Citation Nr: 1817963 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-01 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure. 2. Entitlement to service connection for a disability of the central nervous system or brain, claimed as Parkinson's disease, to include as due to herbicide exposure. 3. Entitlement to special monthly compensation based (SMC) on aid and attendance/housebound. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and A.P. ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. He died in January 2012. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction over the case was subsequently transferred to the RO in Providence, Rhode Island. The appellant and A.P. provided testimony before the undersigned during a May 2014 travel Board hearing at the RO. During the pendency of this appeal, the RO allowed for the appellant to be substituted for the Veteran for purposes of processing the claims he had appealed to completion (Issues 2 and 3). See 38 U.S.C. § 5121A (2012). The Board remanded these claims in December 2015. As the requested medical opinion was obtained, additional treatment records were requested, and the appellant was informed as to treatment records that could not be obtained after appropriate request and provided an opportunity to submit the records, the Board finds the directives have been substantially complied with, and the matter again is before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran died in January 2012; the appellant is the Veteran's surviving spouse, who was substituted as the claimant to continue the Veteran's pending service connection claim to completion. 2. The Veteran's death certificate shows that the immediate cause of death was aspiration pneumonia, due to or as a consequence of progressive supranuclear palsy (PSP), with esophageal reflux disease also listed as an underlying cause. 3. The Veteran is presumed to have been exposed to herbicides based on his service in the Republic of Vietnam during the Vietnam Era. 4. The most probative evidence of record does not support a diagnosis of Parkinson's disease. 5. The Veteran's PSP is not a disease which is eligible for presumptive service connection based on herbicide exposure, did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by his active service, to include presumed herbicide exposure. 6. Neither aspiration pneumonia nor esophageal reflux disease began during active service, nor were they caused by active service, to include presumed herbicide exposure. 7. At the time of the Veteran's death, the Veteran had no service connected disabilities. 8. The Veteran's death was not due to or the result of service or due to a disability of service origin. CONCLUSIONS OF LAW 1. The Veteran's surviving spouse is a proper substitute claimant in this case. 38 U.S.C. § 5121A (2012). 2. The criteria for service connection for the diagnosed central nervous system or brain disability, progressive supranuclear palsy (PSP), have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107, 5121A (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service-connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 1310, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.312 (2017). 4. The criteria for an award of special monthly compensation by reason of being housebound have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran, during his lifetime, and the appellant, after his death, contend that his in-service herbicide exposure in Vietnam caused or contributed to his central nervous system disease, which he claimed as Parkinson's disease. It is not argued nor does the record suggest that any such condition manifest until many years after service. The Veteran applied for service connection for this disability in December 2009. He presented treatment records showing diagnosis and treatment dating from 2007 for a condition initially thought to be Parkinson's disease but later diagnosed as progressive supranuclear ophthalmoplegia, also known as Steele-Richardson-Olszewski syndrome. His neurologist explained in July 2008 that, often misdiagnosed as Parkinson's disease, this condition is also progressive and causes many of the same symptoms as Parkinson's. Subsequent medical records indicate that this condition is otherwise known as PSP. In general, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Here, the presumptive provisions set forth at 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.303(b) do not apply because there is no suggestion in the record that the established disability of the central nervous system or brain, PSP, developed until many years following service, outside of any applicable presumptive period. Further, although the Veteran is presumed exposed to herbicide by virtue of his Vietnam service during the Vietnam War, and presumptive service connection is available for certain listed diseases, these include Parkinson's disease but not PSP, esophageal reflux or aspiration pneumonia. See 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii), 3.309 (e). Here, the preponderance of the record establishes that the Veteran did not have Parkinson's disease, but rather a condition variously diagnosed as PSP/ progressive supranuclear ophthalmoplegia/ know as Steele-Richardson-Olszewski syndrome. Dr. O.'s July 2008 letter establishes that this is the diagnosis rather than the initial assessment of Parkinson's disease. This letter is also consistent with the October 2016 opinion of a VA neurologist as well as the death certificate, both of which list PSP but not Parkinson's disease. There is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600 -42608 (2002). Notwithstanding the foregoing, service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). As service connection is thus not warranted based on the aforementioned presumptive theories, the Board must now determine whether the evidence establishes that this disease was otherwise incurred in service. Unfortunately, the Board finds that the preponderance of the evidence is against this conclusion. Here, there is no competent evidence that the diagnosed condition, PSP, is related to service. While the Veteran during his lifetime, and his wife after his death, have asserted the condition is related to herbicide exposure, the October 2016 opinion of the VA neurologist is that there is no relationship between the disease, which began in the 2000's in the Veteran's sixth decade of life, and his time in service. The VA neurologist stated that the cause of PSP is unknown, and there is no association with any toxic exposure. Most cases are sporadic. The symptoms of this 'central nervous system or brain disability' began in 2006 and progressed. While the Board has carefully considered all of the lay statements and testimony, lay witnesses lack the requisite expertise to say that the PSP is caused by herbicide exposure. The question of whether the Veteran's PSP was related to herbicide exposure is a medical question that is not subject to lay observation alone. Hence, the opinions of the Veteran and lay witnesses in this regard are not competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a) (2017). The most probative evidence is provided by the October 2016 VA neurologist, and is against finding that the PSP is related to service, to include herbicide exposure therein. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cause of Death Similarly, the appellant contends that the cause of the Veteran's death is related to active service, specifically herbicide exposure in Vietnam. The Veteran's cause of death was reported as aspiration pneumonia due to PSP and esophageal reflux disease. The appellant contends, and testified before the undersigned, that the Veteran's Parkinson's disease developed into the PSP, which led to death. His representative theorized in August 2017 that the Veteran died while gagging on food, as a direct result of Parkinson's disease. It is not argued nor does the record suggest that any condition that led to death manifested until many years after service. To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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). To be considered a contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; 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 the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312 (c)(1). The above-discussed VA neurologist opinion in October 2016 is also relevant to the claim for cause of death. After reviewing the entire record, the neurologist opined that inasmuch as PSP was a cause of death, listed in the death certificate along with aspiration pneumonia and esophageal reflux disease, the cause of PSP is unknown, and there is no association with any toxic exposure. Again, he noted that most cases are sporadic and the illness begins in the sixth decade of life. Thus, it was unlikely that the Veteran's time in the service had any bearing or connection with developing PSP. It was noted that the Veteran's symptoms began sometime in 2006 and progressed after that. Finally, it was noted that the Veteran's PSP was a form of central nervous system or brain disability diagnosed in the 2000's. The Board finds that the weight of the evidence is against finding a relationship between the listed causes of death and service. First, there is no argument or indication in the record that the Veteran had either esophageal reflux disease or aspiration pneumonia in service. No medical opinion supports such a theory, and clearly appellant does not argue this. Second, as discussed above, PSP was not shown in service or for many years thereafter, and is not otherwise related to service, to include herbicide exposure. Third, to the extent that the appellant argues that the Veteran had Parkinson's disease that developed into PSP that led to death, there is no competent evidence to support for this theory. She is not competent to opine on such a complex medical matter, and in fact the opinion of Dr. O. is against this theory. He explained that the Veteran actually had PSP not Parkinson's disease. The representative's argument that the Veteran died of gagging issues related to Parkinson's disease is predicated on the same essential premise; the Board finds that the Veteran had PSP and not Parkinson's disease. The Board is certainly sympathetic to the appellant's loss and her claim that the cause of the Veteran's death was service-related. Unfortunately, however, as discussed above, as a lay person, she is not shown to have any medical education, training, or experience so as to be competent to render such a medical conclusion, which clearly requires medical expertise. Similarly, the accredited representative's argument is considered less probative on this matter for the same reason. Therefore, in light of the above, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for the cause of the Veteran's death. There is not an approximate balance of evidence. See 38 U.S.C. § 5107 (b). (CONTINUED ON NEXT PAGE) SMC Finally, as to the claim for SMC based on aid and attendance/housebound, the facts are not in dispute and this claim fails as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). SMC is warranted when service connected disabilities impose a specific level of disability as set forth at 38 C.F.R. § 3.350. Here, there are no service-connected disabilities. ORDER Service connection for the cause of the Veteran's death, to include as due to herbicide exposure is denied. Service connection for a disability of the central nervous system or brain, claimed as Parkinson's disease and subsequently diagnosed as PSP, to include as due to herbicide exposure is denied. SMC based on aid and attendance/housebound is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs