Citation Nr: 18153006 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-43 031 DATE: November 27, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died in November 2007 from an respiratory arrest and cardiac arrest. 2. At the time of the Veteran’s death, service connection was not in effect for any disability. 3. The Veteran had served in Vietnam. 4. The Veteran did not have arteriosclerotic heart disease, and the cause of his death was not otherwise etiologically related to his service. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.312 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1963 to October 1967. He died in November 2007. The appellant is the deceased Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 decision of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Cause of Death The appellant contends that the Veteran’s death resulted from arteriosclerotic heart disease brought on by herbicide exposure during his service in Vietnam. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). To establish service connection for the cause of a Veteran’s death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected disability affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312 (c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected disability was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected disability accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. See 38 C.F.R. § 3.312 (c)(4) (2015). The Veteran died in November 2007. His death certificate indicates that the immediate cause of death was respiratory arrest and his secondary cause of death was cardiac arrest. At the time of the Veteran’s death, service connection was not in effect for any disability. Therefore, the Board must consider whether service connection for any disease process listed on his death certificate is warranted. The Board notes that the record confirms the Veteran served in the Republic of Vietnam during the Vietnam Era, and he is therefore presumed to have been exposed to herbicides. See 38 U.S.C. § 1116 (f) (2012). The Board notes further that ischemic heart disease is presumptively service-connected if a Veteran was exposed to herbicide agents while on active duty. As the Board will discuss in more detail below, the weight of the evidence does not establish that the Veteran was diagnosed with arteriosclerotic heart disease (ischemic heart disease) at the time of his death. The Veteran’s service treatment records (STRs) are silent as to signs, symptoms or diagnoses of ischemic heart disease. An August 2006 chest x-ray indicated a history of arteriosclerotic heart disease. The contemporary chest x-ray did not show any heart enlargement. In an October 2015 letter, Dr. N. Q., an associate of the Veteran’s treating physician for COPD with dyspnea, indicated that the Veteran’s “chest pain associated with some of the ST-T changes which the Veteran had on his EKG would indicate that he probably had arteriosclerotic heart disease.” Dr. N. Q. further noted that the Veteran’s several visits to the hospital presenting with chest pain, his ST-T changes on EKG’s, pleural effusion on chest x-rays and then ventricular fibrillation at the time of his death would all indicate that the Veteran had arteriosclerotic heart disease. Dr. N. Q. indicated that the diagnosis of arteriosclerotic heart disease was based on finding coronary artery occlusions which is best documented by cardiac catherization but that the Veteran did not undergo cardiac catherization because there was no cardiac catherization available where the Veteran lived at that time in Bluefield, West Virginia. In a December 2015 VA medical opinion, the examiner opined that the Veteran’s condition claimed was much less likely than not ( much less than a 50 percent or greater probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s death certificate documented that the only causes of death listed on the death certificate were respiratory arrest due to cardiac arrest and that no specific heart or lung conditions were noted on the death certificate. The examiner noted the October 2015 letter submitted by Dr. N. Q. The examiner indicated that it was well known that chest pain in a patient with severe COPD could be caused by multiple conditions other than CAD. The examiner also noted that EKG changes of ST-T waves are also well known to be non-specific; in other words, not specific for arteriosclerotic heart disease. The examiner did report that the Veteran had a pleural effusion but that there was no documentation that the pleural effusion was from congestive heart failure that in turn was from arteriosclerotic heart disease. The examiner acknowledged that although the Veteran was unable to have a cardiac catherization in his local community, he is described as having chest pain prior to his sudden death that could have led to a scheduled transfer to a facility that had the capability to conduct a cardiac catherization. The examiner noted that echocardiogram must surely have been available and, if the concern about heart disease was indeed considered, must have been done, but that there was no mention of echocardiogram results in Dr. N. Q.’s October 2015 letter. The VA examiner acknowledged the August 2006 chest x-ray notes that indicated a history of arteriosclerotic heart disease but the examiner indicated that the note did not specify on what basis the diagnosis of arteriosclerotic heart disease was made. The examiner also noted that the contemporary chest x-ray did not show any heart enlargement. The examiner noted that in his opinion in the absence of medical evidence that documents arteriosclerotic heart disease, and in an individual who had multiple and extensive pulmonary evaluation but no evidence submitted by a cardiology specialist who doctored the Veteran’s claimed heart disease, and no evidence from the documents of the 911 responders and the local ER medical staff to where the Veteran was transported as noted on the death certificate, the examiner determined that the Veteran did not have arteriosclerotic heart disease. As stated above, service connection requires that there be a current disability. In the absence of a current disability, there can be no grant of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1995). Here, Dr. H. Q.’s diagnosis of arteriosclerotic cardiovascular disease warrants much less probative weight when compared to the other, more probative medical evidence of record which does not provide medically sound diagnostic impressions of arteriosclerotic cardiovascular disease. In this regard, the Board may favor the opinion of one competent medical professional over that of another as long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based upon the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are the province of the Board as adjudicators. Guerrieri v. Brown, 7 Vet. App. (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of the medical opinion may be reduced if the examiner fails to explain a basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). As set forth above, the December 2015 VA examiner opined that a diagnosis of arteriosclerotic heart disease is unsupportable based upon the evidence of record and medical knowledge. The Board affords this opinion great probative weight. The examiner’s opinion was based upon a complete review of the claims file, and also cited relevant evidence in support of the conclusions reached. The Board has also considered Dr. N. Q.’s diagnosis of arteriosclerotic heart disease. However, the Board affords this opinion far less probative weight than the December 2015 VA opinion. Specifically, Dr. N. Q. did not provide any basis or rationale for the medical conclusion reached. Furthermore, the evidence of record does not show that Dr. N. Q. reviewed the Veteran’s medical history or claims file. Therefore, because Dr. N. Q.’s diagnosis of arteriosclerotic cardiovascular disease is not supported by the evidence of record, it is afforded minimal probative weight. Since the claim involves arteriosclerotic heart disease, the Board has considered the provisions of 38 U.S.C. § 1101 (2012) and 38 C.F.R. § 3.303 (b) (2017). Clearly, the concepts of chronicity and continuity are for consideration. Nevertheless, the controlling statutes 38 U.S.C. §§ 1110 and 1131 (2012) require the existence of disability, in addition to underlying disease. Here, chronicity is legitimately questioned and in light of the medical evidence, any argument regarding continuity fails. 38 C.F.R. § 3.303 (b) (2017) does not replace the requirement of a current disability. An examination that complied with regulations and the use of the term “history” reflects that arteriosclerotic heart disease, as a disease process, was not “noted” anywhere in the evidence of record. As a consequence of this absence, chronicity may be questioned legitimately. As stated above, the Board has fully considered the appellant’s contentions that the Veteran’s herbicide exposure in Vietnam caused the disease, which, she asserts was the cause of his death. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is “that which comes to the witness through the use of the senses-that which is heard, felt, seen, smelled, or tasted”). Nevertheless, diagnosing an ischemic or nonischemic heart disorder and then determining whether the heart disorder caused death, contributed substantially or materially to death; or combined with another disability to cause his death; or aided or lent assistance to death is beyond the scope of lay observation. See Id. Thus, a determination as to the cause of the Veteran’s death is not susceptible of lay opinion and requires specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing that the question of whether lay evidence is competent and sufficient is an issue to be addressed by the Board); Layno, 6 Vet. App. at 469-70. As such, the appellant’s lay assertions do not constitute competent evidence concerning medical factors that might have contributed to the Veteran’s death. 38 C.F.R. § 3.159 (a)(1) (2017) (“competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions,”). In summary, the most competent medical evidence of record does not support a finding that service connection for cause of death is warranted. The Veteran did not have arteriosclerotic cardiovascular disease at the time of death. Accordingly, after weighing all the evidence, the Board finds the preponderance of the evidence is against the appellant’s claim for entitlement to service connection for the cause of Veteran’s death, and the benefit-of-the-doubt standard of proof does not apply. See 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel