Citation Nr: 1809231 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 12-31 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1969. He died in February 2011 at the age of 63 and the appellant claim as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The claim was remanded by the Board in October 2015 and October 2017 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran died in February 2011; the immediate cause of death was gastrointestinal bleeding and anemia secondary to an acute hemorrhage, with an etiology of peptic ulcer disease and cirrhosis of the liver. 2. At the time of his death, the Veteran was in receipt of a 60 percent rating for meniscectomy residuals status post left total knee replacement with laxity and effusion. 3. The cause of the Veteran's death was not etiologically related to service or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 5103A, 5107 (2012); 38 C.F.R. §§ 3.310, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 of 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 the 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. It must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). Therefore, resolution of the issue is two-fold: (i) did a service-connected disability cause the Veteran's death or (ii) were the causes of his death entitled to service-connection. In this case, the Veteran died in February 2011 at the age of 63. His death certificate lists the immediate cause of death as gastrointestinal bleeding and anemia secondary to an acute hemorrhage, with an etiology of peptic ulcer disease and cirrhosis of the liver. At the time of his death, he was only service-connected for a left knee disability. Thus, the first level of inquiry is whether his service-connected left knee disability substantially or materially to his death. The record contains no such evidence nor can it be presupposed that such a nexus exists between the Veteran's left knee disability and his causes of death, as they involve separate and distinct bodily systems. However, the record indicates that the Veteran had a history of using nonsteroidal anti-inflammatory medication (NSAIDs) to minimize his left knee pain. Thus, in October 2017, the Board remanded this claim to obtain a medical opinion regarding the possible causal nexus between the Veteran's long-term NSAID use and his death. In a December 2017 medical opinion, the clinician concluded that it was less likely than not that the Veteran's long-term NSAID use was etiologically related to his death. In doing so, the clinician noted that the Veteran underwent hydrocelectomy and hernia repair in February 2011 and opined that his post-surgery use of Aleve and ibuprofen was "just as likely as not" to have caused his upper gastrointestinal bleeding caused by diffuse ulcer disease, as these conditions were well-known adverse reactions to those medications. It was noted that there was no medical evidence that the Veteran was taking these medications postoperatively to treat his left knee pain. As such, the clinician concluded that although the Veteran's death was directly related to the ingestion of Aleve and ibuprofen, he was taking the medications for his postoperative pain and not for his service-connected knee disability. The clinician further considered whether the Veteran's long-term NSAID used contributed to his development of cirrhosis, which typically took years to develop. In doing so, the clinician noted that hepatotoxicity, but not cirrhosis, was identified as an adverse side effect of ibuprofen, but that the incidence was noted to be less than one percent. Similarly, the noted side effects of Aleve as related to the liver included hepatic failure, hepatitis, and hepatotoxicity, with an occurrence of less than one percent. Thus, the clinician concluded that it was less likely than not that the Veteran's long-term use of ibuprofen and Aleve cause his intractable bleeding. The Board affords significant probative value to the above opinions, which are supported by detailed rationales which clearly account for the Veteran's entire medical history, including the nature of his various conditions and the potential impact of his long-term NSAID use. The opinions are further supported by the additional evidence of record, to include a negative November 2016 VA opinion and the absence of a positive nexus opinion from the record. See VA examination dated November 2016 (noting there "is no evidence in the extensive documentation that this veteran's service-connected knee condition, including medication that [the] veteran may have [previously] taken for his knee condition[,] contributed to his death"). Accordingly, the Board concludes that no nexus exists between the Veteran's knee-related NSAID use and his death. Next, the Board has considered whether the causes of the Veteran's death were related to his service in Vietnam, as the appellant claims. In such a case, the record must reflect: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). The Veteran has confirmed service in Vietnam for 5 months in 1968; therefore, exposure to herbicide agents is presumed. However, none of the identified causes of death are presumptively linked to herbicide exposure, such that presumptive service connection is not for application in this case. Next, service treatment records are negative for complaint of, treatment for, or a diagnosis related to gastrointestinal hemorrhage, anemia, peptic ulcer disease, or cirrhosis. Moreover, none of those disorders were noted for many years after service. Further, there is no medical nexus between those disorders and service. Therefore, direct service-connection is not warranted for any of the disorders leading to the Veteran's death. Next, while the Veteran had a history of coronary artery disease (a disease that is presumptively linked to herbicide exposure) and hypertension, these disabilities were not identified as causes related to his death. Instead, a VA examiner concluded in November 2016 and December 2017 that there was no evidence that hypertension or coronary artery disease contributed to his death, or that his death was otherwise related to exposure to herbicide agents. Moreover, the December 2017 opinion noted that although he had profound anemia as a result of his severe gastrointestinal bleeding, he developed no cardiac symptoms as a result. Thus, neither hypertension or coronary artery disease were etiologically related to his death. The Board has considered the appellant's lay statements that a nexus exists between the Veteran's service and his death. However, without appropriate medical training and expertise, which she has not demonstrated, she is not competent to provide an opinion regarding the cause of the Veteran's death. Accordingly, the Board affords greater probative value to the medical evidence of record in assessing the merits of this claim. Thus, the most probative evidence of record does not indicate that the Veteran's service-connected knee disability or the treatment related to it was etiologically related to his death, that his exposure to herbicide agents was etiologically linked to his death, or that his identified cause of death was etiologically linked to service. Instead, the evidence of record indicates that the Veteran's death was due to his post-surgical ingestion of certain medications. Accordingly, there is no basis upon which to grant the claim. In sum, the preponderance of the evidence weighs against the claim and the appeal is denied. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs