and respiratory difficulties to tobacco use, and the fact that the evidence fails to demonstrate any etiological nexus between the causes of death and herbicide exposure. See id. Further, while the appellant has submitted a copy of another decision by the Board in which a different veteran was granted service connection for emphysema and COPD due to chemical exposure, the Board notes that prior Board decisions are binding only on the specific case decided and therefore, that decision has no precedential value in the instant case. 38 C.F.R. § 20.1303 (2014). Additionally, the Board finds that the facts of that case differed significantly from those at issue in the present case, making any opinion relied upon in that case inapplicable here. In that case, the veteran suffered from Alpha-1 Antitrypsin Deficiency, a relatively rare genetic condition which predisposed him to, among other things, lung diseases. Here, the appellant has not submitted any evidence showing that the Veteran suffered from the same genetic condition which would make the medical opinion relied upon in that case at all probative in the present matter. As such, any consideration of that prior Board decision does not assist the appellant in the adjudication of this claim. For the foregoing reasons, the Board finds that the claim of service connection for the Veteran's cause of death must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs