Citation Nr: 1808157 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-26 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1966 to February 1971. The Appellant is the Veteran's widow. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This matter was previously remanded by the Board in September 2014 and January 2015. The appellant testified before the undersigned Veterans Law Judge at an August 2012 Travel Board hearing. A copy of the transcript is associated with the file. FINDINGS OF FACT 1. The Veteran died in July 2010. The cause of death was determined to be hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest), respiratory failure and endocarditis. 2. The Veteran is presumed to have been exposed to herbicides while on active duty service in the Republic of Vietnam during the Vietnam Era. 3. The Veteran's diabetes mellitus is presumed to have been caused by his herbicide exposure in service. 4. The preponderance of the evidence is against a finding that the Veteran's cause of death was attributable to service, any incident of service, or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1116, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). A letter dated September 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claims. The letter informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The letter also explained to the appellant how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, specifically in the context of a claim for cause of death benefits under 38 U.S.C.A. § 1310 DIC, the United States Court of Appeals for Veterans Claims (Court) held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased Veteran's lifetime was not granted. Id. The September 2010 letter informed the appellant as to the conditions for which the Veteran was service-connected at the time of his death, what information and evidence was needed to support a claim for DIC. The claim was readjudicated most recently in a July 2015 Supplemental Statement of the Case. As such, the Board concludes that the letter provided the information to the appellant prescribed in Hupp. VA has met its duty to assist the appellant in the development of the claim. The Veteran's VA treatment records and examinations have been associated with the claims file. 38 U.S.C.A § 5103A, 38 C.F.R. § 3.159. Private treatment records have been obtained, to the extent possible. The appellant has not indicated nor does the record show the Veteran was in receipt of Social Security Administration (SSA) disability benefits. The appellant has at no time otherwise referenced outstanding records that she wanted VA to obtain or that she felt was relevant to the claims. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In DeLaRosa the Federal Circuit held that an opinion was not needed where "the even more restrictive" test of 38 U.S.C.A. § 5103A (d) was not met. DeLaRosa v. Peake, at 1322. Under the § 5103A (d) test, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d). The Federal Circuit has held that an appellant's assertion that one condition was caused by another was insufficient to trigger the duty to provide an examination or get an opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, VA medical opinions were provided in August 2011 and March 2015 regarding diabetes mellitus type II and the Veteran's cause of death. The Board has carefully reviewed the VA medical opinions of record and finds that the March 2015 opinion, along with the other evidence of record, is adequate to render a decision in this appeal. As noted above, the appellant also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103 (c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the appellant's claims. Significantly, neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2). As the appellant has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Service Connection for Cause of Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Diabetes mellitus will be presumed service-connected if a Veteran was exposed to herbicides in service, even if there is no record of the disease during service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides. 38 C.F.R. § 3.307. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116 (a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C.A. § 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. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered 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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312 (c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A lay person is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). Analysis A Certificate of Death issued by the State of Nebraska shows that the Veteran died on July [REDACTED], 2010 of hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis. Other significant conditions contributing to death but not resulting in the underlying causes listed above, included obesity, diabetes and obstructive sleep apnea. The Veteran was not service connected for any conditions at the time of his death. The appellant seeks service connection for the cause of the Veteran's death based on conditions not yet service connected. The appellant primarily contends that the Veteran's diabetes mellitus was caused by exposure to herbicides in Vietnam. The appellant also asserts that service connection is warranted for the Veteran's cause of death because type II diabetes, incurred as a result of exposure to herbicides in Vietnam, caused or contributed to the Veteran's death, either directly or by causing or aggravating his cardiac condition. Initially, the Board finds that the Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides during service. The DD Form 214 reflects service in the Republic of Vietnam as indicated by one year of foreign service and the Vietnam Service Medal. The Board next finds that, at the time of the Veteran's death, the Veteran had type II diabetes mellitus. Private treatment records show that the Veteran had controlled type II diabetes mellitus when he was admitted to the hospital prior to his death in July 2010. Given the Veteran's presumed exposure to herbicides in Vietnam, type II diabetes mellitus is presumed to be related to service. 38 C.F.R. § 3.309 (e) As noted above, the Veteran's death certificate listed his cause of death as hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis. Other significant conditions contributing to death but not resulting in the underlying causes listed above, included obesity, diabetes and obstructive sleep apnea. The Veteran's post-service treatment records show that the Veteran suffered from several cardiac conditions including hypertension, congestive heart failure and cardiomyopathy as evidenced in an August 1999 treatment record. A November 2000 treatment record also diagnosed the Veteran with cardiomegaly with pulmonary vascular congestion and small right effusions. In an April 2005 private treatment record it was noted that the Veteran's diabetes mellitus was a cardiac risk factor. Following the Veteran's death in July 2010 a VA medical opinion was obtain regarding the Veteran's cause of death. The VA physician determined that it was not possible to determine whether the diabetes materially or substantially contributed to the Veteran's cause of death, because he had no records to review. The appellant provided an April 2011 private medical opinion from Dr. BW, which stated that he had reviewed the Veteran's chart and concluded that heart disease and diabetes were both contributory to the Veteran's death. He noted, however, that the Veteran transferred care to a different clinic in May 2010 prior to his death and so the specifics of the contribution of these conditions would be unclear to him because he was not attending to his health at the time of his death. In addition to Dr. BW's opinion, the appellant also submitted a private medical opinion from Dr. DK, dated April 2011. Dr. DK wrote that the Veteran suffered from significant valvular heart disease requiring valve replacement in the past, most recently, a redo aortic and mitral valve replacement in June 2010. The Veteran also had long standing diabetes and cardiomyopathy from valvular heart disease with minimal coronary artery disease. The Veteran apparently had sudden onset arrhythmia requiring long cardiopulmonary resuscitation and hospitalization. Reviewing the records, Dr. DK found the cause of death was cardiac arrhythmia with subsequent hypoxic injury and eventually cardiorespiratory arrest. Dr. DK believed that the Veteran's cardiac condition, which included mild coronary artery disease, cardiomegaly, cardiomyopathy and valvular heart disease could have contributed to his significant arrhythmia which indirectly was the cause of his death. He also wrote that diabetes was an aggravating factor in his cardiac condition. In August 2011 the VA sought a new medical opinion regarding whether the Veteran's cause of death was related to diabetes. The VA physician, who also wrote the inconclusive July 2010 opinion, reviewed the c-file and records submitted by the appellant and spoke to her on the telephone. He determined that diabetes was not a major contributing factor to his demise. The Veteran had other medical illnesses that were much more severe than the diabetes, which were compounding and intertwined and caused his demise. The VA physician found that diabetes was one of many medical comorbities and it was certainly a contributing factor, but he had other medical comorbities that were much more severe. He concluded that diabetes was less likely to be a substantial/material contributor to his death, because other medical comorbities were much more serious. He could not find any evidence of aggravation. During the August 2012 Board hearing the appellant testified shortly before the Veteran's death she was informed by a doctor that the Veteran would have difficulty healing following valve replacement surgery due to his diabetes. In January 2015 the Board remand this matter in order to obtain a VA medical opinion that addressed whether diabetes "combined to cause death" or whether "it aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c) In March 2015 a new VA medical opinion was obtained. Upon a review of the record, the VA physician determined that it was less likely than not that the Veteran's diabetes mellitus type II caused or contributed to his death. He reasoned that records supported that Veteran's diabetes was not chronically elevated at the time of his death. The record supports his provider stated that his diabetes was under control. The medical record supported minimal coronary artery disease. (Coronary artery disease is commonly known complication of diabetes mellitus type II.) Review of the medical record also did not support other commonly known complications of diabetes such as diabetic peripheral neuropathy, diabetic nephropathy, retinopathy, peripheral vascular disease or diabetic dermopathy. The physician addressed the previous VA and private medical opinions and wrote that the medical opinions were noted and one provider felt diabetes was not an aggravating factor in his cardiac condition. No rationale was provided. Another provider concluded that heart disease and diabetes were both contributory, noting that he had significant problems with these conditions over the years; however he also stated that "the specifics of the contribution of these conditions would be unclear to me as I was not attending his health at the time of his death." The records do not support significant problems with diabetes control at the time of his death. The VA physician also determined that it was less likely than not that the Veteran's diabetes mellitus type II, affected a vital organ to the extent that the debilitating effects of the Veteran's diabetes rendered the Veteran less capable of resisting the effects of the other diseases. He noted that the medical records do not support complications of organs secondary to diabetes. Finally, the VA physician found that it was less likely than not that the Veteran's causes of death, as noted on his death certificate, are causally or etiologically related to the Veteran's period of active service, to include exposure to herbicides. He wrote that the records support that a provider of his diabetes noted his diabetes was under control. Records of May 2010 note diabetes under control. The Veteran's blood sugar was noted to be 127, nonfasting, during acute chest pain visit and after albuterol, both of which could likely raise the blood sugar acutely. Nevertheless, a blood sugar of 127 nonfasting is not a significantly abnormal finding. There were no records found to support poor control of blood sugar around the time of his death. The medical records did not support complications of diabetes mellitus type II. The medical record supported minimal coronary artery disease. (Coronary artery disease is commonly known complication of diabetes mellitus type II.) Thus the available evidence does not support the claim. The Board finds the Veteran's diabetes mellitus did not cause or contribute substantially or materially to his hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis which caused his death. Further, his hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis was not due to his exposure to herbicides in service. The most probative evidence of record is found to be the March 2015 VA medical opinion. This opinion is persuasive as it is based on a well-reasoned analysis and is consistent with the facts of the case, including the prior VA and private medical opinions. The opinion contains clear conclusions with supporting data and reflects consideration of the available medical literature and studies. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The physician who provided the opinion considered the theories of the case and included explanations of how he determined that diabetes did not cause or contribute significantly to the Veteran's cardiac condition or cause of death. The Board acknowledges the appellant's contentions that the Veteran's history of diabetes contributed substantially to his hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis. The Board is sympathetic with the appellant's contentions and that the Veteran died from hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis. The Board also acknowledges the connection between diabetes and the Veteran's cardiac condition. However, just because there is a connection between the two conditions does not necessarily mean that diabetes caused or substantially contributed to the hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis which caused the Veteran's death. The etiology of cardiac conditions and hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis are complex medical issues requiring training and expertise the appellant has not been shown to possess. While the appellant consistently reported her contentions and submitted relevant medical evidence in support, the medical opinions she submitted are outweighed by the March 2015 VA medical opinion, which as noted above, was based on a well-reasoned analysis and is consistent with the facts of the case, including the prior VA and private medical opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Thus, the weight of the probative evidence rests with the medical expert opinion from March 2015 which discussed the appellant's theories but determined no causal relationship between diabetes and hypoxic encephalopathy, due to, or as a consequence of PEA (pulseless electrical activity) arrest (cardiac arrest) respiratory failure and endocarditis. In sum, as the March 2015 medical opinion is the most probative evidence weighing against the appellant's claim, the claim must be denied. Although the appellant's case is sympathetic in nature, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. As such, service connection for cause of death is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs