Citation Nr: 1752815 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-14 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served his country honorably from May 1960 to March 1964 in the United States Navy. He died in December 2006. The Appellant is the Veteran's surviving spouse, and she is seeking dependency and indemnity compensation for the cause of the Veteran's death. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Appellant testified before the undersigned Veterans Law Judge during an October 2015 videoconference hearing. A transcript of this proceeding is associated with the claims file. The Board has remanded this case to the RO for additional development previously, most recently in March 2017. It has now returned to the Board for appellate review. Pursuant to the March 2017 remand, the RO obtained the requested VA medical opinion. Thus, the RO substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 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 December 2006. The sole cause of his death was atherosclerotic coronary artery disease (CAD). 2. At the time of his death, the Veteran was in receipt of service connection for bilateral hearing loss (rated as noncompensable, or 0 percent), tinnitus (rated as 10 percent disabling), and hemorrhoidal tags (rated as noncompensable, or 0 percent). 3. CAD was not incurred in service, did not result from a disease or injury incurred during service (to include conceded asbestos exposure), did not manifest to a compensable degree within a year of service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 1112, 1131, 1310, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's death certificate indicates that his immediate cause of death was atherosclerotic coronary artery disease (CAD). He also had been diagnosed with various lung conditions, including chronic obstructive pulmonary disease (COPD), prior to his death. Neither CAD nor COPD were service-connected at the time of the Veteran's death. During the October 2015 hearing, the Appellant attributed the Veteran's lung conditions to his asbestos exposure during service. She primarily asserts that such lung conditions, including COPD and pleurisy, contributed to his cause of death, CAD, by putting stress on his heart. See October 2015 hearing testimony. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided to the Appellant in the February 2009 statement of the case and will not be repeated here in full. The Board finds that service connection for the cause of the Veteran's death must be denied. The weight of the most probative, competent medical evidence is against a finding that the Veteran's sole cause of death, CAD, was incurred in service, resulted from a disease or injury incurred during service (to include conceded asbestos exposure), manifested to a compensable degree within a year of service, or was caused or aggravated by a service-connected disability. Initially, the Board notes that the RO properly conceded that the Veteran was exposed to asbestos during service based upon his military occupational specialty. The Board also observes that the Board's February 2016 remand suggested that the evidence of record at that time was in relative equipoise as to whether the Veteran's lung condition was related to such exposure. The 2017 VA examiner continued to find the Veteran's asbestos exposure did not cause COPD. As the Board previously noted, there are differing medical opinions of record as to the effect of the asbestos exposure on the Veteran's pulmonary condition, so reasonable doubt would be resolved in his favor. However, even if the Board conceded COPD was related in some way to the Veteran's asbestos exposure, that does not end the inquiry, as it would then need to be shown that his COPD caused or contributed to cause his death. It is on this basis that the Appellant's claim fails. The Board finds that the weight of the most probative, competent medical evidence is against a finding that his lung conditions (to include COPD) were either a primary or contributory cause of the Veteran's death by CAD. See 38 C.F.R. § 3.312. The sole cause of death noted on his death certificate was CAD. The field "conditions, if any, which gave rise to the immediate cause [of death]" were notably left blank. The Board affords great probative value to the July 2017 VA negative medical opinion. Indeed, the examiner competently found that it was less likely as not that the Veteran's pulmonary disease contributed substantially or materially to his death, combined to cause death, or aided or lent assistance to the production of death by CAD. The examiner competently found that the Veteran's COPD did not cause his heart disease. To the contrary, the examiner persuasively found, with "greater than 50% probability" - and with detailed references to relevant medical research and medical evidence of record - that the Veteran's CAD was in fact related to non-service-related risk factors, including decades of tobacco abuse, hypertension, hyperlipidemia, and a strong family history for heart disease. The examiner's concluding summary reiterated that the Veteran died due to his underlying CAD, he developed CAD because of the aforementioned risk factors, and COPD did not contribute to his death from CAD. The Board also affords great probative value to the negative medical opinion of the June 9, 2016 VA examiner finding that the Veteran's CAD was not likely etiologically related to his in-service exposure to asbestos. The examiner competently and persuasively reasoned that CAD is not a known complication of asbestos exposure, with reference to pertinent medical research. The examiner also referenced the Veteran's multiple risk factors for CAD, including heavy smoking, family history, hypertension, and hyperlipidemia, and explained