Citation Nr: 21003619 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-52 001 DATE: January 22, 2021 ORDER Entitlement to service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The record reflects that the Veteran died in April 2012. 2. The Veteran’s death certificate lists the immediate causes of death as severe respiratory acidosis, respiratory failure, and metabolic encephalopathy of unknown etiology. 3. At the time of his death, the Veteran did not have any service-connected disabilities. 4. The disability that caused the Veteran’s death was not related to his military service. 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 (2012); 38 C.F.R. § 3.312 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1951 to June 1954. He died in April 2012 and the appellant is his surviving spouse. This claim was previously before the Board in May 2020, at which time it was remanded for additional development Entitlement to service connection for the cause of the Veteran’s death The appellant seeks Dependency and Indemnity Compensation (DIC) benefits. Such benefits are payable to the surviving spouse, child, or parents of a veteran if he or she died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. To establish service connection for the cause of the veteran’s death, the service-connected disability must be either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). A disability is the principal cause of death if it was the immediate or underlying cause of death or was etiologically related to the death. 38 C.F.R. § 3.312 (b). A disability is a contributory cause of death if it contributed substantially or materially to the cause of death, combined to cause death, aided, or lent assistance to producing death, for example when a causal (not just a casual) connection is shown. 38 C.F.R. § 3.312 (c). In order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran’s death certificate indicates that he passed away in April 2012, and that the immediate causes of death were severe respiratory acidosis, respiratory failure, and metabolic encephalopathy of unknown etiology and the secondary causes of death were chronic obstructive pulmonary disease, asbestosis, coronary artery disease, and chronic renal insufficiency. Private treatment records show that in March 2012 the Veteran underwent a CT chest angiography. Although it was noted to be a suboptimal study, the impression was emphysema with left lower lobe airspace disease consistent with pneumonia. There was noted to be prior asbestos exposure with a heavy burden of calcific pleural plaques. The Veteran had another CT study of the lungs on April 17, 2012. It showed areas of pleural thickening with pleural calcification suggesting previous asbestos exposure, emphysematous changes, infiltrates in the lower lungs for which pneumonia was not excluded, fluid with some bilateral lower lobe bronchi, and a tiny nodular density in the right upper lung. The clinical history was noted to be altered mental state, and the past medical history noted asbestos pleural disease without evidence of parenchymal asbestosis. Based on an examination of the Veteran, the physician found multifactorial deterioration with severe metabolic encephalopathy and acute on chronic respiratory failure with predominantly acute respiratory acidosis. He was “most suspicious of [a] neurologic event.” In February 2017 a VA examiner reviewed the record and opined that it is less likely than not that the Veteran’s military service and in-service asbestos exposure substantially or materially contributed to death, combined to cause death, or aided or lent assistance to the production of death. It was noted that medical records show that the Veteran died from acute respiratory failure secondary to a metabolic encephalopathy of unknown etiology. The illness was not a known complication of asbestosis or asbestos exposure and is not predisposed from prior asbestos exposure. Even though the CT scan showed evidence of pleural calcifications and thickening/plaques suggestive of past asbestos exposure, there is no evidence that this incidentally diagnosed and asymptomatic condition was causing any respiratory insufficiency prior to death or played any role in causing or hastening death. Following the May 2020 Board remand, and after reviewing magnetic resonance imaging from March 2012 and CT scans from April 2012, a July 2020 VA examiner concluded that pleural plaques were benign manifestations of prior asbestos exposure. The body of the record was found to contain no evidence that the Veteran had respiratory dysfunction from asbestos exposure such as restrictive lung disease on pulmonary tests or interstitial lung disease on chest imaging. Instead, the records showed that the Veteran was admitted for mental status changes, over-anticoagulation, GI bleed, and hypoxia. Based on the above, the examiner determined that there was insufficient evidence to show that it is at least as likely as not that the Veteran’s death was directly or proximately related to service, to include exposure to asbestos. Following the recent of additional private treatment records dated in April 2012, a VA medical opinion was submitted in November 2020 and the same physician who provided the July 2020 opinion opined that it was less likely than not that the Veteran’s death was directly or proximately related to his military service, to include exposure to asbestos. There was evidence of pleural plaques on chest imaging, but these were benign manifestations of prior asbestos exposure. Furthermore, there was no evidence that the Veteran had asbestosis or other respiratory dysfunction from asbestos exposure. The November 2020 physician further noted that the April 2012 physician who performed multiple evaluations prior to the Veteran’s death reported that the Veteran was “without evidence” of asbestosis. He also determined at that time that some type of brain event was most likely the cause of the Veteran’s death. There is no competent medical opinion of record that disputes the opinions of the November 2020 VA examiner. Upon careful and compassionate review of the evidence of record, the Board finds that the appellant is not entitled to service connection for the cause of the Veteran’s death. There is no evidence that any of the causes of death were present until many years after service, and the record does not include any competent evidence that a cause of the Veteran’s death was incurred in or is otherwise related to service. Instead, the competent, credible medical opinion found that there was no link between the severe respiratory acidosis, respiratory failure, or metabolic encephalopathy and service, including the conceded asbestos exposure. Furthermore, the record is absent any competent lay evidence of such a link. There is no history that the Veteran exhibited symptoms associated with the severe respiratory acidosis, respiratory failure, or metabolic encephalopathy during or since service. In summary, the preponderance of the most competent and persuasive evidence is unfortunately against a finding that the cause of death was incurred in or related to his military service. In light of the above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for cause of death, and there is no doubt to be otherwise resolved. As such, the appeal is denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.