Citation Nr: 20006934 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-18 980 DATE: January 28, 2020 ORDER Entitlement to service connection for cause of death is denied. FINDING OF FACT The Veteran’s cause of death is not related to his service or to a service-connected disorder. 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; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to October 1988, including service in the Republic of Vietnam. The Veteran passed away in August 2009 and the Appellant is his surviving spouse. In September 2017, a video hearing was held before the undersigned. A transcript of that Board hearing is of record. In December 2017, the Board remanded the Veteran’s claim to obtain a medical opinion regarding the cause of the Veteran’s death. 1. Entitlement to service connection for cause of death The Appellant contends that the Veteran’s death was due to his exposure to herbicides. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse, child, or parents of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the veteran’s death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A disability is the principal cause of death if it was the immediate or underlying cause of death, or was etiologically related to the death. 38 C.F.R. § 3.312(b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312(c). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay 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 the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As to herbicide exposure, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam war veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The diseases presumed to be associated with herbicide exposure include: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). The Appellant argues that the Veteran’s cardiac arrhythmia is the result of exposure to Agent Orange during service. Specifically, that the Veteran was exposed to Agent Orange when his boat, the U.S.S. Knox, traveled on the inland waterways of Da Nang Harbor. In this case, the Board notes that the Veteran died in August 2009. His death certificate lists cardiac arrhythmia as the cause of death and an August 2009 autopsy report lists his cause of death as cardiac arrhythmia due to severe hypertrophic cardiomyopathy associated with myofibrosis. Turning to the medical evidence at hand, the Board notes that the Veteran’s service treatment records are silent for any treatment or a diagnosis of a cardiac arrhythmia due to severe hypertrophic cardiomyopathy associated with myofibrosis. With regard to the Veteran’s post-service medical history, the Board notes that the Veteran’s post-service medical records are silent for treatment or a diagnosis for a heart condition associated with exposure to herbicides. In fact, the Board notes that the Veteran’s autopsy report included a cardiovascular examination which concluded that “there is no evidence of recent ischemic change.” In addition, the Board notes that the autopsy report showed that “infarction or hemorrhage is not seen.” In October 2018, VA obtained a medical opinion regarding the cause of the Veteran’s death. The examiner found that the Veteran’s cause of his death is less likely than not either due to Vietnam military service Agent Orange exposure or otherwise incurred in or caused by military service. The examiner stated that “I have based my medical opinion on review of the Veteran’s claims file, VBMS, appeals documentation (including but not limited to BVA Remand, Hearing Transcript, autopsy report, and death certificate) and CPRS.” The examiner then stated that “[w]hile the Veteran’s autopsy demonstrated diffuse multivessel coronary artery calcification, absent evidence of acute myocardial infarction or other ischemic change, not only is this finding by itself clinically insignificant, but that the Veteran instead was found to have hypertrophic cardiomyopathy for which VBMS service treatment records are silent and which, as known in the medical literature, is otherwise completely unrelated to Agent Orange exposure, may be completely asymptomatic for years, and, as the result of acute hemodynamic collapse or sustained ventricular dysrhythmia, may cause sudden cardiac death, as noted on the Veteran's death certificate thereby nonetheless fails to substantiate this claim as contended.” The Board has placed significant probative value on this opinion because the examiner provided a thorough and well-reasoned opinion based on a review of the record. The Board acknowledges that the March 2014 statement of the case states that “calorific coronary heart disease [is] listed as a significant condition contributing to death” and that “[c]ardiomyopathy with coronary heart disease is a form of ischemic heart disease considered to be a presumptive condition linked to herbicide exposure.” However, there is no rationale supporting this statement, and cardiomyopathy is not listed in any of the statutes or regulations cited in the body of the document. Additionally, there is no indication that this statement was made by a medical professional. The Board will therefore ascribe greater probative value to the October 2018 VA medical opinion than the unsupported statement in the March 2014 statement of the case. In sum, the Board finds that entitlement to service connection for the Veteran’s cause of death is not warranted. After a review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran had a diagnosis of ischemic heart disease, a diagnosis of a myocardial infarction, or that the condition that caused the Veteran’s death was due to his military service or exposure to Agent Orange. Specifically, the Board notes that the Veteran’s service treatment records were silent for any treatment or a diagnosis of the conditions that caused the Veteran’s death. In addition, the Board notes that the Veteran’s post-service medical records indicate a diagnosis of hypertension; however, the Veteran’s records are silent for a diagnosis of ischemic heart disease or myocardial infarction. Moreover, the Board notes that the Veteran’s autopsy report indicated that there was no evidence of recent ischemic change or an infarction. Furthermore, the Board notes that the October 2018 VA medical opinion found that the Veteran’s cardiac arrhythmia was not related to Agent Orange exposure, and the underlying cardiomyopathy was not related to Agent Orange exposure either. In fact, the Board notes that the October 2018 VA examiner described the diffuse calcification noted on the Veteran’s autopsy report as “clinically insignificant.” The Board finds the October 2018 examiner’s classification essentially concludes that the Veteran’s diffuse calcification is not by itself sufficient evidence to conclude that the Veteran had a diagnosis of coronary artery disease or ischemic heart disease. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to service connection for the Veteran’s death, must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.