Citation Nr: 1802074 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-00 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1975 to July 1978. He died in November 2004. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in which the RO essentially reopened the Appellant's previously denied claim of service connection for the cause of the Veteran's death and denied this claim on the merits. She disagreed with this decision in March 2011. She perfected a timely appeal in December 2011. A Travel Board hearing was held in February 2016 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. After the Veterans Law Judge who held this hearing subsequently retired from the Board, the Appellant was offered the opportunity to appear at a new hearing before a different Veterans Law Judge. She declined a new Board hearing in October 2017 correspondence. See 38 U.S.C. § 7107(c) (West 2012); 38 C.F.R. §§ 19.3(b), 20.707 (2017). The Board observes that, in a March 2006 rating decision, the RO denied the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant did not appeal this decision and it became final. See 38 U.S.C. § 7104 (West 2012). She also did not submit any relevant evidence or argument within 1 year of the March 2006 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for the cause of the Veteran's death is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In June 2016, the Board requested an Independent Medical Opinion (IME) from a physician concerning the contended etiological relationship between active service and the cause of the Veteran's death. This opinion was received in September 2017 and a copy was provided to the Appellant for her review. See 38 C.F.R. § 20.903 (2017). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. In a rating decision dated on March 21, 2006, and issued to the Appellant on March 27, 2006, the AOJ denied the Appellant's service connection claim for the cause of the Veteran's death; this decision was not appealed and became final. 2. The evidence received since the March 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death because it shows that the cause of the Veteran's death may be related to active service. 3. The record evidence, to include the Veteran's death certificate, shows that he died in November 2004 of chronic respiratory failure. 4. At the time of the Veteran's death, service connection was not in effect for any disabilities. 5. The record evidence does not show that the cause of the Veteran's death is related to active service or any incident of service. CONCLUSIONS OF LAW 1. The March 2006 rating decision, which denied the Appellant's claim of service connection for the cause of the Veteran's death, is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.302 (2017). 2. Evidence received since the March 2006 AOJ decision in support of the claim of service connection for the cause of the Veteran's death is new and material; thus, this claim is reopened. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The Veteran's death was not caused, or substantially or materially contributed to, by a disability incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2006, the AOJ denied the Appellant's service connection claim for the cause of the Veteran's death. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. The Appellant did not initiate an appeal of this rating decision and it became final. She also did not submit any statements relevant to this claim within 1 year of this rating decision which would render it non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie, 24 Vet. App. at 251-52. The claim of service connection for the cause of the Veteran's death may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Appellant filed an application to reopen this previously denied service connection claim in statements on a VA Form 21-534 which was date-stamped as received by the AOJ on October 21, 2010. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Appellant's application to reopen a claim of service connection for the cause of the Veteran's death, the evidence before VA at the time of the prior final AOJ decision consisted of the Veteran's service treatment records and his death certificate. The AOJ noted in the March 2006 rating decision that the Appellant had not responded to correspondence from VA requesting additional evidence in support of her claim. The AOJ concluded that the record evidence did not show that the cause of the Veteran's death was related to active service or any incident of service. Thus, the claim was denied. The newly received evidence includes the Veteran's post-service VA and private treatment records, including certain of his terminal medical records dated in the weeks immediately preceding his death, an autopsy completed following his death, a copy of a Social Security Administration (SSA) decision awarding him disability benefits, a June 2012 opinion from C. N. B., M.D., concerning the asserted etiological link between the cause of the Veteran's death and active service, an IME obtained by the Board in September 2017, and additional lay statements from the Appellant. All of this evidence is to the effect that the cause of the Veteran's death may be attributed to active service. For example, in his June 2012 opinion, Dr. C. N. B. concluded that, following a review of certain of the Veteran's medical records and an interview with the Appellant, the cause of the Veteran's death was related to active service. The Board notes that the evidence which was of record at the time of the prior final AOJ decision in March 2006 did not address whether the cause of the Veteran's death was related to active service. The newly received evidence suggests that the cause of the Veteran's death may be attributed to active service. The Board next notes that the Court held in Shade v. Shinseki, 24 Vet. App 110 (2010), that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. All of the newly received evidence is presumed credible only for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. Thus, the Board finds that the evidence submitted since March 2006 is new, in that it has not been submitted previously to agency adjudicators, and is material, in that it relates to an unestablished fact necessary to substantiate the claim of service connection for the cause of the Veteran's death. Because new and material evidence has been received, the Board finds that the previously denied claim of service connection for the cause of the Veteran's death is reopened. Service Connection for the