Citation Nr: 20007602 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-20 763 DATE: January 30, 2020 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDING OF FACT 1. The Veteran died in August 2014, from pericardial tamponade due to aortic dissection and fusiform aortic aneurysm. 2. During his lifetime, service connection was in effect for degenerative joint disease, lumbar spine; limitation of motion, left shoulder; limitation of motion, right shoulder; tinnitus; osteoarthritis, left knee; osteoarthritis, right knee; varicose veins, right leg; varicose veins, left leg; bilateral hearing loss; perforation right tympanic membrane; sebaceous cyst excisions; arthralgia multiple joints; arthralgia, right elbow; and arthralgia, left elbow. 3. The cause of the Veteran's death has not been shown by competent evidence to be related to his service or to any event of service, including a service-connected disability. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service, including from November 1961 to January 1972, with confirmed service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This issue was previously before the Board in May 2019 at which time it was remanded for further development. VA subsequently obtained two medical opinions in August 2019 to address the etiology of the Veteran's pericardial tamponade due to aortic dissection and fusiform aortic aneurysm (cause of death). The appeal has been returned to the Board for further appellate consideration. The Board finds there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The Board notes that the appellant has not explicitly stated that she is not seeking a secondary service connection for the Veteran's cause of death. However, she has not presented any lay contentions in support of such an etiology theory, nor is there medical evidence suggesting a secondary link for the Veteran’s cause of death with service. The Board accordingly need not further address secondary service connection and will instead focus on the direct service connection theory. But see 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. The Veteran died in August 2014, from pericardial tamponade due to aortic dissection and fusiform aortic aneurysm. At the time of his death, the Veteran was service connected for degenerative joint disease, lumbar spine (rated at 20 percent); limitation of motion, left shoulder (rated at 20 percent); limitation of motion, right shoulder (rated at 20 percent); tinnitus (rated at 10 percent); osteoarthritis, left knee (rated at 10 percent); osteoarthritis, right knee (rated at10 percent); varicose veins, right leg (rated at 10 percent); varicose veins, left leg (rated at 10 percent); bilateral hearing loss (rated noncompensable); perforation right tympanic membrane (rated noncompensable); sebaceous cyst excisions (rated noncompensable); arthralgia, multiple joints (rated noncompensable); arthralgia, right elbow (rated noncompensable); and arthralgia, left elbow (rated noncompensable). A Veteran’s death will be considered to result from a service-connected disability when the evidence establishes that a disability that is causally related to service either caused or contributed to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's 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, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, if a veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). The appellant asserts in her March 2018 VA Form 9 formal appeal to the Board and again in November 2019 correspondence to VA that the Veteran's pericardial tamponade due to aortic dissection and fusiform aortic aneurysm resulted from the Veteran’s exposure to herbicide agents, including Agent Orange, during active service. Exposure to herbicide agents during active service was conceded in this matter. See June 2019 deferred rating decision. If a veteran was exposed to an herbicide agent during active service, certain disease shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. Those presumed service-connected diseases include ischemic heart disease. 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Health Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540 (June 8, 2010). The Board notes that pericardial tamponade, aortic dissection, and fusiform aortic aneurysm are not among the diseases for which service connection is warranted on a presumptive basis due to in-service herbicide exposure. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, the Board notes that the appellant could still establish direct service connection for these conditions with competent evidence that they were incurred in service, were present during other presumptive periods, or by submitting medical or scientific evidence that they were in fact due to herbicide agent exposure or other disease during service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board notes an August 2019 medical opinion, wherein the examiner opined that the Veteran's pericardial tamponade due to aortic dissection and fusiform aortic aneurysm was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that a review of the Veteran’s medical record shows the Veteran died due to an aortic dissection with cardiac tamponade. The examiner explained that a cardiac tamponade, also known as pericardial tamponade, occurs when fluid in the pericardium builds up, resulting in compression of the heart. The examiner noted that onset may be rapid or gradual. The examiner further explained that aortic dissection is a vascular condition and is not considered CAD/IHD (coronary artery disease/ischemic heart disease). A review of the Veteran’s service treatment records (STRs) shows no evidence of a cardiac (or vascular) condition during active duty. The examiner concluded by noting that vascular conditions are not associated with herbicide exposure. The Board notes a second August 2019 medical opinion addressing service connection for the Veteran’s cause of death. The examiner opined that the Veteran's death from pericardial tamponade due to aortic dissection and fusiform aortic aneurysm was less likely than not (less than 50%) caused or aggravated (worsened beyond natural progression) by any service-connected disabilities (as listed in a June 2011 rating code sheet) or presumed herbicide exposure. As a rationale for this opinion, the examiner noted that after reviewing the Veteran’s claims file, there is medical evidence the Veteran was diagnosed and treated for pericardial tamponade due to aortic dissection and fusiform aortic aneurysm. The examiner specifically noted that none of the Veteran’s service-connected disabilities, listed above, have any known anatomic or physiologic pathways to cause or aggravate pericardial tamponade due to aortic dissection and fusiform aortic aneurysm. Citing medical literature, the examiner then noted that potential risk factors for the Veteran's aortic and heart conditions are HTN (hypertension), history of tobacco use, age, and male gender. The examiner also noted that medical literature notes herbicide exposure is not a known risk factor or cause of the Veteran's cardiac or aorta conditions. The Board observes that there are no additional etiology opinions related to the Veteran's pericardial tamponade due to aortic dissection and fusiform aortic aneurysm. While the appellant believes that the Veteran's primary and contributory cause of death are related to service, as a lay person, she has not shown that she has the specialized training or credentials sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of pericardial tamponade due to aortic dissection and fusiform aortic aneurysm (cause of death) are matters not capable of lay observation and require medical expertise to determine. Accordingly, her opinion as to the diagnosis or etiology of the Veteran's cause of death is not competent evidence. The Board is sympathetic to the appellant’s arguments in this case; however, the medical evidence does not suggest that any such disorders were related to any incident of service. Furthermore, there is no competent evidence of record showing that the disorders that resulted in the Veteran's death were incurred in service or were proximately due to or the result of any disease or injury incurred in service. The preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.