Citation Nr: 19129294 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 11-18 387 DATE: April 16, 2019 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1.The Veteran died in December 2008; the cause of death was listed as acute myocardial infection, congestive heart failure, urinary tract infection, dysphagia and aspiration pneumonia. 2. At the time of his death, the Veteran was service-connected for bilateral hearing loss and contusion of sacro spinalis muscle. 3. The Veteran’s service-connected disabilities did not cause or substantially or materially contribute to his death. 4. The preponderance of evidence does not show that the inservice heart irregularity contributed substantially or materially to the Veteran’s cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1154, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1942 to January 1946. The Veteran died in December 2008 and the appellant is the Veteran’s surviving spouse. This matter is on appeal on appeal from a June 2009 rating decision for service connection for cause of death. The appellant was afforded a June 2015 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims file. The Board remanded this appeal in October 2015 for additional development and examination. 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. See 38 U.S.C. § 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in, or aggravated by, active service was the principal or contributory cause of death. See 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (a). In order to constitute the contributory cause of death, it must be shown that the service connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1). To establish service connection for the cause of the veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C. § 1310 ; 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c)(1). Therefore, service connection for the cause of a veteran’s death may be demonstrated by showing that the veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally. 38 U.S.C. § 1310. Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, the VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469. To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The appellant contends that the Veteran’s in-service recording of a heart irregularity was the eventual cause or aggravated conditions leading to the primary or contributory cause of the Veteran’s death. In a November 2012 hearing with a decision review officer (DRO), the appellant states that the Veteran had suffered from a heart condition his whole life; and this heart condition was discovered in-service during an examination of the Veteran being treated for a fall. At the June 2015 hearing, the appellant testifies that since her marriage to the Veteran in 1972, the Veteran had been hospitalized several times for shortness of breath and heart problems, and shortly after filing her initial claim, found the Veteran had a heart problem. Therefore, the appellant asserts that the heart condition noted in the Veteran’s service treatment records was the eventual cause of the Veteran’s death. At the time of his death in December 2008, the Veteran was service-connected only for bilateral hearing loss and contusion of the sacro-spinalis muscle. The Veteran’s death certificate listed his immediate causes of death as acute myocardial infarction and congestive heart failure. Other significant conditions contributing to his death included urinary tract infection, dysphagia, and aspiration pneumonia. The Veteran was not service-connected for any of the fatal heart diseases listed on the death certificate (i.e. acute myocardial infection and congestive heart failure) The Veteran’s February 1942 entrance examination evaluated his cardiac system as normal. In an October 1944 the Veteran was treated for injuries suffered from a fall while unloading a box car. The record noted: “Heart sounds are peculiar in that there appears to be a reduplication of the first sound in the mitral region. This cardiac irregularity has been investigated during his last admission and has been followed by the medical department.” The Veteran’s service treatment records do not contain any further complaints, treatment, or diagnosis of a heart condition. The Veteran’s January 1946 separation examination evaluated his cardiac condition as normal. A May 1948 examination for weight loss found negative findings for cardiac or pulmonary pathology. A February 1980 hospital treatment record for uncontrolled diabetes mellitus and mild depression noted no murmurs or extra sounds upon physical examination of the heart. In an August 1982 application for Social Security disability benefits, the Veteran reported that apart from his hospitalization in 1980, the only previous hospitalization was in 1963 for an industrial accident resulting in loss of fingers from his right hand. The Veteran in this application denied other significant illnesses, operations or traumatic experiences. At an October 2000 medical treatment report for leg pain, the physician observed the Veteran with irregulate heart rate and rhythm. The physician gave an impression of distal peripheral vascular disease. A May 2004 yearly physical observed the heart was in “regular sinus rhythm without murmurs, thrills, gallops, rubs or other abnormalities.” A January 2007 medical visit for a new doctor observer normal heart sounds with no added sounds or murmurs. A June 2007 hospital report gave a discharge diagnosis of tachycardia where it was noted the Veteran’s heart rate was irregular with a lowered blood pressure. However, a followup report a week later found the Veteran’s cardiovascular system to have regular rate and rhythm. The Veteran was afforded a VA examination in March 2011. The VA examiner opined the cause of death was at least as likely as not due to any service related heart condition. The examiner noted the lack of any diagnosis for heart condition or observation of heart abnormalities post-separation from service. The Board remanded this appeal in October 2015 to obtain a clarification of VA medical opinion on whether the in-service heart irregularity caused or aggravated the fatal heart disease causing the Veteran’s death. In a May 2016 VA medical opinion, the examiner opined that it was less likely that the Veteran’s in-service heart irregularity caused his death or substantially or materially contributed to his death. The examiner reviewed the Veteran’s claims record and noted the examinations the Veteran received since his separation from service and found there was no heart diagnoses or symptoms until the October 2000 observation of irregular heart rate. The examiner noted at the time of the October 2000 observation the Veteran was 77 years old and 54 years had passed since his separation from the military; the examiner opined the noted irregular heart rate was more of a consequence of aging and not from the 1944 finding of heart irregularity. The May 2016 VA examiner opined the documented Veteran’s listed cause of death of acute myocardial infarction and congestive heart failure occurred 72 hours prior to his death and were acute in nature. The examiner notes that one year prior to the Veteran’s death, there was no documentation of congestive heart failure or myocardial infarction. Combined with other acute infections including urinary tract infection and aspiration pneumonia, the examiner found these infections significant factors preventing the Veteran’s recovery and likely increased the risk of myocardial infarction and congestive heart failure leading to his death. The examiner concluded that apart from the 1944 statement for heart irregularity, there was no documentation of a heart condition or abnormalities until October 2000. Therefore, the examined opined the 1944 finding was incidental with no clinical implications or significance. The examiner determined that it was less likely than not that the acute myocardial infarction and congestive heart failure were caused by the in-service heart irregularity. As the May 2016 VA examiner provided a detailed review and examination of the Veteran’s claims file, made repeated references to pertinent past records and statements consistent with the evidence of record, the Board finds that the VA examination report and medical records documenting the nature and extent of his heart condition, to be the most probative evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the appellant’s assertions that the Veteran’s heart conditions were related to his military service. The appellant asserted at the June 2015 hearing that the first indication of potential heart symptoms was around 5 to 6 months after her marriage to the Veteran in August 1972 where she observed the Veteran would “sit and close his eyes … [and then] suddenly not breathing for a couple seconds.” The appellant states the first medical treatment related to heart problems was in November 1974 where she was notified the Veteran had been taken to the hospital when his heart “gave out”. The appellant also states that there had been no prior similar episodes or heart problems before he was taken to the hospital in November 1974, and a similar episode occurred a year later. A review of the Veteran’s medical history documented over many years does not support this assertion. Furthermore, even assuming a hospitalization for a heart condition did occur in 1974, that would be several decades from separation from service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the etiology of heart conditions, falls outside the realm of common knowledge of a lay person because it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, an opinion regarding the nature and etiology of the Veteran’s disabilities requires medical expertise that the appellant has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Thus, the appellant’s lay statements as to the relationship between the Veteran’s heart conditions and his military service are given no probative weight. Based on the above, the Board finds that the most competent and credible evidence of record is against a finding of service connection for the cause of the Veteran’s death. The most probative evidence shows that the Veteran was not diagnosed or treated for a heart condition during service. The separation examination reported a normal condition. Several examinations following separation do not find any heart condition; the Veteran had asserted in 1982 in his application for Social Security disability that he had only one hospitalization in 1980, and it was not for a heart condition. The earliest documentation of the Veteran’s heart condition was in October 2000. The May 2016 VA examiner provided reasoned analysis of the case to support their opinion that the Veteran’s cause of death was not related to the inservice documentation of a heart irregularity. The Board thus finds that the weight of the competent and probative evidence is against a finding of service connection for the cause of the Veteran’s death. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against   the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Yang, Law Clerk