Citation Nr: 18152748 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 14-16 119 DATE: November 26, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran was not service connected for any disability during his lifetime. 2. The Veteran died in April 2007. 3. The immediate cause of the Veteran’s death, as shown on the death certificate, was chronic obstructive pulmonary disease (COPD) with atrial fibrillation contributing to death but not resulting in the underlying cause. 4. A disability of service origin did not cause or contribute substantially or materially to the Veteran’s death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Army from January 1959 to February 1980 with confirmed service in the Republic of Vietnam. He died in April 2007. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2014. The Board remanded the appeal in March 2016. 1. Entitlement to service connection for the cause of the Veteran’s death is denied. The Appellant asserts the Veteran’s fatal COPD and atrial fibrillation are due to service or ischemic heart disease (a condition presumptively service-connected in cases where exposure to herbicide agents is conceded). See May 2007 and August 2010 VA Forms 21-534, “Application for Dependency and Indemnity Compensation (DIC)” and the August 2010 VA Form 21-4138, “Statement in Support of Claim.” DIC is available to a surviving spouse who can establish that a veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Service connection for the cause of a Veteran’s death requires a showing that either the fatal disorder or disease was incurred in, or aggravated by, service or, in some instances, was manifest to a compensable degree within one year of service discharge and either caused or contributed substantially or materially to the cause of death. 38 U.S.C. §§ 1110, 1112, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312. For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran’s use of tobacco products during service. See 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Certain chronic diseases, including cardiovascular disease, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012). In addition, there are certain diseases, including ischemic heart disease, that are associated with exposure to “herbicide agents” during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Notably, neither atrial fibrillation or COPD are among these diseases. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Here, the immediate cause of the Veteran’s death, as shown on the April 2007 death certificate, was chronic obstructive pulmonary disease (COPD) with atrial fibrillation contributing to death but not resulting in the underlying cause. See Death Certificate. The Veteran’s service treatment records (STRs) show complaints of bronchitis and chest pain in April 1963, June 1963, October 1967, January 1976, and April 1977. The exit examination was silent as to any complaints, symptoms, or a diagnosis of COPD, atrial fibrillation, or ischemic heart disease. However, in-service exposure to herbicide agents is conceded as a result of the Veteran’s Vietnam service. See Veteran’s DD Form 214 and service personnel records. Available treatment records indicate a diagnosis of “early COPD” in April 1998, 18 years after discharge. The Veteran denied any heart problems in April 2006, and an electrocardiogram (EKG) was normal in December 2005. These records do not indicate a diagnosis of ischemic heart disease at any time or of atrial fibrillation within a year of service discharge, and do not support service connection for atrial fibrillation based on a continuity of symptomatology. See VA treatment records. A VA examiner reviewed the Veteran’s claim file in July 2011 and concluded that the Veteran’s atrial fibrillation did not contribute to the Veteran’s cause of death and was not caused by or the result of ischemic heart disease, as it is an alteration of the electrical system of the heart. The Board-ordered March 2016 remand requested that another opinion to determine whether COPD or atrial fibrillation were otherwise directly related to service. The May 2016 examiner found it was not at least as likely as not that COPD or atrial fibrillation had their onset in service or were otherwise related to service, to include as a result of presumed herbicide agent exposure and documented treatment therein, as well as the Appellant’s testimony that the Veteran had chest pains ever since the 1970s. As rationale, the examiner, relying on the Veteran’s STRs, noted the Veteran was in good health at his discharge, with normal lung and heart examinations at separation and a normal electrocardiogram (EKG) in February 1980. The examiner emphasized that the earliest diagnosis of COPD was in April 1998, over 18 years post-discharge. The examiner also emphasized that there is no medical literature to suggest herbicide agent exposure caused the Veteran’s COPD or atrial fibrillation. She noted that atrial fibrillation occurs when the two upper chambers of the heart experience chaotic electrical signals, and noted the most common causes of the condition, none of which relate to service or herbicide agent exposure. As for COPD, the examiner noted that cigarette smoking is the main cause of COPD in the United States. Notably, VA treatment records indicate that the Veteran was a tobacco smoker as late as 2003. See September 2004 VA treatment records. 38 C.F.R. 3.300. There is no competent evidence to the contrary. The only evidence of record supporting the Appellant’s claim are her lay statements and internet articles referenced in her October 2018 brief. Although a lay person such as the Appellant is competent to relate her observations of the Veteran’s chest pains, she is not competent to opine as to the etiology of the Veteran’s fatal lung disease or his heart disorder, as that question requires medical expertise. Therefore, the appellant’s lay statements as to nexus are of no probative value. With regard to the referenced internet articles, the Board emphasizes that the source of the first article is not a reputable medical entity, and the information contained therein is general and not specific to the Veteran’s case. Specifically, the first article echoes the VA examiner’s findings that COPD is primarily caused by smoking. To the extent it references herbicide agents as a potential cause of COPD, the Board emphasizes that the “results are still being analyzed before findings can be published,” and therefore it cannot serve to refute the findings of the VA examiner. The second article discusses the COPD as an independent risk factor for atrial fibrillation, which is irrelevant to the medical question presented in this case, as the Board has determined for reasons outlined above that COPD is not due to service. Moreover, as with the first article submitted, it is general and not specific to the circumstances of the Veteran’s case. Thus, the Board finds that these documents are of low probative value, and do not require further inquiry via a specialist’s opinion, as requested by the Appellant. Notably, the Appellant did not challenge the qualifications of the VA examiner. See October 2018 Appellate Brief (“We have no reason to call into question the qualifications of the mentioned Nurse Practitioner.”) The Board finds the September 2016 medical opinion to be highly probative on whether there is a nexus between the Veteran’s atrial fibrillation and fatal COPD and active duty service, to include herbicide agent exposure therein. The examiner based her well-reasoned opinion on the pertinent information in the case and included the underlying reasons for her conclusions, which are not contradicted by the other competent evidence of record. In summary, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran’s death. Accordingly, the benefit-of-the-doubt doctrine is not applicable in the instant case, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel