Citation Nr: 1751159 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 09-02 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kurt Kudialis, Agent WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty in the Army from December 1965 to December 1967, with service in the Republic of Vietnam. The Veteran passed away in November 1994. At the time of his death he was not in receipt of VA compensation benefits. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By way of history, following a November 1998 Board decision that denied entitlement to service connection for the cause of the Veteran's death, the appellant submitted a petition to reopen the claim in February 2006, which was denied in a letter issued on September 19, 2006. Thereafter, she submitted another petition to reopen that was received on September 11, 2007, within one year of the September 2006 denial. The September 2007 petition was adjudicated in the May 2008 decision. However, in connection with her September 2007 petition to reopen, the appellant submitted medical opinions from two private physicians, which suggested that the Veteran's scleroderma may have been related to service. As set forth in 38 C.F.R. § 3.156(b) (2017), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. As the aforementioned opinions qualified as new and material evidence, the evidence must be considered as part of her February 2006 claim. See Roebuck v Nicholson, 20 Vet App 307, 316 (2006), see also Muehl v West, 13 Vet. App. 159, 161-62 (1999). In connection with her appeal, the appellant and her daughter testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2010. A transcript of that proceeding has been associated with the claims file. This case was remanded by the Board in July 2010, April 2012, and December 2014 for additional development. See Stegall v West, 11 Vet. App. 268 (1998). This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran died in November 1994. Scleroderma was certified as the immediate cause of death on his death certificate, with pulmonary fibrosis certified as an underlying cause of death. The appellant is his surviving spouse. 2. The Veteran had no diagnosis of scleroderma during service or within one year after his discharge from service. 3. At the time of his death, the Veteran was not service-connected for any conditions; however, the Veteran could have been service-connected for scleroderma. 4. There is at least an approximate balance of positive and negative evidence as to whether scleroderma incurred in or aggravated by active service, to include exposure to Agent Orange or other herbicides, contributed substantially or materially to cause the Veteran's death. CONCLUSION OF LAW Resolving doubt in favor of the appellant, a disability incurred in or aggravated by service caused or contributed substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for Cause of Death Of relevance to this case, service connection for certain chronic diseases, including scleroderma, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases do not include scleroderma. 38 C.F.R. § 3.309(e). As such, further consideration of the claim on a presumptive basis under the above provisions is not warranted. The Board notes, notwithstanding the foregoing presumptive provisions, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To warrant service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a) (West 2014). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. See 38 C.F.R. § 3.312(b) (2017). For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 . Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Veteran's death certificate reflects that he died in November 1994 of scleroderma, with pulmonary fibrosis also contributing to his death. The appellant contends that the Veteran's scleroderma manifested to a compensable degree within one year of separation from service. In the alternative, the appellant alleges that the Veteran's scleroderma was due to his in-service exposure to Agent Orange and other herbicide agents. In either case, the appellant believes and the evidence supports that the scleroderma substantially contributed to or materially hastened the Veteran's death. As an initial matter, the Board notes that the Veteran was not service-connected for any condition at the time of his death. Given that the Veteran was not service-connected for scleroderma it is necessary to determine whether service connection should have been established for such. The Veteran's service treatment records include complaints of sore fingers, stomach cramps, diarrhea, and coughing spell. Shortly after service, at a May 1968 VA examination, the Veteran reported abdominal cramping, epigastric burning, occasional watery bowel movements, a grainy feeling in the abdomen, coughing, and problems with his left knee. In addition, the appellant has credibly reported as to the Veteran experiencing joint, respiratory, and gastrointestinal symptoms during and immediately after service. A March 1976 private treatment record noted that the Veteran had a 2-year history of trouble walking and pain in his legs. The record noted a diagnosis of Raynaud's disease for 10 years. The Veteran had pain and swelling in the hands, wrists, knees, and ankles. He also had pain in the neck and shoulders. There also were noted problems with the lungs. At that time, his complaints were attributed to systemic lupus erythematosus (SLE) or rheumatoid arthritis. By May 1978, the Veteran was considered to have rheumatoid arthritis with related interstitial pulmonary disease, but a mixed connective tissue disease had not been excluded. The Veteran had continued swelling and tenderness in the hands and fingers, as well as problems with the shoulders. As noted above, the Veteran passed away in November 1994 from scleroderma and pulmonary fibrosis. A January 1995 letter from a private internal medicine physician noted treatment of the Veteran from June 1974 until his death. At the time of initial treatment, the Veteran had reported a 1-year history of lung problems and soreness in the extremities. Over the next 12 months he developed heart problems that totally debilitated him. The physician concluded that, "In view of his ex[]posure to Agent Orange, it is felt that it was causative for his medical problems and ultimate death." An August 2007 letter from a private physician who had treated the Veteran in the early 1980s noted review of the Veteran's medical history and concluded "that he did show early symptoms of scleroderma as his medical report shows in June of 1968." The physician clarified, "As you may know, scleroderma, a chronic connective tissue disease that is classified as one of the autoimmune rheumatic diseases, was rare and unknown at the time. He suffered from joint, respiratory and gastrointestinal symptoms to name a few. I will go on to say that [the Veteran] may have been misdiagnosed. It is my opinion that the symptoms described are more than likely attributed to scleroderma." A November 2007 letter from another internal medicine physician discussed a prior treatment record documenting Raynaud's disease from 1967. In addition, the record documented "clinical and biochemical evidence of the fact that he had chronic rheumatoid arthritis and overlap syndrome with scleroderma." The letter noted reports from the Veteran's widow that such symptoms began shortly after separation from service. The physician stated that based on the available evidence, "it appears to me that the symptoms described are most likely attributable to scleroderma. These symptoms evidently began as early as his release from the military." A February 2015 VA medical opinion concluded that the Veteran's scleroderma and/or pulmonary fibrosis were not caused by or the result of in-service exposure to chemical dioxins. The rationale was that scleroderma and/or pulmonary fibrosis were not presumptive diagnoses of Agent Orange exposure. In addition, there was no medical nexus establishing causality between the claimed conditions and service. Service treatment records evidenced that the Veteran was medically qualified to complete the term of his active service. The Veteran was not medically discharged from service. Current credible medical literature evidenced that scleroderma resulted from an overproduction and accumulation of collagen in body tissues. The body's immune system was an etiological factor in the development of scleroderma. The above rationale was based on review of the current credible medical literature. The opinions of the Veteran's private physicians were reviewed in detail. Full consideration of all pertinent and available medical facts was rendered. Multiple additional VA medical opinions have been determined to be inadequate in prior Board remands, based on the failure of the medical professionals to consider and adequately discuss the above private medical opinions. Based on the evidence of record, the Board finds that the Veteran's scleroderma can be attributed to his service. The evidence demonstrates that the Veteran was diagnosed with Raynaud's disease either in service or very shortly after separation from service. In addition, during service and within months of separation from problems the Veteran reported problems involving the hands, stomach, and lungs. Multiple medical providers have attributed these symptoms and his contemporaneous diagnoses of Raynaud's disease, rheumatoid arthritis, and pulmonary fibrosis to scleroderma. As has been noted, scleroderma was not a known disease at the time of the Veteran's separation from service and initial manifestation of symptoms and diagnoses. Based on these factors, multiple providers have concluded that these problems within one year of separation from service were actually manifestations of subsequently diagnosed scleroderma. The Board has requested multiple medical opinions to address these opinions and all prior opinions have been found to be inadequate. For the same reason, the Board finds the most recent VA opinion, from February 2015, to be inadequate. That opinion failed even to mention the prior private medical opinions finding that the Veteran's in-service and immediate post-service manifestations were actually the onset of scleroderma. As such, the most probative medical evidence of record indicates that the Veteran's scleroderma manifested to a compensable degree within one year of separation from service. Thus, giving the appellant the benefit of the doubt, the evidence supports that the Veteran could have been service-connected for scleroderma at the time of his death. In addition, the February 2015 VA opinion noted that the body's immune system was generally believed to be a causative factor in the development of scleroderma. The Board finds treatise evidence provided by the appellant's representative extremely significant in that these studies found evidence that dioxin exposure significantly impaired the body's immune system. Such evidence potentially contradicts the above VA opinion's conclusion that there was no association between Agent Orange exposure (which included dioxins) and scleroderma. (CONTINUED ON NEXT PAGE) In summary, the evidence shows that the Veteran could have been service-connected for scleroderma at the time of his death. Further, the only medical evidence of record unequivocally states that the Veteran's scleroderma was a substantial and material contributory factor in his death. As such, entitlement to service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs