Citation Nr: 21003121 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-25 450 DATE: January 19, 2021 ORDER The claim to reopen service connection for the cause of the Veteran's death is granted. The claim for service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The claim for entitlement to service connection for the cause of the Veteran’s death was initially denied in a final July 2009 administrative decision. The appellant made multiple attempts to reopen the claim and was most recently denied in a January 2013 administrative decision. 2. The evidence received since the January 2013 administrative decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim for service connection for the cause of the Veteran’s death. 3. The Veteran died on February [REDACTED], 1991 because of systemic septicemia due to pneumonia due to severe coronary and peripheral vascular disease. At the time of his death, the Veteran was service connected for a gunshot wound of the left posterior chest and hearing loss of the left ear. 4. The Veteran’s coronary artery disease (CAD) and peripheral vascular disease were demonstrated years after service, are not etiologically related to a disease or injury in service, and were not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for the cause of the Veteran’s death. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1944 to March 1946 with service in Germany during World War II. He was a recipient of the Europe Campaign Medal with three bronze stars, the Purple Heart Medal, and the Bronze Star Medal. The Veteran died on February [REDACTED], 1991 and the appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Jurisdiction over the claims file is currently held by the RO in San Diego, California. This case was previously before the Board in January 2018 when it was remanded for additional development. It has now returned to the Board for further appellate action. The Board has determined that the appellant is not currently represented in this appeal. The appellant was previously represented by American Veterans (AMVETS), but the organization withdrew their power of attorney and representation in September 2015. However, in September 2020, the Board received an informal hearing presentation/brief from AMVETS in support of the appeal. The appellant was contacted in an October 2020 letter and asked to clarify her representation before the Board. The appellant was notified that if a response was not received within 30 days, the Board would assume she wished to represent herself and proceed with review of the appeal. In November 2020, the appellant submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) attempting to appoint The American Legion as her representative. Unfortunately, this form was not complete as it was not signed by The American Legion, and the appellant was provided a new form and asked to re-submit it in December 2020. No response to this request was received. As the appellant did not appoint a new representative as requested in the Board’s October 2020 letter, the Board will assume she wishes to remain unrepresented and will proceed with a decision in this case. 1. Whether new and material evidence has been received to reopen service connection for the cause of the Veteran's death. The claim for service connection for the cause of the Veteran’s death was initially denied in a July 2009 administrative decision from the VA Pension Management Center in St. Paul, Minnesota. The Pension Management Center denied the claim as the appellant did not provide any evidence in support of her contentions, including responding to a request for information that would link the cause of the Veteran’s death to a disability that was incurred or aggravated during his military career. The appellant was told she had until May 18, 2010 to submit the requested evidence to allow for continued processing of her original claim. If information was received after May 18, 2010, the appellant was informed it would be considered a new claim. No response was received from the appellant until March 2011 (well after the May 18, 2010 deadline) and the July 2009 the decision denying the claim became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Following the July 2009 administrative decision, the appellant made multiple attempts to reopen the claim for service connection for the cause of the Veteran’s death, beginning in March 2011. Multiple rating and administrative decisions were issued in 2011, 2012, and most recently in January 2013 denying the claim. The evidence received since the January 2013 administrative decision includes new and material evidence. During the October 2017 hearing, the appellant testified that she was told by the physician who performed the Veteran’s first heart surgery that the Veteran’s heart was injured from his service-connected gunshot wound to the chest. This evidence is new as it was not previously considered and is material as it relates to a previously unestablished fact in the claim—the presence of a relationship between the Veteran’s cause of death and a service-connected gunshot wound of the posterior left chest. Thus, new and material evidence has been received and reopening of the claim is granted. 2. Entitlement to service connection for the cause of the Veteran's death. The Veteran died on February [REDACTED], 1991 and the appellant is his surviving spouse. The death certificate lists the cause of death systemic septicemia due to pneumonia due to severe coronary and peripheral vascular disease. At the time of his death, the Veteran was service connected for a gunshot wound of the left posterior chest and hearing loss of the left ear. The appellant contends that the Veteran’s death was related to the gunshot wound, as shrapnel remaining in his chest and back injured his heart and led to his death by coronary disease. In the instance of a Veteran’s death, certain enumerated survivors are eligible for compensation if the death is found to be service connected. The evidence must show that a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of the Veteran’s death. For a service-connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not enough to show that it casually shared in producing death. Rather, it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The record establishes that the Veteran’s CAD and peripheral vascular disease contributed substantially to his death. The death certificate identifies septicemia and pneumonia due to severe coronary and peripheral vascular disease as the immediate cause of death. An autopsy was performed a week after the Veteran’s death, and the examining physician/pathologist concluded that the Veteran died from multiple complications related to longstanding coronary atherosclerosis. Additionally, a VA examiner in June 2020 agreed with the February 1991 autopsy physician and concluded that the Veteran’s death was caused by complications associated with CAD. The Board therefore finds that the Veteran’s death was caused by CAD and peripheral vascular disease. There is no evidence that the Veteran’s CAD or peripheral vascular disease are etiologically related to his active duty service. The appellant does not contend that the Veteran’s CAD or vascular disease were incurred in service and none of the competent medical evidence supports a link between the two. Service records show that the Veteran was hospitalized in March 1945 in Germany for a shrapnel wound to the back lacerating the thoracic wall resulting in scarring of the left posterior chest and below the left shoulder blade. There is no evidence of cardiac or vascular abnormalities during service and the Veteran’s cardiovascular system was normal at the March 1946 separation examination. The post-service evidence also does not support the claim. Six months after discharge, in September 1946, the Veteran was examined with complaints of soreness in the left upper back (near his scar) and the mid-back associated with heavy lifting. He was diagnosed with a back strain related to the shrapnel wound, as well as a strain of the lumbar sacroiliac area. Again, no abnormalities of the heart or vascular system were identified. The first evidence of a chronic heart disability dates from 1975, when the Veteran received his first coronary artery bypass graft (CABG), almost 30 years after his discharge from active duty. He required additional cardiac surgeries in 1980, 1982, March 1986, and June 1986. In December 1990, he experienced the recurrence of chest pain and was admitted to Loma Linda University Medical Center (UMC) on January 25, 1991. An angiogram for occluded arteries was performed on January 28, 1991. On February 4, 1991, the Veteran underwent a five vessel CABG and while he initially progressed well following surgery, he experienced a myocardial infarction on February 6, 1991. Thereafter, he developed acute renal and liver failure and worsening respiratory problems leading to sepsis, pneumonia, and his death on February [REDACTED], 1991. None of his treating physicians have linked the Veteran’s CAD or peripheral vascular disease to active service; in fact, review of his medical records from Loma Linda UMC shows that the physicians noted the Veteran’s strong family history of heart disease (with his mother, father, sister, and brother all dying from the disease), and the Veteran’s long history of smoking cigarettes despite the recommendations of all his doctors that he quit. As there is no medical or lay evidence of a nexus between the Veteran’s CAD and peripheral vascular disease, the Board finds that service connection for the cause of the Veteran’s death based on these disabilities is not possible. The Board will now turn to the appellant’s main contentions in this case: that the Veteran’s death was caused by his service-connected gunshot wound to the left chest. There appears to be some disagreement in the record regarding the precise nature and location of the Veteran’s in-service injury. Service records show that he was struck in the thoracic wall (back) with a shell fragment on March 18, 1945. The March 1946 separation examination also states that the Veteran incurred a shell fragment wound to the back in Germany in 1945 resulting in a well-healed non-symptomatic scar of the left posterior chest. In contrast, physical examinations performed six months later, in September 1946, note the presence of a shrapnel wound scar below the Veteran’s left shoulder blade on his back near the thoracic spine. An April 1947 VA examination observed several healed scars on the Veteran’s left posterior chest with no associated deformity. The Veteran was service connected for residuals of a gunshot wound of the left posterior chest in December 1946, and the Board therefore finds that such residuals consist of scarring to the left posterior chest and back below the left shoulder blade. Although the Veteran’s service-connected disability includes some scarring on the posterior chest, there is no competent evidence that the residuals of his in-service gunshot wound contributed substantially or materially to his death. The appellant testified in October 2017 that the Veteran retained shrapnel and other shell fragments in his chest and back near his heart, and these fragments damaged his heart leading to his death. The appellant also testified that she was told by the physician who performed the Veteran’s first heart surgery in 1975 that the Veteran’s heart was “all torn up” from his in-service injury. Although the appellant is competent to report her own observations, including her recollections of conversations with physicians, she is not competent to competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Additionally, her second-hand account of conversations with a physician, dating over 45 years ago, is considered too unreliable to constitute competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (finding that the connection between what a physician said and the layman's account of what he purportedly said, filtered through a layman's sensibilities, is too attenuated and inherently unreliable to constitute medical evidence). The appellant’s statements therefore do not constitute competent evidence in support of the claim. The contents of the Veteran’s medical records also do not support the claim for service connection for the cause of his death. Although the appellant contends that the Veteran retained multiple pieces of shrapnel in his chest and back that damaged his heart, service records are entirely negative for findings of shrapnel or a connection between the Veteran’s heart and his posterior chest and back wounds. Post-service X-rays of the Veteran’s chest and back dating from 1947 are also negative for such gunshot fragments. These X-rays were performed in conjunction with an April 1947 VA examination, multiple admissions to various VA hospitals, and most recently, during the Veteran’s final admission to the Loma Linda UMC in 1991. The 1991 chest X-rays documented scarring associated with the Veteran’s past cardiac surgeries, as well as sutures and surgical clips. There were no findings of shrapnel related to the Veteran’s gunshot wound in 1945. Similarly, the February 1991 autopsy report did not include any findings or notations of shrapnel or other gunshot fragments in its review of the Veteran’s systems, including the heart. In fact, the examining physician did not make any mention of the Veteran’s service-connected disability, despite including a thorough recounting of the Veteran’s medical history. The service-connected gunshot wound was not included on the Veteran’s death certificate and treatment records leading up to his death are negative for evidence of complaints or treatment related the gunshot wound or evidence of a link between the wound and the Veteran’s heart disease, vascular disease, and death. Finally, the June 2020 VA examiner specifically found that the Veteran’s in-service left posterior chest gunshot wound did not contribute substantially or materially to his death. The examiner reviewed the medical evidence in connection with the claim, including the February 1991 autopsy report, and found that the complications associated with the Veteran’s severe coronary atherosclerosis “had nothing to do with his left chest (posterior) [gunshot wound] in-service.” Therefore, the weight of the competent medical evidence is clearly against a link between the Veteran’s service-connected gunshot wound and his death. The Board is sympathetic to the appellant’s claim, but the evidence does not establish that service connection is warranted for the cause of the Veteran’s death. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.