Citation Nr: 20004199 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 14-01 723 DATE: January 16, 2020 ORDER Entitlement to service connection for cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran passed away in June 2012. The immediate cause of death was sepsis and the contributory causes of death were bronchopneumonia, hypertensive heart disease, and aortic aneurysm. 2. At the time of his death, the Veteran was service connected for prostate adenocarcinoma, status post radical prostatectomy, depressive disorder, and impotence. 3. The preponderance of the credible and probative evidence of record does not demonstrate that a service-connected disability was the immediate or underlying cause of the Veteran’s death, nor was a service-connected disability etiologically related to the cause of the Veteran’s death. 4. The preponderance of the credible and probative evidence of record is against finding that the Veteran’s death was caused by a disability incurred in or aggravated by service or is etiologically related to any incident or disease during the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for cause of the Veteran’s death are not met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967. He passed away in June 2012. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board remanded this case in September 2015 and April 2019 for further development. In its September 2015 and April 2019 decisions, the Board directed the RO to adjudicate the claim for entitlement to death and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1151, claimed as due to VA treatment, in a rating decision. In December 2019, the RO adjudicated the issue in a rating decision. As the appellant has yet to submit a notice of disagreement to this rating decision, the Board will only adjudicate the issue of entitlement to service connection for cause of the Veteran’s death. The issue of entitlement to DIC under 38 U.S.C. § 1151 will be adjudicated by the Board if it has been properly appealed. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). The appellant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for the cause of the Veteran’s death is denied. The appellant contends that the Veteran’s service-connected disabilities caused his death. The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312 (a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause of death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312 (c). In determining whether a service-connected disability contributed to death, it must be shown that it 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 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)(1). 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 order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). In determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C. § 1310. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). According to the death certificate, the Veteran passed away in June 2012. The immediate cause of death was sepsis and the contributory causes of death were bronchopneumonia, hypertensive heart disease, and aortic aneurysm. At the time of his passing, the Veteran was service connected for prostate adenocarcinoma, status post radical prostatectomy, depressive disorder, and impotence. Service treatment records do not show a complaint of, treatment for, or a diagnosis of sepsis, bronchopneumonia, hypertensive heart disease, and aortic aneurysm. According to VA treatment records from March 2002 to May 2012, the Veteran had prostate cancer and underwent a radical prostatectomy in March 2002. He became incontinent following the prostatectomy. In April 2008, the Veteran was hospitalized for an acute stroke and hemiplegia. In a March 2009 treatment record, it was noted that his prostate was normal without complications. In May 2012, the Veteran was hospitalized until his passing in June 2012. In May 2012, he was diagnosed with acute right leg ischemia, status post right leg embolectomy, seizures, and asymptomatic brachycardia. He underwent a right leg embolectomy, which was complicated by surgical site wound infection, sepsis, renal failure, deep vein thrombosis of the right lower extremity, demarcated ischemic changes of the lower extremities, heparin-induced thrombocytopenia, attempted argatroban, and auto anticoagulated. In a July 2005 VA examination for genitourinary conditions, the examiner noted that the Veteran had carcinoma of the prostate since 2002 and underwent a radical prostatectomy in March 2002. He was diagnosed with urinary incontinence and erectile dysfunction due to his prostate carcinoma, status post radical prostatectomy. In a July 2005 VA examination for mental disorders, the Veteran was diagnosed with depressive disorder that was caused or the result of his service-connected prostate adenocarcinoma. He reported feeling sad, depression, irritability, loss of interest for daily living activities, loss of energy, insomnia, inability to feel pleasure in daily task, inability to concentrate, loss of interest in sex, feelings of worthlessness, anxiety, and tension. In an October 2008 VA examination for Aid and Attendance and Housebound status, it was found that the Veteran used to be independent in all daily living activities until April 2008, when he suffered a stroke. In the December 2012 notice of disagreement, the appellant contended that the Veteran’s service-connected disabilities substantially caused his death. She stated that the Veteran was severely ill and weak due to chemotherapy and radiation treatments and that was how he died because of his service-connected disabilities. She also claimed that he had a heart condition, cerebrovascular accident, hypertension, and a kidney problem due to his in-service exposure to Agent Orange. In a February 2017 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s sepsis, bronchopneumonia, hypertensive heart disease, and abdominal aortic aneurysm had their onset during, or were otherwise related to, his military service, to include any presumed Agent Orange exposure. The examiner found that service treatment records did not show diagnosis, signs, or symptoms related to sepsis, bronchopneumonia, hypertensive heart disease, or abdominal aortic aneurysm during active service. Further, the examiner noted that medical literature did not show that sepsis, bronchopneumonia, hypertensive heart disease, or abdominal aortic aneurysm was caused by Agent Orange exposure. It was also noted that these conditions were also incurred many years after separation of service, which weighed against an etiological nexus between them. The examiner opined that it was less likely than not that the Veteran’s service-connected prostate cancer, status post radical prostatectomy with associated impotence, and depressive disorder either singly or in combination, caused or contributed, substantially and materially, to the cause of his death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death. It was noted that the Veteran died of sepsis, bronchopneumonia, hypertensive heart disease, and abdominal aortic aneurysm. Upon review of claims file and medical literature, the examiner found that the Veteran’s service-connected disabilities did not have any part in the Veteran’s death. Medical literature did not show that depression and prostate cancer status post radical prostatectomy with residual impotence caused or contributed to the development of hypertensive heart disease or abdominal aortic aneurysm or caused sepsis or bronchopneumonia 15 years after the radical prostatectomy. Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for cause of the Veteran’s death is warranted. As an initial matter, the evidence does not show that Veteran had a diagnosis of, treatment for, or complaint of sepsis, bronchopneumonia, hypertensive heart disease, and aortic aneurysm in service. Additionally, while the appellant contends that the Veteran’s heart condition was due to his in-service exposure to Agent Orange, presumptive service connection is not available under 38 C.F.R. § 3.309(e) for hypertensive heart disease and aortic aneurysm as they are not included on the list of conditions afforded presumption. Accordingly, the Board finds that service connection for the Veteran’s cause of death due to hypertensive heart disease and/or aortic aneurysm cannot be granted under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309. Despite this, service connection for cause of the Veteran’s death due to hypertensive heart disease and/or aortic aneurysm may still be established on the basis of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence does not show that the Veteran’s sepsis, bronchopneumonia, hypertensive heart disease, and aortic aneurysm were caused by his active service, to include his exposure to herbicides. That is, there is no evidence that these conditions occurred in service or were due to any other service-related incident. His service treatment records do not show complaints, treatment, or diagnosis for of sepsis, bronchopneumonia, hypertensive heart disease, and aortic aneurysm. The Veteran was not assessed with any of these conditions until June 2012, approximately 45 years after separation from active service. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Further, none of the Veteran’s medical providers or other evidence of record indicate that the Veteran’s military service, to include exposure to herbicides, caused of sepsis, bronchopneumonia, hypertensive heart disease, and aortic aneurysm. Thus, the evidence of record does not support a finding that the Veteran’s cause of death was due to his military service. Additionally, the evidence of record does not show that the Veteran’s cause of death was due to his service-connected disabilities. The Board finds that the February 2017 VA medical opinion is probative evidence as to the issue of whether the Veteran’s service-connected disabilities were a principal or contributor cause of death or otherwise etiologically related to his death. The opinion was based on a thorough review of the Veteran’s medical records, consideration of medical literature, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds that the persuasive evidence of record shows that the Veteran’s cause of death was not due to his service-connected disabilities. Significantly, the appellant has not presented or identified any contrary medical opinion that supports the claim for service connection for cause of the Veteran’s death. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board notes that lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of the cause of the Veteran’s death, the issue of causation of such medical disabilities is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Board recognizes the appellant’s lay assertions that the Veteran’s service-connected disabilities caused or contributed to his death, to include being severely ill and weak due to chemotherapy and radiation treatment, but finds that the appellant is not competent to provide such a medically complex etiological opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the appellant’s lay assertions are not competent to provide a medical link between the Veteran’s cause of death and his service-connected disabilities. Thus, although the Board has carefully considered the lay contentions of record, it has not uncovered any credible evidence which supports a connection between the Veteran’s cause of death and his service-connected disabilities and the appellant lacks the medical expertise to competently determine the etiology of the Veteran’s cause of death. In summary, the preponderance of the evidence weighs against finding that the Veteran’s death was due to his military service or service-connected disabilities. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.