Citation Nr: 1749461 Decision Date: 11/01/17 Archive Date: 11/13/17 DOCKET NO. 15-20 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1942 to August 1962. The Veteran died in October 2009. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office Regional Office (RO) in Philadelphia, Pennsylvania. In March 2016, the Board reopened the Appellant's claim for service connection for the cause of the Veteran's death and remanded the underlying service connection claim for additional development. The case has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a) (2) (West 2014). FINDINGS OF FACT 1. The Veteran died in October 2009; the cause of death was determined to be encephalopathy, congestive cardiomyopathy, and coronary artery disease (CAD). 2. At the time of the Veteran's death, he was not service-connected for any disability. 3. The preponderance of the evidence is against a finding that the Veteran's cause of death was attributable to service, or any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. § 1110, 1131, 1310, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309, 3.312 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duty to notify was satisfied by letters dated April 2010, February 2014, and April 2016. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the duty to assist the Appellant has also been satisfied in this case. The Veteran's service treatment records, as well as all identified and available post-service medical records, including Hospice of Health First, William Childs Hospice House, Omni Health Care, Dr. K.N.M. treatment records, Holmes Regional Medical Center, Townsquare Medical records, Dr. S.D.R. treatment records, and Melbourne Medical Laboratory records, are associated with the claims file. Attempts were also made to obtain the Veteran's treatment records from the Social Security Administration (SSA); however, in August 2016, that agency indicated the requested records could not be forwarded and that further efforts to obtain such records would be futile, as there were no medical records. The Appellant has not identified any additional available, outstanding records pertinent to her claim. The Appellant was afforded a VA opinion in August 2016 and an addendum opinion in January 2017. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion is adequate to decide the case. The medical opinion is predicated on a full reading of the available service treatment records contained in the Veteran's claims file, considers all of the pertinent evidence of record, and is supported with a complete rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection The law provides Dependency and Indemnity Compensation (DIC) for a spouse of a veteran who dies from a service-connected disability. See 38 U.S.C.A. § 1310. A service-connected disability is one that was incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection for the cause of the 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. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a refutable presumption of service incurrence, such as cardiovascular disease, if manifested to the required degree within a prescribed period from the Veteran's separation from active duty; or one that is proximately due to or the result of, or aggravated by, a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.310(a). To constitute the principle 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). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran died in October 2009. His death certificate shows that the immediate cause of death was encephalopathy with congestive cardiomyopathy and CAD listed as underlying causes of death. At the time of the Veteran's death, service connection was not in effect for any disability, to include encephalopathy, congestive cardiomyopathy, and CAD. The Appellant nevertheless asserts that the Veteran's causes of death diagnoses were incurred in service. The Appellant, through her representative, argued in a December 2015 statement, that the Veteran's CAD was at least as likely as not due to the Veteran's in-service asbestos exposure. Additionally, in the May 2014 Notice of Disagreement, the Appellant's representative contended that the Veteran's death was related to disease caused by in-service radiation exposure. In the March 2015 Statement of the Case the RO conceded that the Veteran was exposed to asbestos and radiation in service. The question to be addressed in this case then is whether any of the Veteran's causes of death are related to his in-service experiences, and specifically his exposure to asbestos and radiation therein. Postservice private treatment records show diagnoses of and treatment for cardiovascular disorders. Treatment of cardiovascular disorders began in about 1998 with Dr. K.N.M. The records are silent, however, as to any opinions regarding the etiology of these disorders, and they do not reflect any treatment for or diagnosis of encephalopathy. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses of encephalopathy, congestive cardiomyopathy, or CAD. However, in July 1947 it was noted that the Veteran had findings of precordial pain and palpitations. In August 2016, a medical opinion was obtained to determine whether any of the Veteran's causes of death were related to his service, to include the July 1947 notation of precordial pain and palpitations. The VA examiner "provid[ed] a negative medical opinion." The examiner stated that his opinion was based on a review of the claims file, to include the Veteran's service treatment records and death certificate. He explained that although the Veteran's service treatment records showed precordial pain and palpitations in July 1947, a subsequent treatment record in February 1948 noted the following: I feel that his history, symptoms and findings tend to point to the diagnosis of amebiasis as suggested earlier, although no parasites were ever recovered from the stools; the subjective improvement after amebic drugs likewise supported that diagnosis. The VA examiner noted that there were no further complaints of precordial pain and palpitations following the above treatment, or evidence of a diagnosis or treatment of a heart condition while in service or within one year of separation from military service. For the question of whether any of the Veteran's death-causing disabilities were related to his in-service asbestos and radiation exposure, and any asbestos-related disorder, to include breast cancer and prostate cancer, the VA examiner stated he was "providing a positive medical opinion." He stated that his opinion was based on his review of the claims file, including his service treatment records and death certificate, as well as the Veteran's conceded in-service asbestos and radiation exposure, and a December 1989 radiologic chest study that showed minimal pleural and parenchymal changes which were consistent with early changes of asbestosis. The VA examiner then stated that in regards to other conditions, he was "rendering a negative medical opinion." He explained that there was no evidence the Veteran was exposed to radiation that exceeded the recommended guidelines while in service, and he was also unaware of any medical literature that would provide evidence that either asbestos or radiation exposure would predispose the development of spindle cancer of the right breast, prostate cancer, congestive cardiomyopathy, coronary artery disease, or encephalopathy many years, more than 45 years, after separation from military service. In January 2017, an addendum VA medical opinion was requested. It was noted that the August 2016 VA examiner had provided a positive opinion that confirmed the diagnosis of an asbestos-related lung condition that was seen in December 1989. However, as there were no lung conditions listed on the Veteran's death certificate, an opinion was sought as to whether the asbestos-related lung condition contributed to the Veteran's death. The addendum VA medical opinion was provided in February 2017, by the same examiner who provided the August 2016 medical opinions. He opined that the Veteran's death-causing disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that his opinion was based on a review of the claims file, to include the Veteran's service treatment records, postservice treatment records, and death certificate, which noted that the Veteran was 87 at the time of his death. The examiner stated that although he had previously rendered a positive opinion that confirmed the diagnosis of an asbestos-related lung condition that was seen in December 1989, he was unaware of any medical literature, nor was there was any supporting evidence in the medical records reviewed or in the death certificate, that would provide evidence that the asbestos-related lung condition would have predisposed the development of any of the conditions noted in the Veteran's death certificate. The Board finds that the August 2016 VA medical opinion and January 2017 addendum VA medical opinion were provided by a certified staff physician, were based on review of the entire claims file and included a rationale for the opinion; they have substantial probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Significantly, there is no competent evidence to the contrary; therefore, the August 2016 VA medical opinion and its January 2017 addendum opinion are persuasive. The Appellant's claim relating the Veteran's cause of death to his service, and his exposure to asbestosis and/or radiation therein, is not competent evidence, as she is a layperson and lacks the training to opine regarding medical etiology. The question of whether a disability of the brain and nervous system or cardiovascular system may be etiologically related to the Veteran's cause of death is one that is medical in nature and may not be resolved my mere lay observation. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (noting that a Veteran is not competent to diagnose carcinoma or relate it to service). Furthermore, the question of etiology is also medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Encephalopathy is a disease of the brain and nervous system. Congestive cardiomyopathy and coronary artery disease are diseases of the cardiovascular system. The record does not show that the Appellant has training or education in these medical fields and is not competent to report the cause of death. To the extent the Appellant has argued additionally that the Veteran should have been service-connected for prostate cancer and breast cancer, and that these conditions also contributed to his death, the Board notes that prostate cancer and breast cancer were not listed on the death certificate as primary or contributory causes of the Veteran's death. In fact, the Appellate has submitted statements to the effect that she has attempted to have the Veteran's death certificate amended to include the Veteran's radiation or asbestos related conditions (i.e. prostate cancer and breast cancer) as primary or contributory causes of death; however medical providers declined her request. See May 2015 VA Form 9; October 2015 Statements in Support of Claim. In light of the foregoing, the record does not contain probative medical evidence sufficient to establish a nexus between the Veteran's military service and cause of death. The most probative evidence of record does not show that the Veteran's encephalopathy, congestive cardiomyopathy, and CAD were incurred in, or aggravated by, active service. Service connection for the cause of the Veteran's death is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs