Citation Nr: 19141015 Decision Date: 05/28/19 Archive Date: 05/28/19 DOCKET NO. 16-56 858 DATE: May 28, 2019 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s immediate cause of death was chronic obstructive pulmonary disease (COPD). 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD), residuals of a shell fragment wound of the left lumbar area, and residuals of shell fragment wounds of the left hip. 3. The Veteran’s COPD was not proximately caused by or the result of his PTSD. 4. The preponderance of the evidence indicates that the Veteran’s COPD was caused by years of smoking and tobacco use. CONCLUSION OF LAW The criteria for an award of service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1112, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Army from December 1966 to November 1968. His decorations included the Purple Heart Medal, the National Defense Service Medal, the Good Conduct Medal, and the Bronze Star Medal. He died in April 2010. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Pension Center in Milwaukee, Wisconsin. This case was previously before the Board in December 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to service connection for the cause of the Veteran’s death is denied. The Veteran’s death certificate lists his cause of death as COPD. The appellant asserts that her husband’s death was proximately caused by his PTSD. She claims that following treatment for PTSD in January 2001, her husband pulled out into the path of a semi-truck, causing severe injuries to both of them. The Veteran suffered injuries to his cervical spine, several ribs, and his right lung. The appellant asserts that while being treated at the hospital, the Veteran suffered a violent PTSD flashback, resulting in a collapsed lung and treatment with a ventilator. She also asserts that the Veteran’s motor vehicle accident and subsequent treatment caused muscle paralysis, leaving him with only one working lung. She claims that his COPD was a result of the motor vehicle accident; and, therefore, his PTSD proximately caused his death from COPD. In December 2018, the Board considered two medical opinions. An August 2016 opinion by Dr. G.K., a VA examiner, suggested a negative nexus regarding the Veteran’s service-connected injuries and the cause of his death. Dr. G.K. explained that the Veteran’s COPD was mostly due to smoking. He also noted that the Veteran’s shrapnel injuries would not have caused impaired breathing. The medications used to treat his PTSD and other service-connected injuries would not have led to breathing impairment. The Board also considered the opinion of Dr. M.J., a psychologist, who offered statements supporting the appellant’s argument. Dr. M.J. opined that PTSD caused the January 2001 motor vehicle accident, which led to right lung trauma and rib fractures. According to Dr. M.J., the Veteran’s hospital treatment caused further injury to the Veteran, resulting in a collapsed lung and difficulty breathing, requiring him to receive oxygen therapy until his death. The Board found Dr. M.J.’s opinion to be well-reasoned, highly probative positive evidence. The Board noted that the 2016 VA examiner’s opinion did not address the Dr. M.J.’s theories. Therefore, the case was remanded for an addendum opinion to determine whether the Veteran’s cause of death was related to service. In February 2019, Dr. P.H., a VA examiner, prepared an addendum opinion with input from Dr. M.K.E., FCCP, MS—a pulmonologist and professor specializing in critical care medicine and pulmonary disease. After reviewing the Veteran’s e-Folder, VBMS, Legacy Content Manager documents, CPRS, JLV, and Vista Imaging Display medical records, Dr. P.H. opined that it was less likely as not that the identified cause of death (COPD) was causally related to the Veteran’s PTSD. He also opined that it was less likely as not that any identified cause of death or significant contributing condition was aggravated beyond its normal cause due to the Veteran’s PTSD. Dr. P.H. considered Dr. M.J.’s theory that the Veteran’s PTSD proximately caused or contributed to the Veteran’s rib injuries suffered during the January 2001 motor vehicle accident and that those injuries were aggravated by a “thrashing” episode during subsequent treatment in the hospital. He determined, however, that the Veteran more likely as not gradually developed end-stage, oxygen-dependent COPD leading to his death, specifically as a result of his lengthy and extensive smoking history (up to 40-60 packs/year). Dr. P.H. explained that there was little evidence of significant long-term pulmonary residuals from the Veteran’s 2001 motor vehicle accident injuries and complications. He concluded that the facts of the case did not support the contention that the Veteran’s PTSD caused or contributed to the Veteran’s rib injuries suffered in the January 2001 motor vehicle accident or that those injuries were permanently aggravated during his subsequent hospital treatment. Finally, Dr. P.H. noted that his conclusion was reviewed and discussed in detail with Dr. M.K.E. As stated above, Dr. M.K.E. is a professor of pulmonary medicine at a nationally recognized medical school. She is a physician in the VA system and affiliated with a private hospital. She is an expert in asthma, COPD, interstitial lung disease, occupational lung disease, hypoxemia, lung nodules, and bronchiectasis. Dr. M.K.E. concurred with the opinion of Dr. P.H., concluding that the Veteran’s death due to COPD was more likely as not caused by his lengthy smoking history. Dr. M.K.E. also opined that the Veteran’s PTSD and traumatic rib injuries with pneumothorax were separate conditions, unrelated to his eventual death from end-stage, oxygen-dependent chronic COPD. The Board, in its December 2018 remand found the theories asserted by Dr. M.J. to be well-reasoned and highly probative. The Board finds the opinion of Dr. P.H. to be even more probative and well-reasoned than the opinion of Dr. M.J. The Board affords significant weight to Dr. P.H.’s opinion because it includes a thorough review of the Veteran’s treatment records and it includes a detailed, articulate analysis supported by medical rationale. His opinion has a clear conclusion, supporting data, and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, Dr. P.H.’s opinion was reached with the support of a pulmonary expert. Dr. M.J.’s opinion does not address the Veteran’s history of smoking as it is reflected in VA medical records. For instance, she states that the Veteran used Nicorette patches after his 2001 motor vehicle accident. She notes that according to the Veteran’s wife, he never smoked again. This version of events does not align with reports from the Veteran’s treatment. For instance, during a February 2003 examination, the Veteran claimed to have quit smoking “a few months” prior. Then, during an August 2003 examination, the Veteran denied smoking for at least three years prior. Finally, however, during a 2004 examination, the Veteran claimed to have quit smoking in April 2004. This series of inconsistent statements undermines the credibility of the appellant and her husband regarding historical accounts of the Veteran’s cigarette and tobacco consumption. To the extent that Dr. M.J.’s opinion relies on such inconsistent statements, the probative value of her reasoning is diminished. Furthermore, Dr. M.J. is a psychologist, not an expert in pulmonary medicine. Unlike the opinion provided by Dr. P.H., there is no indication that the theories and opinions of Dr. M.J. have been endorsed by an expert in pulmonary medicine. The Board acknowledges the arguments of the appellant—including her theories that her husband’s death was proximately caused by Agent Orange exposure, residuals of shrapnel exposure, an allergic response to hydrocodone, or a PTSD-induced car accident. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to…”. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question of the Veteran’s cause of death from COPD to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board accords the appellant’s statements regarding the Veteran’s cause of death little probative value as she is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. There is no suggestion that the appellant has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the appellant are nonprobative. Based on the foregoing, the Board finds that service connection is not warranted for the Veteran’s cause of death. The preponderance of the evidence does not support the finding of a relationship between the Veteran’s COPD and any of his service-connected disabilities. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the appellant’s claim; therefore, that doctrine is not applicable in the instant case. Her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.