Citation Nr: 18154643 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-05 518 DATE: November 30, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. During his lifetime, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling, and type II diabetes mellitus (diabetes), rated as 20 percent disabling. His combined disability rating was 40 percent. Service connection was not in effect for any other disability. 2. The cause of the Veteran’s death was possible respiratory failure, secondary to diffuse alveolar damage. 3. A service-connected disability did not cause or contribute materially or substantially to the Veteran’s death, combine with another disorder to cause his death, or aid or lend assistance to his death. CONCLUSION OF LAW The requirements for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1969 to March 1972, including service in the Republic of Vietnam. He died in February 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for the cause of the Veteran's death The appellant contends that service connection for the cause of the Veteran’s death is warranted because the Veteran’s service-connected diabetes caused his fatal pulmonary edema. In the alternative, the appellant contends that the Veteran’s death was related to ischemic heart disease (IHD), which was presumably related to his presumed exposure to herbicide agents in Vietnam. The Veteran served on active duty in the Republic of Vietnam and, absent evidence to the contrary, his exposure to herbicide agents is legally presumed. Factual Background The Veteran’s February 2008 certificate of death lists the cause of his death as pulmonary edema. No other contributing causes were identified. At the time of the Veteran’s death, service-connection was in effect for PTSD and diabetes, rated as 30 percent and 20 percent disabling, respectively. Service treatment records corresponding to the Veteran’s active duty are negative for pertinent complaints or abnormalities. At his February 1972 military separation examination, the Veteran’s lungs and chest were examined and determined to be normal. A chest X-ray was negative. All other findings indicated that no pertinent abnormalities were present. In December 1984, more than a decade after discharge from service, the Veteran underwent a microdiscectomy for a herniated nucleus pulposus which resulted from a back injury he sustained at work. The final diagnosis made in February 1985 was a “herniated nucleus pulpous at the L5-S1 level.” No other pertinent abnormalities were identified at that time. Additional private clinical records show that in August 2001, the Veteran was diagnosed as having diabetes mellitus. The Veteran’s medical history included smoking 2 to 2½ packs per day and hyperlipidemia. In a May 2003 rating decision, the RO granted service connection for diabetes mellitus and assigned an initial 20 percent rating, effective May 8, 2001, the date of a liberalizing law adding diabetes mellitus to a list of presumptive herbicide agent-related diseases. That 20 percent rating remained in effect until the Veteran’s death. In a February 2004 rating decision, the RO granted the Veteran’s claim of service connection for PTSD and assigned an initial 30 percent rating, effective April 21, 2003. That 30 percent rating remained in effect until the Veteran’s death. Subsequent clinical records show continued treatment for PTSD and diabetes mellitus, as well as other medical conditions, including depression and hypercholesterolemia. In December 2006, the Veteran underwent a cardiac consultation for concerns related to possible cardiac vegetations of an episode of cellulitis in his elbow. An echocardiogram showed that his estimated left ventricular ejection fraction (LVEF) was 60 percent, which was noted to be normal. The interpretation summary also listed type I diastolic dysfunction and normal echocardiographic anatomy. In August 2007, the Veteran was hospitalized for a preoperative workup and lumbar decompression. Following the operation, he was sent to the post anesthesia care unit (PACU) in stable condition. He suffered acute blood loss anemia and exhibited signs of tachycardia but his symptoms resolved after receiving red blood cells. In September 2007, the Veteran was diagnosed with lumbar spinal wound infection after complaining of fever and chills. He received multiple operations and was intubated due to his critical condition. Copious purulence deep to the fascia was found 17 days after his initial surgery with elevated white blood cell count and spike fevers. After repeat exploration of his wound, he was returned to SICU in stable condition. In October 2007, the Veteran underwent a tracheostomy after he developed respiratory insufficiency. In November 2007, the Veteran was diagnosed with sepsis abdominal abscess of unknown etiology. After treatment he was transferred to the PACU and was noted to be in good condition. In February 2008, the Veteran was diagnosed with “laminectomy complicated by multiple infections and surgical procedures.” He was diagnosed with antibiotic associated diarrhea and secondary diagnoses of “DVT, spinal abscess, HTN, GERD, eczema, PTSD, depression, diabetes, hyperlipidemia, long complicated post-surgical course.” He passed away on February 19, 2008 and an autopsy was performed on February 20, 2008. The autopsy report notes a history of lumbar surgery in August 2007 complicated by a lumbar wound infection, septicemia, peg tube insertion, multiple abdominal infections, abscess formation, abdominal surgeries. The anatomic diagnoses included diffuse alveolar damage, centriacinar and panacinar emphysema, cardiomegaly, calcific coronary artery disease without occlusion, and severe calcific atherosclerosis of the infrarenal aorta. The pathologist determined that the cause of the Veteran’s death was possible respiratory failure secondary to diffuse alveolar damage. Other remarkable findings were passive liver congestion and intestinal adhesions. In March 2008, at the request of the appellant, the Veteran’s VA physician indicated that she had completed a letter regarding the Veteran’s health prior to his laminectomy. The physician included a problem list documenting the Veteran’s health problems prior to that surgery. She noted that it did not include listings for lung disease or coronary artery disease. In November 2012, the appellant submitted medical literature from the University of Maryland Medical Center, not specific to the Veteran, that listed diabetes as one of “some risk factors for pulmonary edema.” In the same month, an internist at the Cleveland VA medical center stated that “the main mechanism by which diabetes can be a potential risk factor for the development of pulmonary edema is via the risk that diabetes confers on the development of coronary artery disease or IHD which can lead to cardiomyopathy and pulmonary edema.” He then opined that the Veteran “did not have any objective evidence in his medical records to show that he had coronary artery disease, IHD, or any heart problems,” and therefore “it is less likely than not that the Veteran’s service-connected disabilities were a principal cause or a contributory cause of his death due to pulmonary edema.” In June 2016, a VA physician, after reviewing available records, opined that it was less likely as not that the Veteran’s service-connected diabetes led to the slow healing of wounds from surgery. He explained that there was no evidence in the record that the Veteran suffered from microvascular disease that is the result of poorly controlled diabetes, and that the Veteran’s diabetes was “relatively well controlled,” “making any effect on the immune system likely to be insignificant.” On whether the Veteran’s service-connected diabetes and PTSD caused or contributed to the Veteran’s death, the examiner opined that it was less likely as not. He explained that the Veteran had had surgery for a nonservice-connected spine condition which unfortunately was complicated by infections which led to his death. The physician explained that the Veteran’s diabetes was well controlled and it was unlikely that it left the Veteran immune-compromised. There was also no evidence of diabetic vascular disease that may have slowed healing. Additionally, the physician noted that although coronary artery disease was noted on autopsy, the Veteran died from complications of surgery to treat a nonservice-connected condition. He noted that the Veteran had not exhibited evidence of ischemic heart disease prior to his death which would have been in the form of chest pain, shortness of breath, a positive exercise stress test, an echocardiogram with wall motion abnormality, etc. He noted that the autopsy report further did not identify any degree of stenosis and that, generally speaking, coronaries needed to be 70% occluded to cause ischemia. Although the Veteran exhibited coronary artery disease on autopsy, he did not exhibit cardiac muscle damage. Moreover, there was no clinical evidence of coronary artery disease prior to his death because the coronaries were not occluded. Thus, the finding of calcific coronaries on autopsy was of little clinical significance. The examiner also opined that none of the service-connected conditions or combination of his service-connected conditions caused debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. He stated that the complications from the surgery for spine injury, which was not service-connected, led to the Veteran’s death. As rationale, he noted that the Veteran’s diabetes was unlikely to have compromised the Veteran’s immune system as it was well controlled, and that there was no evidence of diabetic vascular disease that may have slowed healing. Analysis To establish service connection for the cause of the Veteran’s death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. 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. It is not sufficient to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). 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. 38 C.F.R. § 3.312(c)(3). 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; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide agent exposure include ischemic heart disease (which includes myocardial infarction, atherosclerotic cardiovascular disease, coronary artery disease, and coronary bypass surgery, and stable, unstable, and Prinzmetal’s angina). Upon weighing the evidence of record, the Board finds that the preponderance of the evidence is against the claim of service connection for the cause of the Veteran’s death. The appellant contends that service connection for the cause of Veteran’s death is warranted because the Veteran’s service-connected diabetes is a possible factor of pulmonary edema, or, in the alternative, that the Veteran suffered from IHD as a result of his exposure to herbicide agents during his service and that that condition caused or contributed to his death. As set forth above, however, the RO obtained a medical opinion in this case. After reviewing the record on appeal, including the documentation submitted by the appellant and the Veteran’s autopsy report, the examiner concluded that the Veteran’s service-connected disabilities did not cause or contribute to his death. The Board finds the June 2016 VA medical opinion highly probative as it was based on a review of the entire record on appeal, addresses the appellant’s contentions, is consistent with the clinical evidence of record, and includes a rationale for the conclusions provided. The Board has carefully considered the appellant’s contentions regarding the cause of the Veteran’s death but finds that they are outweighed by the conclusions of the June 2016 VA physician, given his clinical expertise. The Board further notes that although the Veteran’s exposure to herbicide agents is legally presumed due to his service in the Republic of Vietnam, and although a presumption of service connection is warranted for coronary artery disease, a condition noted on the Veteran’s autopsy report, the probative evidence in this case establishes that ischemic heart disease (or coronary artery disease) did not cause or contribute to the Veteran’s death. Rather, the June 2016 physician explained that the findings of coronary artery disease shown on autopsy were clinical insignificant. Thus, the presumptive regulations do not provide a basis upon which to grant the claim of service connection for the cause of the Veteran’s death. There is no probative evidence of record which contradicts the examiner’s conclusion or otherwise suggests that the Veteran’s pulmonary edema, or possible respiratory failure, were incurred during active service or were otherwise causally related to service. The medical literature from University of Maryland Medical Center that list diabetes as a possible “factor” of pulmonary edema is not a medical opinion that specifically considered the Veteran’s medical record which renders it of lower probative value than the conclusions of the June 2016 VA physician as those were based on a review of facts specific to the Veteran’s case. The Board has also carefully considered the appellant’s contentions to the effect that his death was the result of service. Such opinions, however, involve medical inquiry into physical processes and functioning. Such internal processes are not readily observable and thus the opinion is not within the competence of the appellant or other lay persons. Questions of competency notwithstanding, the Board finds the June 2016 VA examiner’s opinion to be of greater probative weight than the lay assertions as to the cause of the Veteran’s death. Although the Board recognizes the Veteran’s honorable service on behalf of this country and is deeply sympathetic to the appellant’s loss of her husband, in light of the evidence discussed above, the preponderance of the evidence is against the claim of service connection for the cause of the Veteran’s death. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53¬–56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel