Citation Nr: 1803785 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-00 208A ) 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: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1970, including service in Korea. He had subsequent service with the North Carolina Army National Guard from December 1975 to January 1987. The Veteran died in January 1987. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In December 2013, November 2014, and July 2017, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. After completing the requested actions, the case was last adjudicated in a September 2017 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. A certificate of death reflects that the Veteran died in January 1987 and lists cardio respiratory arrest as the immediate cause of death, due to, or as a consequence of, chronic alcohol abuse. 2. At the time of the Veteran's death service connection was not in effect for any disability and there was no pending claim or appeal. 3. The Veteran served on active duty with a unit stationed in Korea along the DMZ from September 1969 to January 1970 and, therefore, he is presumed to have been exposed to an herbicide agent. 4. The most probative evidence establishes that a systolic pulmonic murmur, or functional murmur, which was noted on entrance examination in February 1968, was not aggravated during active duty service. 5. The most probative evidence establishes that the Veteran did not have ischemic heart disease, including coronary artery disease, or any other disease associated with exposure to herbicide agents prior to his death. 6. Cardio respiratory arrest was not present or manifested during the Veteran's military service, and the preponderance of evidence is against a finding that the Veteran's cause of death is related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In the instant case, VA provided adequate notice in letters sent to the appellant in July 2011 and October 2012. Active duty service treatment and personnel records, National Guard service treatment and personnel records, VA and private treatment records, lay statements, and VA publications pertaining to Agent Orange are associated with the claims file. VA requested and obtained relevant medical opinions as discussed further in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal and neither the appellant nor her representative has raised any issues with the duty to notify or assist. The Board also finds that VA has substantially complied with the prior remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Hence, no further notice or assistance to the appellant is required. See Scott, 789 F.3d at 1381 (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"); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection for the Cause of the Veteran's Death The appellant asserts that the Veteran's death resulted from exposure to certain herbicide agents, including Agent Orange, during his service in Korea along the demilitarized zone (DMZ). The certificate of death identifies the immediate cause of death as cardio respiratory arrest due to, or as a consequence of, chronic alcohol abuse. No other condition was identified as contributing to death. The certificate lists the place of death as the emergency room of Maria Parham Hospital. The AOJ attempted to obtain those terminal medical records; however, a response from the hospital indicated no records existed for the Veteran for the last 11 years, presumably as a result of its document retention policy. The cause of a veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a) (2017). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. Id. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Id. § 3.312(c)(1). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv). A veteran is entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases, including ischemic heart disease, associated with exposure to certain herbicide agents if he served in or near the Korean DMZ with the requisite unit during the applicable time period. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 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 2. The Federal Circuit has held that even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the evidence, the Veteran's service personnel records establish that he served in Korea from August 15, 1969 to October 10, 1970 with the 1st Battalion, 31st Infantry from at least September 7, 1969 through January 13, 1970. That unit is listed among those identified by the Department of Defense as operating in the Korean DMZ during the qualifying time period. See M21-1 VA Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section H, Subsection 4.b (updated Aug. 22, 2017). Therefore, the Veteran's presumed exposure in Korea to herbicide agents has been conceded. During the Veteran's lifetime, service connection had not been established for any disability. In October 1970, he had filed a claim for service connection for an eye sight problem and venereal disease. In a November 1970 rating decision, the AOJ denied the claims. In a February 1968 report of medical history at entrance to active duty, the Veteran denied currently or ever having pain or pressure in his chest, palpitation or pounding heart, high or low blood pressure, or a family history of heart trouble. On entrance examination the same day, the examiner noted a systolic pulmonic murmur. The examiner documented the Veteran's report of having no history of cardiovascular disease or symptoms and indicated that three examiners believed the murmur was functional. A summary of defects and diagnoses listed "functional murmur." The examiner found the Veteran to be qualified for induction. An August 1968 service treatment record reflects the Veteran's complaint of chest pain over the past nine weeks. Physical examination revealed mild rib tenderness. The impression was endochondritis. For clarity, the Board notes that "endrochondral" is defined as "situated, formed, or occurring within cartilage." Dorland's Illustrated Medical Dictionary 617 (32d ed. 2012). Also, "itis" refers to "a word termination denoting inflammation of the part indicated by the word stem to which it is attached." Id. at 967. In other words, the Army examiner attributed the Veteran's chest pain to inflammation of the cartilage in his ribs. The Board observes that another term for inflammation of the cartilage in the ribs is costochondritis. See id. at 423 (defining costochondritis as "inflammation of the cartilaginous junction between a rib or ribs and the sternum"). An October 1970 separation examination report reflects the examiner assessed the Veteran's body systems, indicating whether each was normal or abnormal, but did not indicate whether the Veteran's heart was normal or abnormal. However, his vascular system and lungs and chest were reported as normal, and the summary of defects and diagnoses was limited to refractive error, corrected with lenses. The examiner found the Veteran physically qualified for separation. The Veteran's National Guard treatment records are silent for complaints, diagnosis, or treatment for any heart problems. In reports of medical history dated in December 1975 (enlistment), December 1978, and October 1982, he denied currently or ever having any heart trouble, pain or pressure in his chest, palpitation or pounding heart, or high or low blood pressure. Corresponding medical examination reports document a normal heart and vascular system on clinical evaluation. In January 1981, the Veteran presented to the Durham VA Medical Center (VAMC) with several complaints. He reported having the "flu" three weeks earlier, right ankle tenderness, and a three-year face rash. His main complaint was intermittent chest tightness that was usually worse after working. Following a physical examination and EKG, which was reported as within normal limits, the diagnosis was anxiety; questionable angina. The plan included a follow-up visit after a two-week trial of nitroglycerin. A February 1981 treatment note reflects the Veteran's complaint of left-sided pain for two days and right ankle pain for two months. He reported working at a mall and noting left-sided pain when lifting for the past several days. The diagnosis included musculoskeletal flank pain. In December 1985, the Veteran's private physician, Dr. K., referred him to VA for evaluation of a right upper quadrant mass, noting an eight to nine pound weight loss, history of alcohol abuse, and ascites. A January 1986 VA treatment record documents the referral by the Veteran's local medical doctor for evaluation of possible cirrhosis and possible mass, noting an increased abdominal girth, a 10 to 12 pound weight loss over the past 1 to 3 months, and a history of alcohol consumption consisting of 1 to 2 beers per day and a pint over weekends. The VA physician noted the December 1985 private chest x-ray report was within normal limits. (The actual December 1985 chest x-ray report, which is associated with the claims file, documents the "heart and great vessels are within normal limits in size."). The Veteran described being in good health until November 1985 when he noticed increased abdominal girth. At that time, he was seen by his local medical doctor for anorexia, bilateral lower quadrant pain, and diarrhea occurring 3 to 4 times per day. He was told to quit alcohol, which reportedly resulted in some improvement in abdominal girth, but anorexia, lower quadrant pain, and diarrhea continued. The Veteran reported a current weight loss of 15 pounds to the January 1986 VA physician. During February 1986 VA evaluation, the Veteran disclosed a 20-year history of alcohol abuse, consuming two to three beers and three drinks per day. He described a five-month history of increased abdominal girth with intermittent bilateral lower quadrant "cramping" pain occurring approximately three times per week and associated with diarrhea five to six times per day. The physician ordered a liver-spleen scan to rule out cancer with liver metastasis; the provisional diagnosis was cirrhosis. The impression of the liver-spleen scan was abnormal liver and spleen with findings compatible with diffuse liver disease, e.g., cirrhosis. The assessment was alcoholic liver disease. The VA physician advised Dr. K. of the findings. A November 1986 report of contact appears to reflect a referral for VA evaluation of ascites flap, icterus (jaundice), and large liver found on annual National Guard examination with documented alcohol abuse. It appears the Veteran was advised to go to the VA emergency room for evaluation. He presented for evaluation and testing the same day. He reported having a good appetite, but had previously had no appetite and had been losing weight until October 1986. He indicated he worked for the National Guard and was told on annual employment examination that he had fluid in his abdomen and cirrhosis. He disclosed he was still drinking; the examiner observed that the Veteran smelled of alcohol. Examination findings included abdomen grossly distended with fluid. The diagnosis was alcoholic liver disease; malnutrition. A chest x-ray report listed the reason for the study as "cirrhosis - ascites." The study revealed the heart was at the upper limits of normal in size. The conclusion was ascites, left lower lobe subsegmental atelectasis. After the testing and evaluation, the physician concluded the Veteran was not acutely ill and hospital admission was not warranted. The assessment was alcoholism: alcoholic liver disease - cirrhosis with ascites and lower extremity edema; malnutrition. In compliance with the Board's remand directives, the AOJ obtained several VA medical opinions based on review of the claims file to address the etiology of the cause of the Veteran's death. The first opinion, in January 2014, considered the cause of death in the context of whether the Veteran had any type of ischemic heart disease, to include coronary artery disease, prior to his death. The reviewing physician opined it was less likely as not that the Veteran's death from cardio respiratory arrest was etiologically related to service, to include herbicide exposure. In support of his conclusion, the physician explained that cardio respiratory arrest is a "generic term often used as the cause of death on death certificates that simply means the heart stopped beating. It appears that this Veteran's heart stopped beating because of some alcohol-related problem, such as liver failure, as an example." The physician emphasized that there were no medical records showing that the Veteran had or was being treated for any type of ischemic heart disease, to include coronary artery disease, prior to his death, or that he had any other conditions related to Agent Orange (herbicide exposure). The physician reiterated that the death certificate listed the cause of death from cardio respiratory arrest as being secondary to chronic alcohol abuse. The second opinion, provided by another VA physician in October 2016, considered whether the Veteran's functional murmur, which was noted on the February 1968 entrance examination report, was aggravated during service. Pertinent to the request for this opinion, applicable law provides that every veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). If a preexisting disorder is noted upon entry into service, the presumption of soundness does not attach and the veteran cannot bring a claim for direct service connection for that disorder; rather, the veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). A preexisting injury is considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Jensen, 19 F.3d at 1417. If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is then on the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). To rebut that presumption, the Secretary must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Turning to the opinion, the October 2016 reviewing VA physician opined that the systolic pulmonic murmur noted at the Veteran's entrance to active duty military service clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression during service. In support of his conclusion, the physician explained that a "functional murmur (innocent murmur, physiologic murmur) is a heart murmur that is primarily due to physiologic conditions outside the heart, as opposed to structural defects in the heart itself." The physician observed there was no evidence of complaints, aggravation, or increased severity of the murmur in service and no history of cardiovascular disease or symptoms after service. The physician added that because anyone who expires experiences a cardio respiratory arrest, the issue of cardio respiratory arrest being related to the Veteran's military service was a "moot point." Finally, in a September 2017 addendum medical opinion, the October 2016 reviewing physician considered the Veteran's presumed exposure to herbicides in relation to the cause of his death, specifically whether the Veteran had any type of ischemic heart disease, to include coronary artery disease, prior to his death. The physician opined it was less likely than not that the Veteran's death was caused by military service, including herbicide exposure. The physician reiterated the opinion of the January 2014 VA physician that cardio respiratory arrest is a generic term that means the heart stopped beating and that the Veteran's heart stopped beating, according to the certificate of death, due to some alcohol-related problem, such as liver failure. The physician also emphasized that other than alcohol abuse, the certificate of death identified no other contributory condition underlying the immediate cause of death from cardio respiratory arrest. Lastly, the physician pointed out that the medical records included no evidence of diagnosis or treatment for coronary artery disease. Having considered the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. First, the Board finds that the Veteran's cardio respiratory arrest is necessarily unrelated to his military service because his heart stopped and he stopped breathing at the moment of death, consistent with the definition of cardio respiratory arrest provided by reviewing VA physicians. Notably, cardio respiratory arrest is not indicative of heart or cardiovascular disease, but is merely what happens when "anyone expires." Second, the Board notes that the medical and lay evidence of record weighs against any conclusion that the Veteran's functional murmur noted on entrance to military service was aggravated beyond its natural progression during military service, or that any functional murmur caused or contributed to the Veteran's death. In this regard, neither the Veteran during his lifetime, nor the appellant during the appeal has suggested that the Veteran's preexisting functional murmur was aggravated during service or caused or contributed to his death. Similarly, the Veteran's August 1968 complaint of chest pain was attributed to inflammation of the cartilage in his ribs. Moreover, post-active duty-service treatment records dated from 1975 to 1986 reference the Veteran's history of murmur only once and do not record any disabling effects associated with any murmur or even the presence of any murmur detected on examination. Third, the Board concludes that the competent medical evidence of record reflects that the Veteran did not have ischemic heart disease, including coronary artery disease, prior to his death. Instead, chest x-ray reports, an EKG study performed in conjunction with reported chest tightness, and clinical records consistently document heart findings within normal limits, although a November 1986 chest x-ray study revealed heart size at the upper limits of normal. These findings weigh heavily against the claim that the Veteran had any ischemic heart disease prior to his death. Fourth, the Board finds the contributory cause of death from chronic alcohol abuse is consistent with contemporaneous medical evidence of record. Here, diagnostic testing and clinical examination confirmed the presence of alcohol-related liver disease or cirrhosis due to chronic alcohol abuse and excluded other causes, such as cancer with metastasis to the liver, for the Veteran's distended stomach and lower quadrant pain. Turning to the medical opinion evidence, the Board finds the January 2014, October 2016, and September 2017 opinions of the reviewing VA physicians persuasive and probative evidence against the claim for service connection for the cause of the Veteran's death because they were based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). As detailed, the reviewing physicians concluded that the Veteran's heart stopped beating due to chronic alcohol abuse, to include resulting liver failure according to the January 2014 physician; that the Veteran's preexisting heart murmur was not aggravated during military service; that he did not have ischemic heart disease prior to his death; and that his death was not otherwise related to military service, including his presumed exposure in Korea to herbicides. Finally, to the extent that the Veteran's alcohol abuse or dependence may have manifested during military service, service connection for this disorder is precluded. For VA purposes, willful misconduct includes the abuse of alcohol or drugs. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). The simple drinking of alcoholic beverages is not of itself willful misconduct. 38 C.F.R. § 3.301(c)(2). Alcohol abuse is defined as the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). In this case, the Veteran's post-service treatment records document his abuse of alcohol over time, beginning around 1966 according to his statement to a VA treatment provider in February 1986. The Board finds the Veteran's description of his alcohol abuse credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). In sum, the Board is compelled to conclude that the preponderance of the evidence is against the appellant's claim of service connection for the cause of the Veteran's death. It follows that the Board is unable to find such a state of approximate balance of the positive evidence to otherwise warrant a favorable decision. 38 U.S.C. § 5107(b). Therefore, the claim must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs