Citation Nr: 20034094 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 16-51 600 DATE: May 15, 2020 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in November 2014. The immediate cause of death listed on his death certificate was complications of wound healing due to or as a consequence of thrombectomy of the right lower extremity due to or as a consequence of ischemia of the lower extremities. Anticoagulation therapy for atrial fibrillation is noted to be a significant condition contributing to death but not resulting in the underlying cause of death. 2. At the time of the Veteran's death, the Veteran had established service connection for coronary artery disease (CAD) with angina. 3. The preponderance of the evidence is against a finding that the Veteran's cause of death was attributable to service, any incident of service, or a service-connected disability, to include CAD. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.5, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1968 to October 1974. The Veteran died in 2014; the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In her October 2016 substantive appeal, the appellant requested a videoconference hearing before the Board. See October 2016 VA Form 9. However, in a December 2016 letter, the appellant stated that she wished to withdraw her request for a hearing before the Board. See December 2016 Other. As such, the Veteran's request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e). By way of background, this matter was previously before the Board in December 2018, April 2019, and August 2019, when it was remanded for further development. 1. Entitlement to service connection for the cause of the Veteran's death is denied. The appellant states that she is entitled to service connection for the cause of the Veteran's death. Specifically, the appellant stated that the terminal complications from the Veteran’s right lower extremity thrombectomy, to include atrial fibrillation and ischemia, were caused by or related to the Veteran’s service-connected CAD. See January 2017 Correspondence. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 C.F.R. § 3.5. Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of the Veteran's death. 38 C.F.R. § 3.312. Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered as the principal, or primary, cause of death when such disability, 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 inherently one not related to the principal cause. In determining whether the 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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Certain diseases have been determined to be associated with the use of herbicides in Vietnam and VA regulations identify those diseases that are presumptively associated with herbicide exposure in Vietnam. 38 C.F.R. § 3.309(e). As noted above, the Veteran died of complications of wound healing due to or as a consequence of thrombectomy of the right lower extremity due to or as a consequence of ischemia of the lower extremities. Anticoagulation therapy for atrial fibrillation was noted as a significant condition contributing to death but not resulting in the underlying cause of death. See December 2014 Death Certificate. At the time of his death, the Veteran was not service connected for ischemia of the lower extremities or atrial fibrillation. Rather, the Veteran was service connected for CAD with angina. See September 2011 Rating Decision – Narrative. Turning to the evidence of record, a review of the Veteran's service treatment records (STRs) shows a November 1968 enlistment report of medical examination that is absent for findings pertaining to the Veteran’s heart and vascular system. A January 1969 medical record shows that the Veteran reported left lower anterior pleuritic chest pain. The impression was viral pneumonitis. A December 1970 record shows that the Veteran reported mild chest pain. On physical examination, the Veteran’s chest was noted to be clear and an x-ray showed the Veteran’s chest to be within normal limits. The assessment was possible lay malaria and mild upper respiratory infection. The September 1974 separation report of medical examination shows that the Veteran's heart and vascular system were normal and the Veteran’s chest x-ray was within normal limits. On the corresponding report of medical history, the Veteran denied shortness of breath, pain or pressure in chest, palpitation or pounding heart, and heart trouble. Notably, the STRs do not show a diagnosis for CAD, ischemia, or atrial fibrillation. See September 2014 STR – Medical. A review of the post-service treatment records shows that the Veteran was diagnosed with squamous cell carcinoma of the anus (rectal cancer) in July 1994 and underwent chemotherapy with Fluorouracil and Mitomycin and radiation therapy as treatment. See November 1994 VA Form 10-1000 Hospital Summary. A January 1995 University of Cincinnati hospital discharge summary shows that the Veteran underwent a chest x-ray, which showed mild pulmonary edema and a small right pleural effusion on the right lateral chest x-ray. The Veteran was also afforded an electrocardiogram (EKG), which showed sinus tachycardia at a rate of 120 and Q waves in the V1 right ventricular with a right bundle branch. The Veteran’s diagnoses included pulmonary hypertension believed to be secondary to hypersensitivity pneumonitis due to Mitomycin, right heart failure believed to be secondary to pulmonary hypertension, and atrial fibrillation and atrial flutter. See November 1994 Medical Treatment Record – Non-Government Facility. In April 2008, the Veteran was diagnosed with new onset atrial fibrillation and deep vein thrombosis of the left lower extremity, most likely believed to be secondary to atrial fibrillation. See February 2009 Medical Treatment Record – Non-Government Facility. A June 2008 VA hematology and oncology outpatient note shows that the Veteran was being treated for CAD and angina syndrome. The Veteran’s heart and lung examinations were noted to be unrevealing. See December 2008 Medical Treatment Record – Government Facility. The Veteran was afforded a VA examination for heart conditions in January 2011. The examiner noted that the Veteran underwent an EKG in December 2010, which showed normal systolic function of the left and right ventricles, left ventricular wall thickness at the upper limits of normal, and an ejection fraction of 65 percent. No other diagnostic tests were indicated. Following the examination, the examiner diagnosed the Veteran with CAD, ischemic heart disease, and chronic atrial fibrillation. See January 2011 VA examination. VA obtained a medical opinion for service connection for a left leg injury, to include as secondary to the Veteran’s service-connected CAD, in May 2012. Following an examination and review of the Veteran’s claims file, the VA examiner opined that it was less likely than not that the Veteran’s left leg disability was caused by or the result of ischemic heart disease. In support of his opinion, the examiner stated that the Veteran’s medical records showed that he had been diagnosed with atrial fibrillation but did not support a diagnosis of ischemic heart disease or CAD. The examiner further stated that there was no nexus with which to link ischemic heart disease or CAD to embolization. Rather, the examiner opined that the Veteran’s atrial fibrillation caused clots to develop in the left atrium of his heart, due to the incomplete pumping action, and that the clots were thrown distally through his vascular system, causing occlusion of the blood vessels in the Veteran’s left leg. See June 2012 VA 21-2507a Request for Physical Examination. With regard to the claim on appeal, VA obtained a medical opinion regarding the Veteran’s cause of death in August 2016. The VA examiner opined that it was less likely than not that the Veteran’s service-connected CAD or treatment for his service-connected CAD contributed to his death. In support of the opinion, the examiner stated that the Veteran’s atrial arrhythmias appeared to have started in the mid-1990s as a complication from his treatment for rectal cancer. In addition, the examiner reported that a review of the Veteran’s medical records did not reflect any indication of heart muscle damage from CAD, making it unlikely that his atrial fibrillation was related to CAD. The examiner also noted that anticoagulation mentioned on the Veteran’s death certificate was, at least in part, used to prevent embolization from his atrial fibrillation, and that because the fibrillation was unlikely to be related to CAD, it would not have been used to treat CAD. The August 2016 VA examiner also opined that available test results showed that the Veteran had relatively good cardiac function, which would not have caused debilitating effects or general impairment of health. The examiner also opined that it was less likely than not that disabilities associated with the Veteran’s conceded Agent Orange exposure contributed to his death because CAD, the only disability associated with Agent Orange exposure found in the Veteran’s medical records, was not found to be a contributing factor in his death. Finally, the examiner opined that the Veteran’s STRs did not reveal any other treatment or diagnoses which would have at least as likely as not contributed to his death. See September 2016 CAPRI. In support of the claim, the appellant submitted a medical opinion from a private orthopedic surgeon, Dr. James M. Dauphin, dated in January 2017. Dr. Dauphin opined that the Veteran’s cause of death could be considered a secondary condition to his CAD. In support of his opinion, Dr. Dauphin noted that the Veteran was treated for rectal cancer in 1994, diagnosed with atrial fibrillation in 1995, and developed acute blood clots in his leg in 2008, which led to his left leg amputation. Dr. Dauphin further noted that the Veteran was diagnosed with cardiovascular disease, hypertension, angina, atrial flutter, atrial embolism, and peripheral vascular disease in 2011, but stated that the Veteran’s medical history was absent for heart procedures and that there was no recent history of congestive heart failure. After observing that the Veteran passed away after he developed a hemorrhage following an embolectomy of the right femoral artery in November 2014, Dr. Dauphin theorized that the Veteran was likely started on heparin for the surgery, which was allowed to wear off, and sent home on Coumadin. Thereafter, Dr. Dauphin stated that the Veteran appeared to develop breakthrough bleeding, which led to his death. As such, Dr. Dauphin stated that he would connect the Veteran’s death logically to his CAD, which caused the embolus. See January 2017 Medical Opinion. VA obtained another medical opinion in February 2019. The examiner opined that it was less likely than not that the Veteran’s chronic atrial fibrillation requiring anticoagulation was the result of CAD, and as such, any CAD or CAD treatment was less likely than not a significant contributor to his death. In support of his opinion, the examiner stated that the Veteran developed atrial fibrillation as a result of the Mitomycin chemotherapy he underwent to treat rectal cancer in 1995, rather than from CAD. The examiner also stated that the chemotherapy caused the Veteran’s chronic pulmonary hypertension, right heart failure, and right atrial enlargement, which in turn caused his atrial fibrillation. The examiner noted that ischemic heart disease was not considered until 2003 or 2004; the examiner also noted that a February 2011 cardiology consultation found that an ischemic heart disease work-up was not warranted because the Veteran’s EKG showed normal ejection fraction and did not show angina, stents, or coronary artery bypass graft. See February 2019 C&P examination. In April 2019, VA obtained an addendum medical opinion from the February 2019 VA examiner. The examiner referenced the February 2019 VA opinion and stated that the etiology of the Veteran’s atrial fibrillation was pulmonary hypertension from chemotherapy in the mid-1990s. In support of his opinion, the examiner noted that ischemic heart disease was a later consideration and referred to the February 2011 VA cardiology consultation referenced above. As such, the examiner opined that no debility from ischemic heart disease caused less resistance to the other conditions that led to the Veteran’s death. See April 2019 C&P examination. VA obtained a final addendum opinion in January 2020. The VA examiner opined that it was less likely as not that the complications and circumstances of the Veteran’s death, including the cause of death, or the other significant condition of atrial fibrillation with chronic anticoagulation, were due to, or secondary to, CAD. The examiner further opined that there was insufficient objective, legitimate evidence of a diagnosis of CAD. In support of her opinion, the VA examiner stated that it was clear and well-documented from the medical evidence of record that the Veteran’s atrial fibrillation was caused by Mitomycin chemotherapy, which the Veteran took to treat rectal cancer in 1995. The examiner further stated that it was well-documented that the Mitomycin chemotherapy led to chronic pulmonary hypertension, right heart failure, and right atrial enlargement, none of which were caused by CAD. The examiner further stated that there were no treatments for CAD, as the Veteran was never diagnosed with CAD by objective testing, and as such, the nonexistent treatments could not affect, or contribute to, the Veteran’s death. Finally, the examiner opined that because CAD was never clinically and legitimately diagnosed in the Veteran, it was less likely as not to have caused debilitating effects or general impairment of health. See January 2020 C&P examination. After a review of the evidence of record, the Board finds that entitlement to service connection for the cause of the Veteran's death is not warranted. Initially, the Board notes that the Veteran was never diagnosed with CAD by objective testing and that such a diagnosis appears to be contradicted by other evidence of record, to include the May 2012 and January 2020 VA medical opinions. The Board observes that a necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). The Board also finds no evidence or specific argument from the appellant indicating that the Veteran had rectal cancer, ischemia, or atrial fibrillation during his active duty service. Further, while the record contains evidence that the Veteran was diagnosed with rectal cancer, ischemia, and atrial fibrillation, the Board finds no evidence that the conditions manifested to a compensable degree within one year after his service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, while the Veteran's military personnel records support a finding that the Veteran was presumptively exposed to herbicide agents in Vietnam, the Veteran's treatment records show no diagnoses of conditions which may be presumed to be related to herbicide exposure under 38 C.F.R. § 3.309(e). Instead, the Veteran's diagnosed rectal cancer, ischemia, and atrial fibrillation are not presumptive conditions contemplated under 38 C.F.R. § 3.309(e). Turning to the appellant's primary claim that the terminal complications from the Veteran’s right lower extremity thrombectomy, to include ischemia and atrial fibrillation, were caused by or related to his service-connected CAD, this claim is not supported by the most probative evidence of record. The Board notes that there are conflicting medical opinions as to whether the Veteran’s service-connected CAD caused or contributed to his death. After a review of those opinions, the Board finds the August 2016 and January 2020 VA examination reports, when considered together, to be the most probative evidence of record. In this regard, the Board finds Dr. Dauphin’s January 2017 medical opinion to be inadequate as it is speculative in nature. In the January 2017 medical opinion, Dr. Dauphin opined that the Veteran’s cause of death could be considered a secondary condition to his CAD. In this regard, the Board notes that speculative language such as “could be considered” does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest the possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Thus, the Board affords this opinion decreased probative value. In contrast, the August 2016 and January 2020 VA examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the August 2016 and January 2020 VA examiners’ opinions are further supported by the medical treatment records, which do not list CAD as a condition contributing to the Veteran's death. In this regard, the Veteran’s medical records show that he developed atrial fibrillation and ischemia as a result of the Mitomycin chemotherapy used to treat his rectal cancer in 1995. In addition, the January 2011 VA examination shows that the Veteran’s CAD was diagnosed without corroboration from objective testing and in spite of conflicting findings from the December 2010 EKG. Further, in the May 2012 VA medical opinion, the examiner stated that the Veteran’s medical records show he was diagnosed with atrial fibrillation, but that the medical evidence of record did not support a diagnosis for CAD. The Board has considered the appellant's lay statements that the terminal complications from the Veteran’s right lower extremity thrombectomy were caused by or related to his service-connected CAD. With regard to lay evidence of a nexus, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, without evidence showing that she has medical training or expertise, she cannot competently provide a medical nexus opinion between the Veteran’s terminal complications, to include atrial fibrillation and ischemia, and CAD. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, to the extent the appellant may be competent to opine as to medical etiology, the Board finds that the appellant's lay assertions in the present case are outweighed by the August 2016 and January 2020 VA examiners’ opinions in which the complications from the Veteran’s right lower extremity thrombectomy were found not etiologically related to service. The VA examiners have training, knowledge, and expertise on which they relied to form their opinions, and they provided a persuasive rationale. In sum, the preponderance of the evidence of record weighs against a finding that the Veteran's death was related to his active service or that he had a service-connected disability that contributed substantially and materially to his death. Accordingly, there is no reasonable doubt to be resolved and entitlement to service connection for the cause of death is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.