Citation Nr: 1616895 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 13-34 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1982. He died in March 2012. The appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. Jurisdiction over the appeal is currently with the VA Regional Office (RO) in Nashville, Tennessee. The appellant provided testimony at a September 2014 Board videoconference hearing; the hearing transcript is of record. The Board remanded the appeal in January 2015 to obtain outstanding VA treatment records. This was accomplished, and the Board finds that it may proceed with a decision on the appeal at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran died in March 2012. 2. At the time of the Veteran's death, he was service-connected for thyroiditis; a burn scar on the left chin; chronic gastritis; a burn scar on the left chest wall; a skin graft on the right thumb with flexion contracture, residual of a burn; and lumbosacral strain. 3. The Veteran's cause of death was due to acute respiratory distress syndrome, MRSA bacteremia with sepsis, and pneumonia. Pulmonary fibrosis and bradycardia with placement of a pacemaker contributed to the Veteran's cause of death. 4. The Veteran is presumed to have been exposed to herbicides in service. 5. The Veteran did not have a diagnosed ischemic heart disease at any time. 6. The Veteran's cause of death is not etiologically related to service. 7. Service-connected disabilities did not contribute substantially or materially to cause death, and did not aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court or CAVC) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. VA has met its duty to notify and assist the appellant in this case. In an August 2012 preadjudicatory letter, VA informed the appellant of the evidence necessary to substantiate claims for DIC benefits in accordance with Hupp, evidence VA would reasonably seek to obtain, and information and evidence for which she was responsible. The Veteran's service treatment records, service personnel records, certificate of death, VA and private treatment records, September 2014 Board hearing testimony from the appellant, and a VA medical opinion have been associated with the claims file. Outstanding VA treatment records were obtained pursuant to a January 2015 Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the Veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. The Board finds that the November 2013 VA medical opinion adequately addressed questions of whether the Veteran had a diagnosed ischemic heart disease and whether his cause of death was otherwise related to service or service connected disabilities based on the evidence of record. The Board finds that the opinion was based on a fully adequate medical history and the examiner included adequate reasons and bases for the opinion rendered. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. Accordingly, the Board finds that the duties to notify and assist the appellant in substantiating her claim have been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Laws and Regulations Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's causes of death (acute respiratory distress syndrome, MRSA infection with sepsis, pneumonia, pulmonary fibrosis, and bradycardia) are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) do not apply in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran, who had active service in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975 will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2015); 38 C.F.R. § 3.307(a)(6)(iii) (2015). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA has determined that a statistically significant association exists between exposure to herbicides and subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, non-Hodgkin's lymphoma, soft tissue sarcoma, Hodgkin's disease, porphyria cutanea tarda (PCT), multiple myeloma, acute and subacute peripheral neuropathy, prostate cancer, cancers of the lung, bronchus, larynx, trachea, Type II (adult-onset) diabetes mellitus, chronic lymphocytic leukemia, AL amyloidosis, Parkinson's disease, ischemic heart disease, and B-cell leukemias, such as hairy cell leukemia. See 38 C.F.R. § 3.309 (e). Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. Id at note 3. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). VA regulations specify that the last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307(a) (6)(iii). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). (CONTINUED ON NEXT PAGE) Cause of Death Analysis The Veteran served in the Air Force from March 1962 to March 1982. He died in October 2006. At the time of his death, the Veteran was service-connected for thyroiditis; a burn scar on the left chin; chronic gastritis; a burn scar on the left chest wall; a skin graft on the right thumb with flexion contracture residual of a burn; and lumbosacral strain. He had a combined 20 percent rating from April 1982. The appellant is seeking service connection for the cause of the Veteran's death which she claims is due to ischemic heart disease, due to Agent Orange exposure in Thailand and Vietnam. The Board finds that weight of the evidence shows that the Veteran's cause of death was due to acute respiratory distress syndrome, MRSA bacteremia with sepsis, and pneumonia. The Board finds that pulmonary fibrosis and bradycardia with placement of a pacemaker were contributory causes of death. VA treatment records dated in 2011 identify diagnoses of pulmonary fibrosis, bradycardia with pacemaker placement, hyperlipidemia, hypotension, hypothyroidism, and depression. Private treatment records from Franklin Woods Community Hospital, leading up to the time of the Veteran's death, show that he was admitted with diagnoses of atypical pneumonia with pulmonary fibrosis in February 2012. He was later found to have MRSA bacteremia. He developed acute respiratory distress syndrome during his hospitalization in addition to interstitial pulmonary fibrosis. A past medical history of bradycardia was noted in the record, and was noted in an echocardiogram. The Veteran's death certificate lists his immediate cause of death as acute respiratory distress syndrome with an onset of days to hours prior to death; due to or as a consequence of MRSA bacteremia with sepsis with onset of days prior to death; due to or as a consequence of pneumonia with pulmonary fibrosis with an onset of weeks prior to death. Other conditions contributing to the Veteran's death were listed as pulmonary fibrosis and bradycardia with pacemaker. The Board finds that the combination of private treatment records leading up to the Veteran's death and his death certificate, provide probative evidence with regard to assessing the Veteran's cause of death. The appellant contends that the Veteran's cause of death was due to ischemic heart disease caused by Agent Orange exposure in Thailand and Vietnam. She testified during a November 2014 Board hearing that she married to the Veteran in April 1963 and, thus, had first-hand knowledge with regard to what units he was assigned to. She contends that the Veteran had duties on the flight line at the Korat Air Force Base in Thailand, and that his duties on the flight line placed him at the perimeter of the base. She also reported that he flew 105 missions over Vietnam as a flight engineer, and indicated that out of 105 missions, his duties as an engineer probably required him to set foot on soil in Vietnam to fix problems with the planes. The Board finds that the appellant is credible, and service personnel records tend to confirm the appellant's statements and show that the Veteran was stationed at the Korat, Royal Thai Air Force Base in Thailand from October 1968 to May 1969 during the Vietnam War. While service personnel records identify multiple temporary duty assignments in 1970 under a Foreign Service Summary, locations of such assignments were not indicated. Significantly, service personnel records also show that the Veteran flew numerous combat missions totaling 1145.5 hours in Vietnam, and thus, tend to confirm service on the ground in Vietnam. Resolving the benefit of the doubt in the Veteran's favor on this matter, the Board finds that the Veteran's combat missions involved actual duty in the Republic of Vietnam. Thus, the Veteran is presumed to have been exposed to herbicides in service. While Veteran is presumed to have been exposed to herbicides in service, VA regulations do not identify a presumption for the Veteran's primary cause of death due to acute respiratory distress syndrome, MRSA, or pneumonia, or for contributory causes of death due to pulmonary fibrosis and bradycardia under 38 C.F.R. § 3.309 (e). See 38 C.F.R. § 3.309 (e); 68 Fed. Reg. 27,630 (May 20, 2003). Additionally, as the Board will discuss in more detail below, the weight of the evidence does not establish that the Veteran was diagnosed with an ischemic heart disease to warrant presumptive service connection under 38 C.F.R. § 3.309 (e). The Board finds that the Veteran did not have a diagnosed ischemic heart disease at any time. VA and private treatment records do not identify a diagnosis of ischemic heart disease. VA treatment records dated in 2011 show that the Veteran had a diagnosis of bradycardia with the placement of a pacemaker in 2007. Pulmonary fibrosis was diagnosed by a CT scan in 2009. The appellant contends in November 2014 Board hearing testimony that the Veteran had a prolapsed valve for which a pacemaker was placed. She contends that this heart condition was ischemic heart disease. A November 2013 VA opinion directly addressed the question of whether the Veteran had a diagnosed ischemic heart disease. Based on a review of service treatment records and VA records and private treatment records, the VA examiner opined, with a very high degree of medical certainty, that Veteran did not warrant a diagnosis of ischemic heart disease. In providing this opinion, the VA examiner discussed findings from an EKG preformed at the time of the Veteran's discharge from service, and noted that VA and private treatment records were completely silent for any history of coronary artery disease, myocardial infraction, or chest pain or angina type symptoms. The Board finds that the opinion as to the Veteran's diagnosis is adequate as it is based on the examiner's own medical expertise and an accurate review of the medical evidence of record. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Insomuch as the appellant has attempted to establish a diagnosis of ischemic heart disease and a nexus between such diagnosis and the Veteran's service through her own lay assertions, the Board finds that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis of ischemic heart disease, falls outside the realm of common knowledge of a lay person, particularly where such a diagnosis has not been identified in VA or private treatment records. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board finds, therefore, that the appellant has not provided competent evidence with respect to the Veteran's diagnosis or its etiology. Accordingly, the Board finds that the weight of the evidence does not establish a diagnosis of ischemic heart disease at any time. As the cause of the Veteran's death is not included in the above-indicated diseases associated with exposure to an herbicide agent, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309(e). Even though presumptive service connection is not warranted, the appellant is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee, 34 F.3d at 1042. The Board will, therefore, address whether service connection is warranted for the cause of the Veteran's death on a direct basis. The Board finds that the Veteran's cause of death is not etiologically related to service, to include herbicide exposure in service. Acute respiratory distress syndrome, MRSA bacteremia with sepsis, and pneumonia were shown by private treatment records and a death certificate to have an onset days prior to the Veteran's death, and there is no indication that these diagnoses were related to service. With regard to the Veteran's contributory causes of death, the record shows that pulmonary fibrosis was first diagnosed in 2009 and respiratory symptoms were not identified in service treatment records. The weight of the evidence shows that bradycardia was not incurred in service. The Veteran's October 1981 retirement examination shows that the Veteran had reported symptoms of pain or pressure in the chest on occasion since August 1980. August 1980 EKG results were reviewed at that time and were stated to be probably within normal limits. The Veteran reported mild discomfort of two to five seconds, and a few occasions of discomfort lasting approximately half-a-minute in duration. The Veteran did not receive treatment for the reported chest pain. An updated EKG was completed at the time of the October 1981 retirement and was stated to have a short P-R interval but was otherwise within normal limits with no change from previous EKGs. No diagnosis was rendered. The Board notes that the Veteran also had a diagnosis of hiatal hernia with gastritis at separation which were also productive of epigastric pain symptoms. While chest pain complaints were shown in service, no diagnosis of bradycardia was rendered based on two EKGs performed in service. The November 2013 VA examiner opined, based on an independent review of the EKG/cardiac treatment reports in service, that the Veteran's cardiac complaints in service were not an early manifestation of bradycardia which later required a pacemaker in 2007. The medical evidence of record does not otherwise tend to relate bradycardia to service. The November 2013 VA examiner also opined, based on a review of the record, that there was no information in service treatment records which indicates that the Veteran's fatal conditions of acute respiratory distress, pneumonia, pulmonary fibrosis, or symptomatic bradycardia were related to any events or complaints reported during service. The Board finds that the opinion is probative as it was based on a review of the record, to include specific reference to the relevant evidence of record. Additionally, the evidence of record does not tend to establish a nexus between the Veteran's cause of death and in-service herbicide exposure. While the appellant contends that the Veteran's heart disease is related to herbicide exposure, the weight of the evidence shows that the Veteran did not have ischemic heart disease at the time of his death, and the Board finds that the November 2013 VA opinion outweighs the appellant's lay assertions as to both the Veteran's diagnosis and its etiology. For these reasons, the Board finds that the Veteran's primary and contributory causes of death are not related to service. Finally, the weight of the evidence of record does not show that the Veteran's service-connected disabilities contributed substantially or materially to cause death, or aided or lent assistance to the production of death. In that regard, the November 2013 VA examiner opined, with a very high degree of medical certainty, that none of the Veteran's service connected conditions (thyroiditis, a burn scar of the left shin, chronic gastritis, a burn scar of the left chest wall, residuals of burn with skin graft of the right thumb with flexion contracture, and lumbosacral strain) caused or contributed to the Veteran's death. He reasoned that the Veteran's death was solely caused by the development of a completely unrelated acute respiratory distress syndrome condition, which was caused by his MRSA, pneumonia, and sepsis and was aggravated by his poor lung reserves, which was caused from his long standing pulmonary fibrosis. The VA examiner also opined, based on a review of private treatment records, that there was no evidence that his pacemaker was malfunctioning or that he had any symptoms of bradycardia in the days before his death. The weight of the evidence shows that the Veteran cause of death is not etiologically related to service. For these reasons, the Board finds that the preponderance of the evidence is against service connection for the Veteran's cause of death. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs