Citation Nr: 21003269 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-44 234 DATE: January 21, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in October 2014; according to his death certificate, the cause of death was left lobe pneumonia (interval of days), chronic respiratory failure due to systolic congestive heart failure (interval of months), systolic congestive heart failure (interval of months); the conditions listed as contributing to death were diabetes mellitus and obstructive sleep apnea; an affidavit of correction replaces chronic respiratory failure due to systolic congestive heart failure with “chronic respiratory failure requiring continuous oxygen, interval: years”. 2. At the time of his death, the Veteran’s service-connected disabilities were low back pain and residuals of an appendectomy. 3. The most probative (meaning most competent and credible) evidence is against finding he had pulmonary tuberculosis (TB), including during his service.   4. The preponderance of the evidence also shows that the conditions causing or contributing substantially or materially to his death did not initially manifest during his time in service or within one year of his discharge; moreover, the causes of his death also have not been otherwise shown to be related to or the result of his service, and his service-connected disabilities did not cause or aggravate any of the conditions that caused or contributed substantially or materially to his death. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for the cause of the Veteran's death. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1310, 1318, 5103, 5107; 38 C.F.R. §§ 3.22, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U. S. Air Force from September 1958 to August 1968. The appellant is his surviving spouse, so his widow. She testified in support of this claim during a hearing at the regional office (RO) in February 2020 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). In June 2020, the Board remanded this claim back to the RO because a medical opinion was needed to assist in deciding this claim, and this medical opinion since has been obtained and associated with the claims file so it may be considered in deciding this appeal. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either 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 service-connected disability will be considered a contributory cause of death when it combined to cause death or 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). The Veteran's initial death certificate lists the cause of his death as left lobe pneumonia (interval of days), chronic respiratory failure due to systolic congestive heart failure (interval of months), systolic congestive heart failure (interval of months), with conditions contributing to death of diabetes mellitus and obstructive sleep apnea. A 2016 affidavit for correction replaces chronic respiratory failure due to systolic congestive heart failure with “chronic respiratory failure requiring continuous oxygen, interval: years”. At the time of his death, the Veteran was in receipt of service connection for low back pain and residuals of an appendectomy. There is no competent and credible evidence of record, and the appellant does not contend, that either of those disabilities caused his death. He was not in receipt of service connection for any of the conditions listed on his death certificate. The appellant contends, instead, that he had TB in service and that his death, in part, was due to this claimed TB. The Veteran’s service treatment records (STRs) are unremarkable for TB for the first 29 years of his service. His March 1968 Report of Medical History for Retirement purposes reflects that he denied TB, and his chest x-ray as normal; however, a July 29, 1968 STR shows he had a positive Tine test. (A tine test is a multiple-puncture tuberculin skin test.) Two days later, a July 31, 1968 STR notes a negative tine test but that he had not waited the requisite 72 hours. An August 2, 1968 STR notes a positive tine test; he was referred to Military Public Health for an X-ray. His service ended later that same month. Post-service May 1973 correspondence from Dr. Abad reflects the following: [The Veteran] was not hospitalized in 1969 by us. He came to the chest clinic on 11-18-69 originally because of an abnormal mini film which showed a stable lesion over the second intercostal space on the right. At that time[,] he had a skin test (PPD) [purified protein derivative of tuberculin] which showed a positive reaction of 12 mm. Because of this he was started on INU 300 mgs. daily as a preventive measure therapy. He took this medication until 11-24-70 when it was discontinued as his prophylactic treatment was completed. A large chest x-ray taken on 11-18-69 showed there was no recent disease present in the lungs or heart. There was an anonymous articulation between the first and second ribs on the right which was not considered significant clinically. Serial films taken 5-22-70, 11-24-70 and 5-26-71 were. stable and unchanged.(Dr. Payton and Dr. Mills, Radiologists). [The Veteran] had a past history of pneumonia in 1940-l948. [The Veteran] was closed to our chest clinic on 5-26-71. His chemo therapy was completed as mentioned before. We have not seen him since that time. A June 1973 VA X-ray record for compensation purposes reflects that the Veteran’s lungs were clear. The corresponding VA examination report shows his respiratory system was negative. He had normal resonance, normal breath sounds, no rales, no rhonchi, and no fraction rubs. It was noted that a pulmonary disability was not found. Subsequent clinical records are unremarkable for TB. For example, a January 1993 Department of Radiology, St. John Medical Center record indicates there was no evidence of acute disease and that his “lung fields appear clear”. A January 1994 record notes he had had an episode of severe bronchitis that had completely cleared, and a September 1998 Kaiser record notes that his lungs were clear. A June 2010 Nuclear Medicine Consultation Report indicates the Veteran was seen with a complaint of shortness of breath; however, the record is unremarkable for TB and indicates an abnormal EKG of the heart. Private records (St. John Medical Center) dated in 2012 shows the Veteran was seen for congestive heart failure (CHF) and impending respiratory failure. It was noted that he had a past medical history significant for hypertension, diabetes, obstructive sleep apnea, and prostatic hyperplasia. He reported that he had been having difficulty breathing for the past 5-6 days and was brought to the emergency department by his wife. It was further noted that he “certainly has acute on chronic ventilatory failure with hypercapnia and this is probably due to his underlying diastolic dysfunction and congestive heart failure as well as sleep apnea with obesity hyperventilation.” Again, the record is unremarkable for TB. The appellant-widow contends that the Veteran was on oxygen in 2012 owing to TB and that his alleged TB while in service contributed to chronic obstructive pulmonary disease (COPD) and chronic respiratory failure. However, the clinical evidence of record does not support this notion. Not only is the 2012 record unremarkable for TB, but February 2016 Kaiser Permanente (Dr. Chang) records show the Veteran had been his patient and that, “[b]ased on our record, he started on home oxygen in 2012 after his hospitalization for congestive heart failure.” The record on appeal also includes February 2020 correspondence from Dr. Chang (but signed, on his behalf, by Dr. McClelland), indicating the Veteran had been seen in 2012 and 2013 by Dr. Yan, who was unable to confirm the Veteran had COPD but that it could not be ruled out. Dr. Chang acknowledged there is no medical literature conclusively linking pulmonary TB with long-term pulmonary sequalae (residuals), such as COPD, but there was at least one article suggesting the link and calling for more research. Dr. Chang stated that it was his professional opinion that it is “possible that [the Veteran’s] condition is a direct result of his pulmonary [TB] as due to his military service based on literature research and lack of any other plausible explanation for his chronic respiratory failure.” Primarily because of that medical opinion “suggesting” this possible link, the Board remanded this claim in June 2020 to obtain more definitive medical comment on this posited correlation (“nexus”) to assist in determining whether any condition attributable to the Veteran’s military service either caused or contributed substantially or materially to his death. This additional medical comment was needed because Dr. Chang’s opinion lacks significant probative value for several reasons. For one, there are no clinical records predicated on chest X-rays or contemporaneous to the Veteran’s TB infection noting pulmonary TB. In addition, there are other plausible explanations for his chronic respiratory failure (i.e., underlying diastolic dysfunction, congestive heart failure, obesity).   Moreover, attesting that something is “possible” is too speculative upon which to base service connection. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). Essentially, it is possible that many things may occur, but “possible” does not mean statistically likely or even as likely as not. As a result of the Board remanding this claim for this needed additional medical comment, the record on appeal also now includes a June 2020 Disability Benefits Questionnaire (DBQ), which the Board finds is the most probative (i.e., competent and credible) opinion of record on the determinative issue of causation. This additional examiner explained that the August 5, 1968 PPD test that was 4mm is considered negative, and the 12mm (in November 1969) indicated only TB exposure without pulmonary TB. This examiner also noted there are no medical treatment records documenting a diagnosis of pulmonary TB in service or post service or any treatment for this claimed condition. As well, this June 2020 examiner goes on to explain: In most individuals, Mycobacterium tuberculosis infection is contained initially by host defenses, the infection remains latent or is cleared, and the individual is asymptomatic and noninfectious. A positive TB skin test does not equate to pulmonary TB, it only equates to latent TB. It is unclear why Dr Chang stated in 2020 that the Veteran was treated for pulmonary TB in 08/1968 as there are not treatment records documenting that. Medical record from 1970 chest clinic documented treatment in 1969 for PPD conversion of 12 mm which was treated with prophylactic INH, but did not constitute pulmonary TB, rather was a TB conversion (latent TB), that was adequately treated and no evidence of pulmonary TB was found by in 1970 or later years on chest imaging.   In sum, the Veteran’s PPD was positive in service which was indicative of latent TB infection. Due to his positive test for an infection, he was treated from 1969 to 1970. This treatment was not to treat TB disease (pulmonary TB) because he did not have it but was to treat the TB infection (latent TB) so that it did not turn into TB pulmonary disease. Essentially, he was given a prophylactic. The claims file also includes a Mayo Clinic article on tuberculous noting that, if “you test positive for latent TB infection, your doctor may advise you to take medications to reduce your risk of developing active tuberculous. The only type of tuberculosis that is contagious is the active variety, when it affects your lungs.” As explained by the 2020 DBQ examiner, the Veteran had latent TB, which, consistent with the Mayo Clinic article, was treated to reduce the risk of him developing active TB (i.e., preventive treatment). Articles from the Journal of Clinical Tuberculous and Other Mycobacterial Diseases discuss the long-term complications of pulmonary TB; however, again, as clarified, the Veteran did not ever have pulmonary TB. The appellant-widow has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of the Veteran’s respiratory disabilities and unfortunate death, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond her lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).   Moreover, as the appellant testified concerning during her hearing before this Board, she did not marry the Veteran until 1980 (more than a decade after his separation from service), and she was not aware of the reasons for his treatment in 1969-1970. She also stated that he had not been aware of a respiratory problem until 2010 or 2012, so not until approximately four decades after his separation from service. She further testified that, ever since 1980 (more than a decade after his separation from service), he had shallow breathing, but he did not pay attention to it or he thought it was “something else”. That lengthy lapse of time between his separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding a service connection claim and tends to refute the notion the disability being claimed dates back to his service or is otherwise related or attributable to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Indeed, even assuming the appellant was competent to notice him having shallow breathing, this was still more than a decade after his separation from service. And, notably, a 2012 clinical record shows he had no history of COPD and asthma. As required, the Board has considered all the disabilities listed on the Veteran’s death certificate, but there is no probative evidence indicating it is as likely as not that any of them were caused or aggravated by his service or a service-connected disability. Moreover, he did not have service in an area with presumed exposure to an herbicide agent such that consideration of 38 C.F.R. § 3.309(e) is warranted.   The Board certainly appreciates and is respectful of the Veteran's very honorable military service; however, for the reasons and bases discussed, the preponderance of the evidence is against the widow-appellant's claim for service connection for the cause of his death. There is no reasonable doubt to be resolved in her favor. Consequently, her claim of entitlement to Dependency and Indemnity Compensation (DIC), for cause of death, must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.