Citation Nr: 20007604 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 10-47 368 DATE: January 29, 2020 ORDER 1. Entitlement to service connection for ischemic heart disease (IHD) for the purpose of accrued benefits is denied. 2. Entitlement to dependency and indemnity compensation (DIC)/service connection for the cause of the Veteran’s, death, to include under 38 U.S.C. § 1151, is denied. FINDINGS OF FACT 1. The Veteran died in March 2007; his death certificate lists the cause of death as that the immediate cause of death was renal failure of 2 days duration, with secondary causes listed as sepsis of 5 days duration and heart failure of “years” duration; no other significant condition is listed as contributing to death but not resulting in the underlying cause. 2. The Veteran’s service-connected disabilities included major depression with short term memory loss and pruritis ani. 3. The Veteran did not serve in Vietnam and is not shown to have been exposed to Agent Orange/herbicide agents in service. 4. IHD was not manifested in service or in the first year following the Veteran’s discharge from active duty, and the preponderance of the evidence is against a finding that it was etiologically related to his service. 5. The Veteran did not die due to a service-connected disability, and a service- connected disability is not shown to have contributed to cause his death. 6. The Veteran’s February and March 2007 VA treatment is not shown to have caused or contributed to cause his death. CONCLUSIONS OF LAW 1. Service connection for the Veteran’s IHD is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. 3. The criteria for establishing entitlement to DIC benefits under 38 U.S.C. § 1151 as due to VA treatment in February and March 2007 are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a Veteran who served on active duty from March 1970 to July 1978 and from March 1981 to November 1992 and died in March 2007. These matters are before the Board on appeal from July 2007 and November 2011 rating decisions. In June 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In August 2016 and May 2018, the matters were remanded for additional development. 1. Entitlement to service connection for IHD for the purpose of accrued benefits is denied. 2. Entitlement to DIC based either on the cause of the Veteran’s death being service-connected, or under 38 U.S.C. § 1151, is denied. The Veteran died in March 2007. His death certificate shows that the immediate cause of his death was renal failure of 2 days duration, with secondary causes listed as sepsis of 5 days duration and heart failure of “years” duration. The appellant’s claims are premised, in part, on assertions made by the Veteran during his lifetime that he served in Vietnam or was otherwise exposed to Agent Orange in service. If such exposure is confirmed, entitlement to the benefits sought may be warranted on a presumptive basis. During his lifetime, the Veteran presented a number of theories regarding the manner of his claimed exposure to Agent Orange. See, e.g., July 2002 statement (landed briefly in Vietnam in 1973 en route to another destination serving with VP-8); August 2003 statement (flew to Vietnam from Okinawa and Thailand to repair C-130s and helicopters in 1972 and 1973 while assigned to VP-40); October 2003 statement (hospitalized during service for psychiatric disability related to service in Vietnam); November 2003 VA examination report (was off the coast of Vietnam in 1971 when his ship was sunk by a rocket that landed between his legs, leaving him floating in the water for three days and in a coma for more than a month); October 2004 letter to the President (served in Thailand with temporary duty in Vietnam with “black ops” service); and November 2005 VA treatment record (had combat service in Vietnam). At the June 2016 Board hearing, the appellant testified that Patrol Squadron 40, to which the Veteran was assigned in May 1972, was deployed in August 1972 to Japan with a detachment to U-TAPAO Air Base in Thailand. She expressed belief that the Veteran went with ta detachment to U-TAPAO Air Base due to his training as an aviation electronics technician and that he would have been on the flight line and thereby exposed to herbicide agents. She testified that he had told her he was involved in black ops activities. Veterans who served in certain units on the Korean DMZ between April 1968 and August 1971 are presumed to have been exposed to herbicide agents during such service. However, there is no evidence that the Veteran served in one of the designated units in Korea for which VA has conceded exposure to herbicide agents in service occurred. The Veteran’s DD 214 for the pertinent period of service indicates that he was an Aviation Electronics Technician, and was awarded a Vietnam Service Medal and a Republic of Vietnam Campaign Medal (neither of which establishes he was physically in Vietnam). A November 1972 service treatment record (STR) indicates that he received medical treatment at U-TAPAO Air Base in Thailand; and a history of the Veteran’s unit (submitted by the appellant) indicates that portions of the unit were deployed to Okinawa and Thailand and that the unit participated in patrols off the coast of Vietnam. The Veteran’s service personnel records show that he was stationed in San Diego, California from March 1970 to May 1970; in Memphis, Tennessee from June 1970 to July 1971; and at Moffett Field, California with Patrol Squadron 31 from July 1971 to December 1971, and with Patrol Squadron 40 from January 1972 to April 1974. During his lifetime he Veteran provided conflicting accounts of his assignments in service (see, e.g. August 2004 VA treatment record (denying combat or Vietnam service experience; see also April 2006 rating decision (regarding competency)). An October 2003 PIES response to a request for information, indicates it could not be determined whether the Veteran had in-country service in the Republic of Vietnam. A copy of the separation document showing he was awarded the Vietnam Service Medal was furnished, and it was noted that no other documents on file showed Vietnam service. A June 2011 memorandum of Formal Findings indicates that the evidence of record does not show that the Veteran served on a ship in the waters of Vietnam; and that the records do not show he served as a Naval aviator during the Vietnam Era or that he was deployed to Vietnam or had a temporary visitation to Vietnam. The memorandum concluded that service in the Republic of Vietnam and exposure to herbicides is not established. In a February 2018 addendum to the June 2011 Formal Findings, it is noted that the Veteran served in the Air Force during the Vietnam Era from March 1970 to July 1978. The AOJ cited the efforts made to obtain the information necessary to verify Agent Orange or herbicide exposure. The AOJ noted that there was an extensive review of the Veteran’s claims folder to include DD 214s, personnel records, STRs, and DPRIS JSRRC Agent Orange requests, and noted that all records and correspondences are negative for claimed exposure to Agent Orange/herbicide agents. The AOJ determined that Agent Orange/herbicide agent exposure could not be corroborated or conceded. Based on the foregoing, the Board finds that the Veteran is not shown to have served in the Korean DMZ, or to have been exposed to herbicide agents during his service. As he is not shown to have been exposed to Agent Orange during service, the presumptive provisions of 38 U.S.C. § 1116 do not apply. The appellant alternately contends that the Veteran had high blood pressure in service and subsequently developed hypertension that led to his fatal heart disease. At the time of his death, the Veteran’s service-connected disabilities included major depression with short term memory loss, rated 100 percent, and pruritis ani, rated 0 percent. The Veteran’s STRs show treatment for electrical shock in November 1974 and in November 1985; on follow-up treatment in November 1985, his heart was normal in rhythm and rate and there were no murmurs. The STRs show numerous elevated blood pressure readings, but hypertension was not diagnosed in service. On August 1969 pre-induction exam, the blood pressure reading was 130/80. On March 1972 service re-enlistment exam, blood pressure was 122/74. On June 1978 service exam, blood pressure readings were 136/96, 140/90, 138/98, 128/94, and 114/84. On February 1981 service enlistment examination, the heart was normal on clinical evaluation and blood pressure was 120/88. In July 1981, blood pressure was 102/70. In June 1982, blood pressure was 130/80. In May 1984, blood pressure was 120/80. In December 1984, blood pressure was 118/80. In September 1985, the Veteran was seen for severe headaches; his blood pressure on arrival was 128/102; he reported a history of hypertension of 170/140 controlled with medication in 1978 but on no current medication. In November 1985, his blood pressure was 132/98. In September 1986, blood pressure was 110/80. In June 1987, blood pressure was 120/80. On September 1987 service re-enlistment exam, blood pressure was 122/88. In January 1989, blood pressure was 130/90. On September 1992 service retirement examination, blood pressure was 130/70; the heart and vascular system were normal. On August 1993 VA examination, the Veteran was evaluated for heart damage that he contended was due to electric shock in service. He reported that in 1973, he sustained an electric shock and was treated at a dispensary for a few hours, reporting that immediately after the incident he was hit in the chest three times because his heart had stopped. He reported that he was told he had a heart murmur which was discovered in 1966, prior to service. He reported that he was found to have hypertension in 1977 and was on medication until August 1978 but had not taken medication since then. On physical examination, the cardiac silhouette was not enlarged by percussion and the heart had a regular rhythm. There was no evidence of murmur, gallop, or rub, and no sign of congestive heart failure. Blood pressure was 132/78. The diagnosis was history of electric shock in 1973 with no evidence of organic heart damage. On May 2002 Shannon Hospital admission, the Veteran reported that he had experienced an episode four months prior consisting of substernal chest pressure radiating across the chest and down both arms, associated with dyspnea, diaphoresis, weakness, and nausea. The episode resolved spontaneously, though the symptoms had returned and become more frequent over the two months prior to admission; the episodes appeared to be exertional. The Veteran reported that he had had what he described as “borderline” hypertension for 20 years, but for financial reasons had not been taking any medication or sought medical help. He reported that he had been a one-pack-per-day smoker until 1.5 years prior. His blood pressure was 164/101; the admission diagnoses included chest pain of unknown etiology and hypertension. A June 2002 discharge summary shows the Veteran had been transferred from a different hospital after he was admitted there for one week. He was on a ventilator for respiratory failure and bilateral pneumonia; he underwent a cardiac catheterization and was found to have cardiomyopathy. A stent insertion for coronary artery disease was done. Chronic obstructive pulmonary disease, hypertension, hypercholesterolemia, and new onset type 2 diabetes were noted. He had been admitted for complaint of off and on chest pain for several months and shortness of breath. His blood pressure on discharge was 130/72 and pulse rate was 85 per minute. Heart sounds were present and regular with no murmur. In a February 2003 discharge summary, the diagnoses listed included chest pain, history of coronary artery disease and myocardial infarction, no evidence of recurrent myocardial infarction, and possible acute coronary syndrome stabilized on medical therapy; ischemic cardiomyopathy with congestive heart failure improved on medical therapy; diabetes mellitus; and hypertension. Subsequent inpatient and outpatient treatment records consistently show assessments of coronary artery disease and hypertension. At a May 2015 Decision Review Officer hearing, the appellant testified that the Veteran had high blood pressure during service and was placed on medication for hypertension about one year after he left service in 1992. In a July 2019 VA medical advisory opinion based on record review, the consulting provider noted the Veteran’s blood pressure readings on numerous occasions [during service] including on service enlistment, re-enlistment, separation, and retirement exams. The provider noted the above-cited findings on August 1993 VA examination, June 2002 discharge summary, and VA treatment records showing multiple hospitalizations from June 2002 to March 2007 for biventricular congestive heart failure, coronary artery disease, chest pain rule-out myocardial infarction, hypotension, renal failure, diabetes mellitus, and chronic obstructive pulmonary disease. It was noted that although the Veteran had evidence of intermittently elevated blood pressures in service, these were incidentally noted during acute sick call visits for URI, gastroenteritis, low back pain, etc., and opined that pain or other acute illnesses can cause transient elevations in blood pressure. The provider stated that there is no objective evidence (such as a 5-day blood pressure check) to support a diagnosis of hypertension in military service. The provider noted that long-term untreated hypertension is known to cause cardiac enlargement due to left ventricular hypertrophy, however, the Veteran was noted to have normal blood pressure and normal heart examination on his 1992 service retirement examination. The provider further noted that the Veteran had normal blood pressure with normal heart size examination on his August 1993 VA examination, less than 12 months following his retirement from service. The provider noted that postservice treatment records are silent for diagnosis or treatment of hypertension until 2002 (approximately 10 years following the Veteran’s retirement from service). Given these findings, the provider opined that it is less likely than not (less than 50% probability) that the Veteran’s hypertension had its onset in service. The provider cited to medical literature pertaining to hypertension in adults. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death”, thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The disease acknowledged to be the primary cause of the Veteran’s death (renal failure) and the listed underlying causes of his death (sepsis and heart failure) are not shown to have been manifested in service. Consequently, service connection for those diseases on the basis that they became manifest in (and thus were incurred during) his service is not warranted. As noted above, certain chronic diseases (listed in 38 C.F.R. § 3.309(e)) may be service connected on a presumptive basis as due to exposure to herbicide agents/Agent Orange if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era. 38 U.S.C. § 1116. Service connection for a disease not subject to presumptive service connection may still be established with proof of actual causation in service [by an environmental exposure, or otherwise]. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The evidence does not show that the Veteran’s hypertension and/or heart disease was manifested during (or within a year following) his service. Postservice treatment records first show treatment for such disability many years after service, as noted above. Consequently, service connection for IHD on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) is not warranted. Although cardiovascular disease is a chronic disease, there is no evidence in the record of postservice continuity of symptomatology. Postservice evaluation/treatment records do not show or suggest that the Veteran’s IHD may somehow otherwise be directly related to his service. The July 2019 reviewing VA provider’s opinion indicating that there is no objective evidence to support a diagnosis of hypertension in military service, and noting that postservice treatment records are silent for diagnosis or treatment of hypertension until approximately 10 years following the Veteran’s retirement from service, and that it is less likely than not that the Veteran’s hypertension had its onset in service, reflects familiarity with the record, and includes rationale that cites to supporting factual data. It is probative evidence in the matter, and the Board finds it persuasive. There is no equally (or more) probative evidence in the record indicating that the listed underlying cause of the Veteran’s death (heart disease) was etiologically related to his service. It is also not alleged, nor does the record suggest, that service-connected major depression or pruritis ani contributed materially to cause, or hastened, the Veteran’s death. Turning to the claim for compensation under 38 U.S.C. § 1151, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish entitlement to benefits under 38 U.S.C. § 1151, the veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable. See VAOPGCPREC 40-97. To determine whether additional disability exists, VA compares the veteran’s physical condition immediately prior to the beginning of medical or surgical treatment to the veteran’s physical condition after such care had ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has additional disability does not establish cause. 38 C.F.R. § 3.361(c). To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran’s representative’s informed consent. 38 C.F.R. § 3.361(d). When evaluating the evidence of record, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant contends that the Veteran’s death was due to his being prescribed medication to which he had an extreme allergic reaction and resulting renal failure. The death certificate shows that the immediate cause of death was renal failure of 2 days duration, with secondary causes listed as sepsis of 5 days duration and heart failure of “years” duration. An autopsy report notes that the Veteran was admitted to the VA hospital on February 23, 2007 for an exacerbation of congestive heart failure with an ejection fraction of less than 20 percent and acute renal failure. Two days later, he was found down following an episode of hypoxic respiratory arrest of unknown duration. He was hypotensive and bradycardic, and was intubated and transferred to the MICU, where he was aggressively diuresed with Lasix for his CHD with some response; however, he was unable to be weaned from the ventilator secondary to severe hypoxia and agitation with attempts to remove sedation. An EEG on March 6, 2007 was consistent with moderate diffuse encephalopathy and hypoxic brain injury, which left the Veteran in a vegetative state with brainstem function intact. He also developed low grade fevers, thought to be due to atelectasis; numerous cultures were negative. An Indium scan was positive in the left anterior pelvis, but a follow-up CT scan of the abdomen/pelvis revealed only uncomplicated diverticulitis. On March 14, 2007, he spiked a fever to 105 degrees; he completed an 8-day course of cefepime/vancomycin/fluconazole on March 23, 2007, at which time he had a tracheostomy and PEG placement. Two days later, a PICC line was placed. He had persistent fevers up to 107 degrees. He was started on fluconazole, meropenem, ciprofloxacin, and vancomycin. He became hypotensive with multiorgan failure due to sepsis from a presumed GI source. He went into anuric renal failure with worsening metabolic acidosis, worsening lactic acidosis, and hyperkalemia. On March 26, 2007, he became severely hypotensive and was found to have pulseless electrical activity; advanced cardiac life support was performed but the Veteran died that evening. The autopsy findings were consistent with a natural cause of death from sepsis and multiorgan failure. The primary source of infection was most likely ruptured colonic diverticuli leading to abscess formation and eventually sepsis. The pathologist opined that the Veteran’s poor cardiac and renal function with history of diabetes mellitus was a major contributing factor in his death. The findings which were consistent with poor cardiac function included interstitial myocardial fibrosis consistent with old ischemic damage, evidence of cardiac stress from hypertension including left ventricular hypertrophy and microscopic hypotropic myocytes changes, dilated left and right ventricles consistent with cardiomyopathy, and severe occlusive atherosclerosis of the native coronary arteries. The pathologist opined that the findings of centrolobular fibrosis and ischemia in the liver suggested longstanding heart failure; diffuse arterionephrosclerosis and glomerulosclerosis were consistent with underlying renal dysfunction; and the evidence of hypoxic brain injury was consistent with the clinical history of cardiac arrest approximately one month prior to death. In a February 2016 VA medical advisory opinion based on record review, the provider cited to treatment records from February through March 2007 in support of an opinion that to a reasonable degree of medical certain, it is less likely as not that the Veteran’s care received at the VA Medical Center contributed to his cause of death. The provider opined that the care the Veteran received from VA did not involve carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, medical or surgical treatment, or examination. The provider opined that the VA Medical Center did not fail to exercise the degree of care that would be expected of a reasonable health care provider. The provider noted that the medical records demonstrate the Veteran was critically ill with very poor cardiac function on arrival to VA, and on the February 23, 2007 admission date had had an episode of acute hypoxemic respiratory failure with unclear etiology which contributed to a progressive decline in his clinical status. The provider opined that there is no evidence, after review of the events just prior to the decline, that the VAMC was negligent and contributed to the Veteran’s decline in clinical status. The provider opined that the Veteran’s death was due to complications of his severe heart disease, and he received appropriate and adequate medical treatment throughout his hospitalization. The appellant essentially alleges that she is entitled to benefits under 38 U.S.C. § 1151 because the Veteran died following treatment at a VA facility in 2007. To establish entitlement to benefits under 38 U.S.C. § 1151, she must show each of the following: (a) the disability or additional disability or death claimed; (b) VA treatment; (c) a nexus between the additional disability or death and the VA treatment; and (d) that the proximate cause of the additional disability or death was some element of fault on the part of VA, or was an event not reasonably foreseeable. While the appellant has satisfied requirements (a) and (b) of those listed above, requirements (c) and (d), a causal relationship between the Veteran’s cause of death and his February and March 2007 VA medical treatment and fault on the part of the VA or that the Veteran’s death was an event not reasonably foreseeable, are not. Specifically, the preponderance of the evidence is against a finding that there was a causal relationship between the VA medical treatment provided to the Veteran and his death and competent medical evidence has established that there was no fault on the part of VA in the treatment provided. The threshold (and dispositive in this case) factor is the lack of a nexus between the VA treatment provided and the Veteran’s cause of death. In that regard, in February 2016 a VA medical provider explicitly opined that there is no medical support for the appellant’s contentions. The opinion is by a medical professional competent to provide it, cites to supporting factual data, and explains the underlying rationale which cites to current medical knowledge; hence, it is probative evidence in this matter. As there is no competent (medical opinion) evidence to the contrary, the Board finds it persuasive. The appellant’s own assertions that the Veteran’s cause of death was as a result of the February to March 2007 VA treatment he received are not probative evidence in the matter. While it is not in dispute that the Veteran died following the February to March 2007 treatment, all she establishes by such observations is a coincidental (and not a causal) relationship. See 38 C.F.R. § 3.361(c). Whether a cause of death resulted from medical treatment such as that provided the Veteran by VA in February and does not support her allegations by citation to medical text or treatise (indicating or suggesting that the Veteran’s death may have resulted from treatment such as VA provided), and has not submitted any supporting medical opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). In summary, as a legal requirement for substantiating a claim under 38 U.S.C. § 1151, evidence that a claimed disability or death is causally related to the VA treatment in question, is not met; the claim seeking benefits under 38 U.S.C. § 1151 for the cause of the Veteran’s death claimed as due to VA medical treatment must be denied. The Board acknowledges the appellant’s sincere belief that the Veteran’s cause of death was etiologically related to his military service, environmental exposures therein, and/or VA treatment. However, the etiologies of his primary death-causing disease (renal failure) and the underlying conditions (sepsis and heart failure) are medical questions. The appellant is a layperson and her own opinion is not competent evidence in the matter. Accordingly, the Board finds that the preponderance of the evidence is against the claims on appeal; that there is no reasonable doubt that may be resolved in the appellant’s favor (see 38 U.S.C. § 5107(b); and that the appeal in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.