that these are well-established risk factors that are likely etiologically related to the development of CAD. The Board acknowledges the references to chest pain and respiratory symptoms in the Veteran's service treatment records. See, e.g., April 1963 notes. However, the Board finds that he was not diagnosed with or shown to have a chronic cardiovascular condition (including CAD) at any time during service. The Veteran was diagnosed with bronchitis and a viral flu, as opposed to a chronic cardiovascular condition. See April 2-3, 1963 notes; January 1964 note. Indeed, a January 1964 note referencing reported chest pain noted a negative radiographic report. Moreover, the Veteran's March 1964 separation examination found the lungs, chest, and heart were normal. The Board affords great probative value to the April 2012 VA examiner's opinion that his CAD was not likely to have been incurred in service. The examiner competently and persuasively explained that the Veteran's service records' notations of an evaluation for chest pain referenced symptoms "whose character was not consistent with chest pain from [CAD] while he was in service." The examiner reasoned that the description of the chest pain in the service treatment records (wheezing and rhonchi), and the Veteran's young age at the time, indicated that that nature of the chest pain was non-cardiac, and there was no evidence that it was due to CAD. The examiner also emphasized the normal March 1964 separation examination of the heart. In summary, the Board finds that, to the extent that the Veteran's service treatment records noted reports of and treatment for chest pain and respiratory symptoms, these were acute, isolated findings, as opposed to evidence of a chronic cardiovascular condition (including CAD). See 38 C.F.R. § 3.303(b) ("For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings...") (emphasis added). Nor does the medical evidence support a finding that any cardiovascular condition manifested to a compensable degree within one year of service separation. See 38 C.F.R. § 3.309(a), 3.307(a)(3). The Appellant has acknowledged and the medical evidence shows that the Veteran's earliest post-service treatment and diagnosis for a heart condition was in August 1991, when the Veteran was hospitalized at a VA facility. See August 1991 VA treatment record (abnormal chest imaging report). Several private and VA treatment records consistently noted this incident as the beginning of the Veteran's treatment and diagnosis for a cardiovascular condition, per his reported medical history. Indeed, multiple private treatment records from the mid-to-late 1970s affirmatively found his chest was normal based upon imaging and other diagnostic testing. Moreover, the weight of the most probative, persuasive evidence of record does not show continuity of cardiovascular symptomatology since service. See 38 C.F.R. § 3.303(b). The Board acknowledges the Appellant's October 2015 hearing testimony suggesting that the Veteran had experienced chest pain since soon after service separation. The Board also acknowledges a January 2004 VA cardiology consult note documenting the Veteran's report that he had chest pain during service, and that he continued to have episodes of chest pain intermittently without a diagnosis until he was admitted to a VA hospital for a myocardial infarction in August 1991. However, those lay reports are inconsistent with several private treatment records preceding the Veteran's original, 2003 service connection claim for a heart condition, including from the mid-1970s. Many such private treatment records contained detailed discussions of the Veteran's reported medical history, including specifically regarding his cardiovascular health, but lacked any reports of continuous cardiovascular symptoms since service (or references to service at all). Moreover, a March 1980 RO hearing transcript regarding a different claim included the Veteran's testimony referencing multiple conditions, but omitted any reference to heart symptoms, including chest pain. Had the Veteran in fact been experiencing continuous cardiovascular symptoms such as chest pain for the decades since service, it is reasonable to expect that he would have reported them at those times, before the original, June 2003 service connection claim. The fact that he did not do weighs heavily against a finding of continuity of symptomatology since service. The Appellant's October 2015 and Veteran's January 2004 respective assertions of continuity of symptomatology noted above both post-dated their respective VA compensation claims, undermining both statements' credibility. (The Veteran's original claim for service connection for a heart condition was filed in June 2003 and the Appellant's claim presently on appeal was filed in March 2007.) The Board considered the various private favorable medical opinions of record and affords them little probative value for the following reasons. First, the Board rejects the December 2004 private medical opinion by the Veteran's treating cardiologist, Dr. R.S., as purely speculative. Dr. R.S. referenced the Veteran's diagnosis of bronchitis during service, as opposed to an occlusive/ischemic CAD. He then opined: In retrospect, it is very possible that [the Veteran] was suffering early presentation of ischemic occlusive disease and we cannot find any ischemic evaluation based on exercise physiology which may well have indicated an occlusive future event. Based on this, he is concerned that his ischemic occlusive disease may have had origins while he was in active service in the U.S. military....Considering he is not that advanced in age yet he is quite advanced in his disease state, having required bypass surgery at about the age of 50, I think it is very possible or even likely that his underlying occlusive disease might have been missed without the benefit of exercise testing or more to the point, might have been picked up had he been able to obtain exercise testing at the time of complaint of chest pain while in-service (emphasis added). This opinion's reasoning is primarily based upon a counter-factual, hypothetical imagining of what diagnostic testing might have detected had it been ordered during service. This opinion also failed to address the Veteran's negative 1964 separation examination of the heart and chest, or the decades-long gap between service separation and the first post-service heart complaints and diagnosis in 1991, along with the multitude of medical treatment that occurred in the interim with absolutely no cardiac complaints. Accordingly, the Board affords more weight to the April 2012 VA examiner's more persuasive findings that the references to chest pain in the service treatment records did not constitute cardiovascular symptoms. Second, the Board rejects the June 2006 private medical opinion by Dr. R.S. as speculative for the same reasons. Indeed, this opinion merely reiterated his December 2004 opinion, using similarly speculative and hypothetical reasoning based upon what cardiovascular diagnostic testing during service "might likely have" shown, had it been performed. Third, the Board also rejects the April 2009 private medical opinion by the Veteran's treating physician, Dr. A.N., as speculative and conclusory. Dr. A.N. referenced the Veteran's health problems before he died, including "severe lung disease," and acknowledged the Veteran's (conceded) in-service asbestos exposure. He then opined, "There is probably a great chance many of his problems were secondary to this [in-service asbestos] exposure (emphasis added)." This opinion's language ("probably") is speculative and it completely lacks a rationale. It also is vague in that it did not explicitly suggest a relationship between the Veteran's conceded in-service asbestos exposure and his specific cause of death, CAD, but rather generally referenced the Veteran's various health "problems." Moreover, the Board observes that several private treatment records by these same treating physicians are of record, including such records that precede the 2003 service connection claim. Notably, none of them contained any objective medical findings suggesting a relationship between the Veteran's heart condition and service, to include his conceded in-service asbestos exposure. The Board finds these records created for treatment purposes by these providers are more probative and credible than their respective favorable medical opinions, which were produced solely for purposes of supporting a VA compensation claim. In summary, the Board affords significantly more weight to the negative VA medical opinions discussed above, which are supported by thorough medical rationales, than to these problematic private medical opinions. The Board reviewed the private and VA treatment records in the claims file, as well as records from the Veteran's state and Social Security Administration disability claims. However, they do not support the conclusion that the Veteran's sole cause of death, CAD, was etiologically related to service (to include his conceded asbestos exposure), or that COPD was a contributory cause of the Veteran's death by CAD. The Board also considered the lay evidence of record, including the Appellant's statements and hearing testimony, as well as her representative's briefs, suggesting a relationship between the Veteran's CAD and service, to include his conceded in-service asbestos exposure. While the Appellant is competent to report what the Veteran told her about his health and any treatment he may have received, and any symptoms she may have observed, she is not competent to opine as to the cause of the Veteran's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). She is also not competent to opine the Veteran's COPD somehow weakened his heart. Accordingly, the Board affords more weight to the competent VA medical opinions discussed above. Furthermore, the Board recognizes the Appellant's representative's February 2017 brief's citation to medical literature suggesting a link between COPD and CAD. However, the reference is general in nature, rather than specific to the Veteran's medical situation, and it does not warrant a finding that, in this case, the Veteran's cause of death by CAD was related to service in any way. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that information contained within treatises is generally too abstract to prove the nexus element of a service-connection claim). The July 2017 VA medical opinion discussed in detail above specifically rejected this article and made negative findings based upon a thorough discussion of the facts of the Veteran's specific case, the medical evidence of record, and pertinent medical research. The July 2017 VA medical examiner, a physician, is more competent to interpret and apply pertinent medical research than the Appellant and her representatives, lay people. Accordingly, the Board affords more weight to the July 2017 negative VA medical opinion. Finally, there is no allegation or evidence indicating that the Veteran's CAD was in any way related to his service-connected conditions of hearing loss, tinnitus, or hemorrhoidal tags. In summary, the Veteran's CAD was not incurred in service, did not result from a disease or injury incurred during service (to include conceded asbestos exposure), was not manifested to a compensable degree within a year of service, and was not caused or aggravated by a service-connected disability. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt standard does not apply. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs