Citation Nr: 18156470 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 04-40 525 DATE: December 10, 2018 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to Dependents’ Educational Assistance benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. The Veteran died in February 1989 from cardiopulmonary arrest, with aspiration listed as a contributing cause of death. 2. The Veteran’s death certificate also notes pneumococcal pneumonia and delirium tremens as other significant conditions that contributed to death, but that these disorders did not result in the cardiopulmonary arrest which caused death. 3. The Veteran was not service-connected for any disability at the time of his death. 4. Cardiopulmonary arrest and the aforementioned contributing causes of death are not etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310, 3.312 (2017). 2. The criteria for entitlement to Dependents’ Educational Assistance benefits under Chapter 35, Title 38, United States Code, have not been met. 38 U.S.C. § 3500 (2012); 38 C.F.R. § 21.3001 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February to May 1975. He died in February 1989. The appellant is his surviving spouse. She asserts that service connection is warranted for the Veteran’s cause of death. At the time of the Veteran’s death, he was not service connected for any disabilities and no claims were pending. To establish service connection for the cause of a veteran’s death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. See 38 C.F.R. § 3.312 (a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312 (b). A service-connected disability will be considered a contributory cause of death when it combined to cause death, or aided or lent assistance to the production of 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)(1). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). For the purposes of evaluating evidence, to include lay statements about a veteran’s heath conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For the purposes of dependents’ educational assistance under Chapter 35, the surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510, 3512; 38 C.F.R. §§ 3.807 (a), 21.3020, 21.3021. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran died in February 1989. The death certificate lists cardiopulmonary arrest as the immediate cause of death and aspiration as a contributing cause of death. It also notes pneumococcal pneumonia and delirium tremens as other significant conditions that contributed to the Veteran’s death, but which did not result in the cardiopulmonary arrest which caused death. The appellant contends that these disorders are related to respiratory disorders the Veteran experienced during active service. Specifically, she testified in March 2005 that the Veteran’s bronchial pneumonia and asthma put such a strain on his heart that it caused his death. As noted in a service treatment record dated in April 1975, the Veteran was diagnosed with bronchitis during his three months of active service. To this point, the Board notes that the appellant testified before a former member of the Board in March 2005 that the Veteran had frequently had a cold, was a smoker, and kept saying that he had pneumonia. She also stated that the Veteran told her he almost died in service, was kept in the hospital, was sleeping in swamps, and that everything that happened to him aggravated his asthma. She also testified that the Veteran told her he was medically discharged and was receiving treatment for his condition at least in 1978 from a VA hospital that she could not remember. Finally, as stated above, the appellant stated that the Veteran was in and out of the hospital for asthma and that he had a chronic history of bronchial pneumonia. The Board notes that the Veteran’s DD Form 214 is of record and does not show that he was medically discharged. In January 2010, the Board denied the issues on appeal. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans’ Claims (Court). In February 2011 the Court vacated the Board’s decision and remanded the case to the Board for action consistent with a joint motion for remand (JMR). In response to the JMR, in November 2011, the Board referred the case to the VHA for an advisory medical opinion. Dr. O.A.H., M.D., pulmonologist, submitted an advisory medical opinion in December 2011 in which an opinion was provided that it was very unlikely that the Veteran’s military experience was a factor in his death. The doctor supported the opinion by stating in pertinent part that community-acquired pneumonia is a common phenomenon; pneumococcal pneumonia is the most common cause of community-acquired pneumonia; alcoholism is considered a risk factor for pneumococcal pneumonia; alterations in the level of consciousness that can be associated with alcohol withdrawal also predispose to microaspiration and can lead to acute respiratory compromise; alterations in level of consciousness due to alcohol abuse can also result in microaspiration of upper airway secretions leading to recurrent respiratory issues such as bronchitis or pneumonia. In a June 2012 decision, the Board again denied the appellant’s claim. She appealed the case to the Court and, in a February 2013 JMR, the Court vacated the Board’s decision and remanded the case for further action. Specifically, the Court found that the Board had not ensured compliance with the February 2011 JMR, in which it found that the Board failed to address the appellant’s testimony that the Veteran was “in and out” of the hospital for asthma and had a chronic history of bronchial pneumonia. In December 2013, the Board remanded the appeal to the agency of original jurisdiction (AOJ) to obtain the Veteran’s VA treatment records and a new opinion concerning his cause of death. In October 2017, a VA examiner concluded that it was less likely than not that the Veteran’s death was etiologically related to service. As rationale, he concluded that the record showed diagnoses of both an upper respiratory infection and bronchitis while in service, but that the conditions had resolved without any evidence of sequelae or complications. In February 2018, the Board remanded for an addendum opinion, finding that the VA examiner had not provided an adequate medical basis for his conclusion. Specifically, the Board found that the VA examiner failed to address the appellant’s contentions that the Veteran had asthma chronically and continuously after service. In a February 2018 addendum opinion, the VA examiner noted the appellant’s specific contentions, but countered them by incorporating the December 2011 findings of Dr. O.A.H., in which she noted that the Veteran’s pneumonia was likely caused by his alcoholism, not his military service. In August 2018, the Board once again found that an addendum opinion was warranted, as the previous opinion did not adequately address the questions posed in the Board’s previous remand. Specifically, the Board asked that the examiner address the appellant’s contentions that the Veteran displayed chronic and continuous symptoms such as coughing, breathing problems, and was sick after service. In the resulting October 2018 addendum opinion, the same VA examiner concluded that the Veteran’s death was not related to service. In support of this conclusion, he specifically noted the appellant’s testimony regarding the Veteran’s post-service symptomatology. He found that there was no supporting evidence of such complaints. The examiner cited to the Veteran’s post-service VA treatment records, which did not show a diagnosis of asthma nor evidence of recurrent respiratory infections requiring hospitalization for asthma. He cited specific medical literature which noted that a clinical asthma diagnosis is based on evidence of recurrent respiratory symptoms, reversibility with anti-asthma treatment, and variable airflow obstruction. Here, there was no evidence of record that the Veteran met such clinical criteria for a diagnosis of asthma. The Board notes that the Veteran’s post-service VA treatment records show that he was seen at VA with complaints that he himself characterized as asthma and bronchitis, but which were not diagnosed as such. In May 1984, he was seen at VA with such a complaint; on examination, his lungs were found to be clear. Two days later, he returned to VA and reported that he had bronchitis. Examination was normal. A June 1984 respiratory assessment showed his chest was normal, and his breathing was normal. An August 1984 chest x-ray was normal. After review of all the evidence of record, the Board finds the cumulative opinion provided by the October 2017 examiner to be the most probative on the matter, as it was based on a thorough review of all of the evidence of record and directly addressed the appellant’s contentions. The examiner offered a fully articulated opinion with thorough rationale and plausible explanations for concluding that the Veteran’s brief military service did not cause his death. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Simply put, the probative weight of the medical evidence in this case is against a finding that the Veteran developed breathing disabilities while in service which led to his death 14 years later. Notably, there is no medical opinion of record to the contrary. Insomuch as the appellant has attempted to establish a nexus through her own lay assertions, the Board finds that although she is competent to note her observations of the Veteran’s symptoms, the etiology of the Veteran’s conditions falls outside the realm of common knowledge of a layperson. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Nevertheless, even if the appellant as a layperson was competent to provide such an opinion, the findings of the October 2017 examiner are more probative. The VA examiner has medical training, expertise, and education that the appellant is not shown to have. As such, the medical opinion is given more probative weight than her lay assertions. Accordingly, while very sympathetic to the appellant’s claim, the Board finds that service connection for the cause of the Veteran’s death is not warranted. It follows, as the Veteran did not have a permanent and total service-connected disability at the time of his death, and, as decided above, the cause of his death has not been shown to be service-related, that the appellant does not meet the criteria for eligibility for Dependents’ Educational Assistance. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the most competent, credible, and probative evidence is against the appellant’s claims. As such, that doctrine is not applicable in the instant appeal, and her claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel