Citation Nr: 1806101 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 03-30 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to non service-connected burial benefits. WITNESSES AT HEARING ON APPEAL Appellant, Dr. A.F. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active duty service from June 1973 to June 1975. The Veteran died in September 2002. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant and a physician testified at a Board hearing at the RO in June 2004. This matter was previously before the Board and was remanded in October 2004, December 2005, June 2009, September 2011 and June 2014. In December 2017, the Board sent a letter to the appellant informing her that the VLJ before whom she had testified in June 2004 was no longer employed at the Board and advising her that she had a right to a new hearing before another VLJ that would decide her case. See 38 U.S.C. § 7107(c) (2012) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). The letter informed her that, if she did not respond in 30 days, the Board would assume she did not want another hearing. Therefore, as the appellant did not respond to the December 2017 letter, the Board presumes that the appellant does not wish to attend another hearing and desires a decision based on the current record. The issue of contesting the validity of a debt incurred as well as seeking a waiver of overpayment has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The cause of the Veteran's death in September 2002 was arteriosclerotic cardiovascular disease (ASCVD) due to or as a consequence of anaphylactic reaction requiring tracheotomy placement. 2. Service connection was not in effect for any disability at the time of the Veteran's death. 3. The evidence of record is in equipoise as to whether the Veteran's death was proximately due to or the result of a penicillin allergy which manifested in service. 4. Given that the Veteran's death has been service connected, entitlement to burial benefits is warranted. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, service connection for the cause of the Veteran's death is warranted. 38 U.S.C. §§ 1110, 1112, 1310, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.312 (2017). 2. The criteria for entitlement to service-connected burial benefits are met. 38 U.S.C. § 2307 (2012); 38 C.F.R. § 3.1704 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Cause of Death Laws and Regulations Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal or contributory cause of death. See 38 C.F.R. § 3.312(a) (2017). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause of death, or be etiologically related. See 38 C.F.R. § 3.312(b) (2017). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially to death. It is not sufficient to show that it casually shared in producing death; rather it must be shown that there was a causal connection. See 38 C.F.R. §3.312(c) (2017). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See 38 C.F.R. § 3.312(c) (1) (2017); Lathan v. Brown, 7 Vet. App. 359 (1995). Factual Background and Analysis The record reflects that the Veteran died in September 2002. The death certificate lists his causes of death as ASCVD due to or as a consequence of anaphylactic reaction requiring a trach. At the time of his death, the Veteran was not service connected for any disabilities. The Board notes that the Veteran's service treatment records are unavailable for review. As such, the Board recognizes that VA needs to employ a "heightened" duty "to explain its findings and conclusions and to consider carefully the benefit- of-the-doubt rule." See Cromer v. Nicholson, 19 Vet. App. 215, 217- 18 (2005), quoting O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (explaining that precedent does "not establish a heightened 'benefit of the doubt,' only a heightened duty of the Board to consider applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed"); see also 38 C.F.R. § 3.159(c) (4). The appellant contends that the Veteran had a penicillin allergy which first manifested in service and resulted in his death from an anaphylactic reaction. The claims file includes copies of the Veteran's dog tags, which do show an allergy to penicillin. The appellant's other contention is that the Veteran's death was causally related to his exposure to chemicals during service. The appellant has submitted a copy of a document showing that the Veteran was awarded the Army Commendation Medal on July 1, 1975, in recognition of meritorious service as a Captain in the Veterinary Corps, which does outline some of the Veteran's duties. Unfortunately, virtually no records regarding the Veteran's service have been located. Although prior attempts to locate any available service records for the Veteran have thus far been futile, it appears from the claims file that the RO has recognized the Veteran's service, and the appellant was awarded VA death pension by rating decision in April 2003. The claims file includes the June 2004 Board hearing testimony from A. F., M.D., who opined that the Veteran's cause of death was actually the anaphylactic reaction and not the ASCVD, which was due to his penicillin allergy that manifested in service. Dr. F. also testified that the Veteran's allergy to penicillin was aggravated (or increased in sensitivity) as a result of his service. Dr. A. F. maintained that during the Veteran's service when he was a veterinarian, he was exposed to chemicals and worked with pathogens that likely required use of antibiotics which aggravated his allergy to penicillin. In a July 2009 correspondence, Dr. A.F. opined that the Veteran died of complications before surgery due to a penicillin allergy which was manifested in the military. Dr. A.F. noted that the Veteran's mother did not recall her son having allergies as a child and the Veteran's dog tags noted a penicillin allergy during his service which included working with pathogens for which antibiotics likely would have been used. Dr. A.F. opined that the "connectiveness of the emerging allergies to the Veteran's military service was quite evident." In June 2012, the Deputy Commander for Veterinary Services of the U.S. Army submitted a statement indicating "that any veterinarian engaged in the diagnosis and treatment of zoonotic diseases...was likely to have been exposed to various common chemicals used in the veterinary profession at that time to include antiseptics, inhalant anesthetic agents, detergents, etc." Per the September 2011 Board remand instructions, a VA examiner provided a medical opinion after a records review in August 2014. The examiner noted that the Veteran had a history of anaphylactic reactions to penicillin which had led to episodes of atrial fibrillation and hospitalization. The examiner also noted that the Veteran underwent coronary artery bypass grafting (CABG) surgery where he developed anoxic encephalopathy and respiratory problems which led to a permanent tracheotomy being placed. The examiner noted that he could find no documented evidence in the medical record of any exposure to hazardous drugs or chemicals by the Veteran. The examiner opined that in the absence of better documentation, it was less likely than not that the Veteran's demise was caused by or related to exposure to chemicals or drugs during his military service. In January 2015, the Board referred this case for medical expert opinion with the Veterans Health Administration (VHA). In a November 2015 letter, the VHA reviewer opined that it was less likely than not that the Veteran's ASCVD was incurred in the service or that the condition was otherwise attributable thereto, including possible exposure to solvents and/or other chemical substances used in the course of his in-service veterinary duties. In a December 2015 addendum opinion, the VHA reviewer noted that he had reviewed all of the records and literature and he had not found anything in the reviewed literature to substantiate the appellant's claim of service related exposure as a cause of or contributor of the Veteran's death. In a February 2016 opinion, another VHA reviewer noted that the Veteran served as a veterinarian while on active duty and might have been occupationally exposed to antiseptics, inhalation anesthetics and detergents. It was also noted that prior to planned CABG surgery he was given a cephalosporin antibiotic which resulted in a severe reaction and cardiac arrest. He had emergent CABG but suffered anoxic encephalopathy and died a few months later with the cause of death listed as ASCVD due to or as a consequence of anaphylactic reaction requiring tracheotomy placement. The VHA reviewer noted that the Veteran was known to have several risk factors for coronary artery disease (CAD) including aging, smoking and family history. His presentation was typical for a man with chronic CAD. His reaction to the cephalosporin led to the need for emergent CABG surgery and resultant anoxia. His mortality and morbidity with this surgery would have been predicted to be low without the emergency created by the anaphylactic reaction. The VHA physician indicated that he could find no evidence that the Veteran's presumed exposure to antiseptics, inhalation anesthetics and detergents in the 1970's caused his CAD. The VHA physician had reviewed cardiology literature and had found no relationship. However, any review was limited because no specific exposure was documented. The physician also reviewed the Occupational Safety and Health Administration (OSHA) guidelines on workplace exposures and found no relation to CAD listed specifically for exposure to anesthetics or benzene agents (commonly used in detergents). Therefore, he concluded that it was less likely than not that the Veteran's CAD was related to his active duty service. In December 2016, the Board again referred this case for medical expert opinion with the VHA. In an April 2017 letter, the VHA reviewer noted that the Veteran's allergy to penicillin was neither an acquired disorder nor a congenital/developmental/hereditary disorder. It was partly developmental as a patient was inherently prone to developing an allergy to penicillin and there was no good way to anticipate this or prevent this. It was partly acquired as the patient needs to be exposed to penicillin for this to manifest. The VHA physician also opined that it was just as likely that the Veteran's allergy to penicillin manifested during service as it might have at any other time while not in service. The Veteran's chances of being detected as being allergic to penicillin would be the same if he had received penicillin at age 10 as a child versus age 23 while in the military or age 35 after leaving the military. The physician noted that there were no military records available to provide evidence that he developed an allergy to penicillin while in the military. There were statements made by his mother that she was not aware of him having a penicillin allergy prior to entering the military and his dog tags stated that he was allergic to penicillin. The physician indicated that there was "no way to infer when the allergy was first documented". The physician also noted that a penicillin allergy was not a disease process and instead may be considered an "innate defect" as the Veteran was genetically predisposed to this. He opined that while the allergy is best considered as the individual having an inherent predisposition to the condition, he needed an exposure to penicillin for this to manifest. As there were no service medical records available, the physician was not able to establish that the Veteran was exposed to penicillin while in the military. The physician was thus unable to comment on whether this was related to his military service. With regards to whether the Veteran's presumed exposure to chemicals, solvents, antibiotics etcetera in the lab increased the severity of his penicillin allergy, there was scant, low quality evidence in the medical literature to suggest that such exposures can cause/exacerbate an allergy to penicillin. This was mostly in health care workers such as nurses, pharmacists, etcetera who deal with antibiotics on a regular basis over long periods of time. While rare, these allergies typically manifested as contact dermatitis or asthma rather than anaphylaxis. The physician believed that it was highly unlikely that the Veteran's purported exposure to chemicals, solvents, antibiotics etcetera while in service caused an exacerbation of the severity of his allergy to penicillin. Finally, the VHA physician noted that an allergy to penicillin was not a disease. Taking into account all relevant evidence, the Board finds that service connection is warranted for the cause of the Veteran's death. The appellant again contends that the Veteran had a penicillin allergy which first manifested in service and resulted in his death from an anaphylactic reaction. The Appellant also contends that the Veteran's death was causally related to his exposure to chemicals during service. As noted above, the Veteran was presumed to be exposed to chemicals during service as the Deputy Commander for Veterinary Services of the U.S. Army submitted a statement in June 2012 indicating "that any veterinarian engaged in the diagnosis and treatment of zoonotic diseases...was likely to have been exposed to various common chemicals used in the veterinary profession at that time to include antiseptics, inhalant anesthetic agents, detergents, etc." Additionally, while the Veteran's service complete service treatment records are not available, the Veteran's dog tags noted a penicillin allergy during his service. Notably, multiple VHA opinions have determined that it was less likely than not that the Veteran's death was causally related to his exposure to chemicals during service. The February 2016 VHA physician indicated that he could find no evidence that the Veteran's presumed exposure to antiseptics, inhalation anesthetics and detergents in the 1970's caused his CAD while the most recent VHA reviewer in April 2017 opined that it was highly unlikely that the Veteran's purported exposure to chemicals, solvents, antibiotics etcetera while in service caused an exacerbation of the severity of his allergy to penicillin. However, the Board finds that the evidence is at least in equipoise as to whether the Veteran's penicillin allergy, which caused or contributed substantially or materially to the death of the Veteran's death, manifested in service. The Board notes the July 2009 correspondence and Board testimony of Dr. A.F. who opined that the Veteran's cause of death was actually the anaphylactic reaction and not the ASCVD, which was due to his penicillin allergy that manifested in service. Dr. A.F. noted that the Veteran's mother did not recall her son having allergies as a child and also opined that the connectiveness of the emerging allergies to the Veteran's military service was "quite evident". In a February 2016 VHA opinion, the reviewer noted that the Veteran's mortality and morbidity with his heart surgery would have been predicted to be low without the emergency created by the anaphylactic reaction. Notably, per a December 2016 Board request, the April 2017 VHA reviewer indicated that the Veteran was inherently prone to developing an allergy to penicillin and that it was partly acquired as the patient needs to be exposed to penicillin for this to manifest. The VHA physician also opined that it was just as likely that the Veteran's allergy to penicillin manifested during service as it might have at any other time while not in service. The physician noted that there were no military records available to provide evidence that he developed an allergy to penicillin while in the military, there were statements made by his mother that she was not aware of him having a penicillin allergy prior to entering the military and his dog tags stated that he was allergic to penicillin. As a result, the physician indicated that there was "no way to infer when the allergy was first documented". The physician concluded and as there were no service medical records available, he was not able to establish that the Veteran was exposed to penicillin while in the military and thus was unable to comment on whether his penicillin allergy was related to his military service. Accordingly, the Board finds that when affording the appellant the benefit of the doubt, the evidence of record is in equipoise as to whether the Veteran's death was proximately due to or the result of a penicillin allergy which manifested in service. The record demonstrates that the Veteran's death was the result of ASCVD which was due to or as a consequence of anaphylactic reaction caused by a penicillin allergy. As noted above, the private physician opined that the Veteran's cause of death was due to his penicillin allergy that manifested in service. Significantly, there is no evidence of record that the Veteran's penicillin allergy did not manifest in service as again, the April 2017 VHA reviewer indicated that he was unable to comment on whether the Veteran's penicillin allergy was related to his military service as there were no service medical records available and he was not able to establish that the Veteran was exposed to penicillin while in the military. The VHA physician also opined that it was just as likely that the Veteran's allergy to penicillin manifested during service as it might have at any other time while not in service. Accordingly, the Board finds the evidence for and the evidence against the appellant's claim is in relative equipoise, and so the Board affords the appellant the benefit of the reasonable doubt, and finds there is medical evidence of record establishing a link between the Veteran's penicillin allergy during active duty service and his cause of his death. Accordingly, the Board finds that a grant of service connection for the cause of the Veteran's death is warranted. II. Burial Benefits VA burial benefits include a burial allowance and plot or internment allowance. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. § 3.1600. A burial allowance is payable under certain circumstances to cover the burial and funeral expenses of a veteran and the expense of transporting the body to the place of burial. 38 U.S.C. § 2302; 38 C.F.R. § 3.1600. For example, if a veteran dies as a result of a service-connected disability or disabilities, certain burial benefits may be paid. 38 U.S.C. § 2307; 38 C.F.R. § 3.1600 (a). In this case, as determined above, the Veteran's death has been service connected. Consequently, the appellant's claim for burial benefits is warranted. See Id. ORDER Service connection for the cause of the Veteran's death is granted. The appeal seeking entitlement to VA burial benefits at the service-connected rate is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs