Citation Nr: 21003467 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 11-28 306 DATE: January 21, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C. 1151 for the cause of the Veteran's death is denied. Entitlement to service connection for the cause of the Veteran’s death is denied. Entitlement to service connection for hypertension, for accrued benefits purposes, is denied. Entitlement to service connection for obstructive sleep apnea (OSA), also for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran’s death was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in the course of VA treatment or examination or owing to an event not reasonably foreseeable. 2. His cause of death, cardiopulmonary arrest due to unknown causes, was unrelated to his service. 3. The preponderance of the evidence is against finding that hypertension or OSA began during his service, within a year of his discharge, or was otherwise related or attributable to an injury, a disease, or an event during his service. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to DIC under 38 U.S.C. § 1151. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.361. 2. The criteria are not met for entitlement to service connection for the cause of the Veteran’s death. 38 U.S.C. §§ 1110, 1112, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. 3. The criteria are not met for entitlement to service connection for hypertension and OSA. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty (AD) from October August 1981 to March 1982 and had additional service in the National Guard, so presumably at times on active duty for training (ACUDTRA) and inactive duty training (INACDUTRA). Unfortunately, the Veteran died in December 2009. The appellant is his surviving spouse, so widow. She appealed to the Board of Veterans’ Appeals (Board) from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). She testified in support of these claims during a hearing in February 2014 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record.   The Board since has twice remanded these claims back to the RO for further development and consideration – initially in December 2014 and more recently in February 2018. After receiving the claims back from the Agency of Original Jurisdiction (AOJ), i.e., RO, the Board issued a decision in February 2019 denying the claims, and in response the appellant-widow appealed to higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In May 2020, the contesting parties filed a Joint Motion for Remand (JMR), which the Court granted in an Order that same month, vacating the Board’s decision denying these claims and remanding them back to the Board for even more development, including attempting to obtain treatment records from the University of Alabama at Birmingham (UAB) and an addendum medical opinion. In furtherance of this, the Board, in turn, again remanded these claims back to the RO in September 2020. On remand, VA and the widow-appellant, even herself, attempted to obtain these treatment records from UAB Hospital, however, both were told by personnel there that these records do not exist or no longer exist. The addendum medical opinion additionally requested on remand also was obtained and associated with the claims file, and it provides the additional information requested. Thus, there has been compliance – certainly the acceptable substantial compliance, with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than “strict” or “exact” compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, consequently, is proceeding to readjudicating these claims – including considering all additional evidence received or otherwise obtained since the vacating of the Board’s prior decision.   DIC Benefits 1. Entitlement to DIC benefits under the provisions of 38 U.S.C. § 1151 for the cause of the Veteran's death Where a veteran suffers an injury or aggravation of an injury as a result of VA medical treatment and the injury or aggravation results in death, then compensation, including DIC, shall be awarded in the same manner as if the death was service connected. 38 U.S.C. § 1151. This statute provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran’s willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.§ 1151. See also 38 C.F.R. § 3.361. Under these provisions, the additional disability or death due to hospital care, medical or surgical treatment, examination, or training and rehabilitation services requires actual causation. The additional disability cannot be the result of the continuance of or the natural progress of a disease or injury unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progression. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the medical treatment upon which the claim is based to his condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1).   The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a Veteran’s additional disability, it must be shown that the medical treatment caused the Veteran’s additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA 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) & (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). The appellant-widow contends that the Veteran’s death was caused by VA’s guidance that he should stop taking his hypertension medication. She contends that he died of a cardiac-related event that can be traced back to a spike in his high blood pressure. However, after again considering the medical and lay evidence of record, the Board again finds that the preponderance of this evidence is against this claim. First, the VA treatment records are inconsistent with the appellant’s claim that VA counseled the Veteran to stop taking his hypertension medication following the removal of a thyroid nodule. Rather, the VA treatment records show he underwent surgery at a private facility, specifically UAB, sometime in late 2008 to remove a thyroid nodule and that UAB also counseled him regarding his hypertension medication. Prior to the surgery, he had undergone testing at a VA facility, and it had revealed he had a benign ‘cold’ thyroid nodule. Following the excision of this nodule at UAB, he reported to VA that his blood pressure had been normal since the surgery and that he was no longer taking blood pressure medication. In December 2008, he again reported that he had been told to stay off his blood pressure medication on a follow-up visit. At that time, his VA physician noted that the treatment records from UAB were not available for review. These VA records do not show that VA had counseled him to stop taking his blood pressure medication. The October 2018 VA examiner, after reviewing the claims file, concluded the same. In January 2015, the RO requested that the appellant-widow provide authorization to release records from UAB, but she did not provide that authorization. Moreover, partly owing to insufficient efforts to obtain these UAB records, so pursuant to the Board’s September 2020 remand directive, both VA and the appellant-widow, herself, attempted to obtain these records from UAB. However, both she and VA were informed by UAB that records for the Veteran do not exist. In November 2020, VA therefore made a formal finding that these treatment records from UAB do not exist. The appellant-widow is well-aware of this, especially since she was informed of this directly by UAB. Even more significantly, however, the evidence does not tend to show the Veteran’s death was related to his discontinuation of his hypertension medication. On October 2018 VA examination, the examiner concluded the Veteran’s death was not the result of carelessness, negligence, lack of proper skill, or error of judgment on the part of VA. This examiner also concluded that it was less likely than not that the Veteran’s hypertension led to his death. This examiner explained that the VA treatment records dated in the months leading up to the Veteran’s death did not show any acute or concerning health conditions. His blood pressure reading had been 128/87 in October 2009, two months prior to his death. The examiner also noted the Veteran’s cause of death was cardiopulmonary arrest. His death certificate stated that the cause of his cardiopulmonary arrest was unknown. It was clear that he suffered from an abrupt and sudden death.   In December 2020, VA obtained an addendum opinion pursuant to the Board’s September 2020 remand directive. This December 2020 examiner indicated it is less likely than not the Veteran’s hypertension was principal or contributory to his cause of death. The rationale was that there is no evidence supporting this contention. The examiner noted that, while uncontrolled hypertension can increase the risk of death from heart attack or stroke, there is no evidence that the Veteran had uncontrolled hypertension at or near the time of his death. In fact, the evidence shows that his blood pressure was normal, and he was off of any blood pressure medication for a year prior to his death. Further, the examiner noted that the medical evidence of record does not support that the Veteran ever had severe or uncontrolled hypertension, as his blood pressure was controlled with one to two medications, and then no medication in his last year of life. The normalization of his blood pressure was likely due to weight loss. Based on their review of the evidence, the VA examiners have found no indication that the Veteran’s death was due to VA negligence or lack of reasonable care. There is no indication that VA had advised him to discontinue his hypertension medication or that VA should have advised him to continue that medication. In fact, VA treatment records based on his own reports support that UAB, his private provider, had counseled him regarding his hypertension medication. There also is no indication his hypertension led to his death. The Board finds the VA treatment records to be highly persuasive because statements recorded in VA treatment records were made in furtherance of medical treatment, in contrast to statements made for purposes of obtaining disability benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. For these reasons and bases, the Board finds that the most competent and credible, i.e., most probative and therefore most persuasive evidence weighs heavily against the appellant’s contentions. For one, there does not appear to be an additional disability caused by care provided by VA. In this regard, the October 2018 VA examiner found it less likely than not that treatment by VA had caused the Veteran’s death. The additional (addendum) medical opinion more recently obtained in December 2020, on remand, also declined to find any culpability in the VA medical care the Veteran received. Moreover, the issue at hand is one that necessitates medical knowledge and expertise, and thus the Board affords the appellant’s contentions less probative weight than the October 2018 and December 2020 VA medical opinions. See 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). Finally, the appellant-widow also contends that the Veteran had elevated creatine phosphokinase (CPK) laboratory readings prior to his death, and that it should have been addressed by VA as cardiac in origin. But the basis of this contention is unclear, as the treatment records show these abnormal laboratory findings were considered related to his knee disability. In June 2009, his elevated CPK results led to a referral to physiatry and neurology. These records do not suggest that the elevated reading was cardiac in origin or related to or in any way precipitating his cause of death. Accordingly, as the elements necessary for a claim to prevail under the provisions of 38 U.S.C. § 1151 are not met, the Board finds that this claim must be denied.   Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 2. Entitlement to service connection for hypertension, for accrued benefits purposes The appellant contends that the Veteran’s hypertension began during his active military service. As already alluded to, the Veteran served in the National Guard for many years of his service (meaning in addition to the time he was on active duty (AD)). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes any period of active duty for training (ACDUTRA) in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty training (INACDUTRA) during which the individual was disabled by an injury, but not also disease, which was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6. Service connection on a presumptive basis is not warranted for periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). Accordingly, the chronic disease presumptive provisions of 38 U.S.C. §§ 1112 and 1137 and 38 C.F.R. § 3.309 do not apply to the deceased Veteran’s claims, at least to the extent they are predicated on his ACDUTRA and even INACDUTRA service, only instead to the time he was on AD. The STRs reflect that the Veteran had elevated blood pressure readings while serving in the National Guard. Specifically, in September 2004, he was noted to have elevated blood pressure readings for the previous two years. However, these records do not reflect that he had elevated blood pressure readings or hypertension (i.e., persistently elevated blood pressure) due to an event that had occurred in the line of duty while performing ACDUTRA, and since a disease, his time on INACDUTRA is inapplicable. The evidence additionally does not reflect that his hypertension was due to acute myocardial infarction (heart attack), cardiac arrest, or cerebrovascular accident (stroke) occurring during a period of ACDUTRA or INACDUTRA. The record as well does not otherwise contain a medical opinion relating his hypertension to the above periods of service. Instead, the medical evidence tends to refute any such notion. The December 2020 VA examiner, on remand, opined that the Veteran’s hypertension was less likely than not incurred in or aggravated by his active service. The rationale was that the medical evidence of record shows that he had an elevated blood pressure starting in 2001, 19 years after his period of active service. Further, at a September 2004 examination, he reported that he was told two years prior that he had an elevated blood pressure, but even though his blood pressure was elevated, it was not persistent or high enough to warrant medication as treatment of hypertension. In a December 2020 written statement, the appellant contends that she believes that the Veteran’s service-connected right knee degenerative osteoarthritis contributed to his high blood pressure, as it prevented him from working out. However, the Board notes that the Veteran was awarded service connection for his right knee disability in 2005, while his elevated blood pressure was first noted around 2001. Additionally, the December 2020 VA examiner pointed out that the Veteran was off his blood pressure medicine for the year prior to his death, which was more likely than not related to weight loss. This VA examiner pointed out the Veteran had lost weight in the years preceding his death and, as such, the appellant’s claim that the Veteran’s right knee osteoarthritis prevented him from physical activity and, therefore, worsened his blood pressure is not supported by the medical evidence of record. For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for hypertension. The Veteran’s hypertension was not incurred or aggravated by any period of active military service, whether AD, ACDUTRA or INACDUTRA within the meaning of the law. Hypertension also did not manifest to a compensable degree within one year of his AD service (keeping in mind this presumptive period does not apply additionally to his subsequent service on ACDUTRA and INACDUTRA). Therefore, the claim for service connection for accrued benefits purposes must be denied. 3. Entitlement to service connection for OSA, for accrued benefits purposes Although the Veteran had a diagnosis of sleep apnea at the time of his death, the preponderance of the evidence is against this claim for service connection for this condition. Specifically, the STRs from his active service do not reflect any symptoms related to disrupted sleep or fatigue, nor do they contain a diagnosis of sleep apnea. Rather, the Veteran was diagnosed with sleep apnea many decades following his separation from active service (meaning AD not instead ACDUTRA and INACDUTRA). Treatment records dated during the Veteran’s National Guard service do not reflect that he received a diagnosis of sleep apnea in the line of duty while serving during an ACDUTRA period or as due to an injury while serving during an INACDUTRA period. Additionally, there is no indication of a medical correlation (“nexus”) between his sleep apnea and active service. To the contrary, the October 2018 VA examiner opined that the Veteran’s sleep apnea was less likely than not related to his active service. Accordingly, as the weight of the competent medical evidence is against this claim for service connection and outweighs the contention that sleep apnea began during active service, this claim must be denied. Determining the origins of sleep apnea is not simple, rather, complex, so supporting medical evidence is required, not just mere lay opinion. See 38 C.F.R. § 3.159(a)(1) and (a)(2).   When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also King, supra. As such, the Board finds that entitlement to service connection for OSA for accrued benefits purposes is not warranted. 4. Entitlement to service connection for the cause of the Veteran's death The death of a Veteran will be service connected if the evidence shows that a disability incurred in or aggravated by active military service was either the principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In determining whether a 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. 38 C.F.R. § 3.312(c)(1). At the time of his death, the Veteran was service connected only for degenerative osteoarthritis of his right knee. The appellant’s primary contention is that the Veteran’s hypertension was mismanaged by VA and that it resultantly caused or contributed to his death. However, the Veteran was not in receipt of service connection for hypertension, as already discussed. Moreover, as was explained by the October 2018 and December 2020 VA examiners, it is less likely than not that hypertension caused or contributed substantially or materially to the Veteran’s death. Most recently, the December 2020 VA examiner opined that it is less likely than not that the Veteran’s hypertension was a principal or contributory cause of death. The examiner explained that the cause of the Veteran’s death is unknown (cardiopulmonary arrest due to unknown etiology), and that, although uncontrolled hypertension can increase risk of death from heart attack or stroke, there is no evidence showing that the Veteran had uncontrolled hypertension at or near the time of his death. The appellant-widow has made an alternative contention that the Veteran’s service-connected right knee disability contributed to elevated creatine phosphokinase (CPK) levels – which, in turn, led to his death. However, as concerning the Veteran’s service-connected right knee disability, the December 2020 examiner opined that it is less likely than not that it caused or contributed to his death through elevated CPK levels and subsequent cardiac arrest. The rationale was that there is no evidence that his chronically elevated CPK levels were related “in any way” to his cardiac arrest and subsequent death. The examiner explained that elevated CPK levels occur as a consequence of some type of muscle injury or trauma, including cardio-pulmonary rescucitation (CPR) at the time of a cardiac arrest. Elevated CPK does not cause or contribute to a cardiac arrest or death. The examiner further explained that the Veteran’s right knee disability would not cause elevated CPK levels as CPK is a muscle enzyme that is released with muscle injury, not with knee ligament or knee-joint bony arthritis injury. His types of knee injury, surgery, and consequent residuals are not of the types that would cause persistently elevated CPK levels. The December 2020 examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation containing clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant believes that a disability incurred in or aggravated by active military service was either the principal or a contributory cause of death. However, she is not competent to provide a probative nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple body systems, here, the Veteran’s service-connected right knee and his cardiopulmonary system, and pathology. Therefore, it is outside the competence of   the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 VA examiner’s opinion. There lastly is no indication the Veteran’s cause of death, cardiopulmonary arrest due to unknown causes, was related or owing to his military service. Accordingly, absent evidence that a service-connected disability caused or contributed substantially or materially to his death, this claim of entitlement to service connection for his cause of death must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.