Cause of the Veteran's Death The Board finds that the preponderance of the evidence is against granting the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant essentially contends that the Veteran was exposed to asbestos while serving onboard U.S.S. SAVANNAH (AOR-4) and/or herbicides and these in-service exposures caused or contributed to the cause of the Veteran's death. The record evidence does not support the Appellant's assertions regarding an etiological link between the cause of the Veteran's death and active service or any incident of service. It shows instead that, although the Veteran was treated for respiratory failure for several months prior to his death, it is not related to active service. The Veteran's available service personnel records confirm that he served onboard U.S.S. SAVANNAH (AOR-4). These records do not indicate, however, either that his active service included in-country duty or visitation in the Republic of Vietnam or that he otherwise was exposed to herbicides while in service. Accordingly, the Veteran's in-service herbicide exposure cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309 (2017). The Veteran's available service treatment records show no complaints of or treatment for any cardiopulmonary problems at any time while he was on active service, including while he was onboard U.S.S. SAVANNAH (AOR-4). The Board notes in this regard that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Appellant's claim of service connection for the cause of the Veteran's death. Despite the Appellant's assertions to the contrary, it shows instead that the respiratory failure which caused the Veteran's death several decades after his service separation more likely was related to his lifelong cigarette smoking history than to active service or any incident of service. For example, the Veteran was admitted to a private hospital emergency room in September 2003 complaining of shortness of breath and chest discomfort. A history of coronary artery disease with angioplasty and stent in May 2002 was noted. "He was doing well...Lately he started having increasing shortness of breath just walking and going upstairs 1 floor. This started getting worse and he came to the hospital." The Veteran reported feeling "weak and dizzy. No syncope and no diplopia. Has chest pain occasionally present. Mostly shortness of breath." Physical examination showed "both heart sounds well" without murmurs. The impressions included acute congestive cardiac failure "with superadded infection" and possible severe left ventricular dysfunction. While hospitalized for 2 days, the Veteran's cardiac enzymes repeatedly were negative for myocardial infarction. The discharge diagnoses included bronchitis to early pneumonia. He was discharged home. The Veteran's terminal medical records show that he was admitted to a private hospital on August 4, 2004, for coronary artery bypass graft (CABG) surgery following complaints of shortness of breath since December 2003 "and apparently with diaphoretic episodes." Physical examination on admission showed a regular heart rate and rhythm without clicks, murmurs, or rubs. On private consultation on August 25, 2004, while the Veteran remained hospitalized, it was noted that, since his CABG surgery, "he complains of tachycardia and shortness of breath which worsen with exertion and even with speaking." A 34-pack per year history of smoking was noted. Physical examination showed he was "lethargic at first, then became anxious appearing, trembling and tachypneic," a regular heart rate and rhythm without murmurs, rubs, or gallops, and coarse upper airway sounds. On private consultation on October 13, 2004, while the Veteran remained hospitalized, it was noted that, following his hospital admission, he had been intubated, extubated, and intubated again. "His hospital stay was complicated by [adult respiratory distress syndrome]-like symptoms versus BOOP (bronchiolitis obliterans organizing pneumonia), and the [Veteran] was subsequently treated with steroids and Cytoxan." It also was noted that the Veteran "has continued to decline progressively from a mobility standpoint...[The Veteran] has continued to deteriorate and is presently on a nonrebreather and nasal cannula oxygen and is short of breath at rest." Physical examination showed "a very ill-appearing man, having difficulty breathing," a moon face, hyperthyroid-looking, protuberant eyes, coarse lung sounds bilaterally, and oriented to year but not month and to being in a hospital but not the specific hospital where he was an inpatient. The impressions included severe adult respiratory distress syndrome versus bronchiolitis obliterans organizing pneumonia, coronary artery disease, status-post stenting times 2 in 2002 and status-post CABG times 2 in August 2004, congestive heart failure, an impaired ability to complete activities of daily living, an impaired ability to complete mobility, and end-of-life issues. On private consultation in November 2004, it was noted that the Veteran "was progressively declining during the 3 months he spent at Methodist [Hospital] between August until the end of October 2004. Was not able to do his activities of daily living and was progressively getting worse, requiring more [oxygen]. He was in that state when he was admitted on November 3 to the [medical intensive care unit] again with worsening respiratory failure." Chest x-rays showed diffuse infiltrative disease. A September 2004 computerized assisted tomography (CAT) scan showed consolidated processes and honeycombing and diffuse interstitial disease. The assessment was status post CABG in August 2004 "with subsequent development of severe pulmonary disease diagnosed as acute respiratory distress syndrome versus bronchiolitis obliterans-organizing pneumonia with continued progression despite immune suppressive regimens over 3 months. Final decline led to intubation with elevated peak pressures, high oxygen requirements, difficulty to ventilate requiring sedation and paralysis." The Veteran's prognosis was poor. The Veteran's death certificate shows that he died on November [REDACTED], 2004. The immediate cause of death was listed as chronic respiratory failure. The conditions leading to the immediate cause of death were listed as adult respiratory distress syndrome due to or as a consequence of post-operative coronary artery bypass. The underlying cause of death was listed as coronary artery disease. The Veteran's December 2004 autopsy report shows that the final anatomic diagnoses of the cardiovascular system included cardiomegaly, coronary artery bypass grafts, atherosclerosis of native coronary arteries with 80 percent stenosis, a metallic stent in the left main coronary artery, and recent subendocardial ischemic necrosis of the anterior left ventricle. The pathologist conducting the autopsy stated, "The major pathologic findings at autopsy were in the lung. There was diffuse bilateral acute and organizing pneumonia and interstitial fibrosis." In his June 2012 opinion, Dr. C. B. identified himself as an expert in providing independent medical opinions and stated that he had reviewed the Veteran's medical records and interviewed his surviving spouse (the Appellant) "to document his disabilities prior to his demise." Dr. C.B. stated that the Veteran spent 1-2 years in service on World War II-era "cargo/supply ships. These old ships all contained layers and layers of asbestos covering these ships internal piping." Dr. C.B. opined that the Veteran likely was "exposed to asbestos at high concentrations during his tour with the U.S. Navy on old WWII era ships." The Board again notes that the June 2012 opinion from Dr. C. B. is considered credible only for the limited purpose of reopening the Appellant's previously denied service connection claim for the cause of the Veteran's death. See Justus, 3 Vet. App. at 513. The Board now must determine whether this opinion is entitled to probative value on the merits. The Board next notes that, according to publicly available information concerning U.S.S. SAVANNAH (AOR-4), the ship on which the Veteran served while in the U.S. Navy, it was built in 1969 and was an oiler replenishment ship. See https://en.wikipedia.org/wiki/USS_Savannah_(AOR-4) (last visited January 8, 2018). There is no indication that this ship was a World War II-era cargo or supply ship. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the June 2012 opinion from Dr. C. B., the Board finds that it is not probative on the issue of whether the cause of the Veteran's death is related to active service. First, despite Dr. C. B.'s assertions regarding U.S.S. SAVANNAH (AOR-4) contained in this opinion, publicly available information demonstrates that this ship was not, in fact, a World War II-era cargo or supply ship. It appears that Dr. C. B. based his opinion either on what the Appellant reported to him concerning the Veteran's alleged in-service asbestos exposure or did not review the Veteran's service personnel records which show that the only U.S. Navy ship he served on during active service was not a World War II-era cargo or supply ship. Nor does a review of the Veteran's available service treatment records demonstrate that he was exposed to asbestos while on active service. In other words, there is no factual predicate in the record for Dr. C. B.'s bald assertions regarding the Veteran's alleged in-service asbestos exposure which formed the basis of his positive nexus opinion linking this claimed exposure to the cause of the Veteran's death. Dr. C. B. provided no other clinical data or rationale to support his opinion other than a self-referential discussion of his own expertise. This, too, is insufficient support for the opinion that Dr. C. B. provided. Accordingly, the Board finds that this opinion is not probative on the issue of whether the cause of the Veteran's death is related to active service. In contrast, following a review of the Veteran's medical records, an independent medical expert provided an opinion in September 2017 in which he opined that there was no evidence to support finding an etiological link between the cause of the Veteran's death and active service. This physician is identified as an associate professor of cardiac surgery and the Director, Heart Transplantation, Minimally Invasive, and Robotic Cardiac Surgery in the Department of Surgery at the University of Wisconsin School of Medicine and Public Health. This physician stated that the cause of the Veteran's death was related to his advanced pulmonary disease at the time of his death "most likely interstitial fibrosis" and chronic obstructive pulmonary disease which was related to his 34-pack year history of smoking. This physician also stated that the Veteran had died a few months "after his CABG surgery for his severe coronary artery disease but there is no evidence that his death is related to any cardiac complications." This physician noted that it was not uncommon for patients with advanced pulmonary disease, especially interstitial fibrosis, to become acute which was almost always fatal. The Appellant contends that the cause of the Veteran's death is related to active service. The record evidence does not support the Appellant's assertions regarding the contended etiological relationship between the cause of the Veteran's death and his active service. It shows instead that, although the cause of the Veteran's death was chronic respiratory failure, it is not related to active service or any incident of service. The Appellant specifically contends that the Veteran allegedly was exposed either to asbestos or herbicides during active service and such exposure caused or contributed to his death from chronic respiratory failure decades later. As discussed above, the record evidence does not support finding that the Veteran was exposed to herbicides during active service. Critically, the record evidence also shows no etiological link between any alleged in-service asbestos exposure and the cause of the Veteran's death. The Board already has found that the June 2012 opinion from Dr. C. B. purporting to relate the Veteran's alleged in-service asbestos exposure to the cause of his death has no probative value. An independent medical expert concluded instead in September 2017 that the cause of the Veteran's death likely was related to his lifetime smoking history and the advanced pulmonary disease and chronic obstructive pulmonary disease which resulted from this smoking history. The September 2017 independent medical expert's opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Appellant also has not identified or submitted any evidence, to include a medical nexus, which demonstrates her entitlement to service connection for the cause of the Veteran's death. In summary, the Board finds that service connection for the cause of the Veteran's death is not warranted. ORDER As new and material evidence has been received, the previously denied claim of service connection for the cause of the Veteran's death is reopened. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs