Citation Nr: 21062595 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-51 793 DATE: October 8, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 2013; his death certificate listed acute respiratory failure as the primary cause of death due to obstructive sleep apnea, hypercapnia, and hypoxia. Morbid obesity and congestive heart failure were noted as contributory causes of death. 2. At the time of the Veteran's death, he was not service-connected for acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, or congestive heart failure. CONCLUSION OF LAW The criteria for Service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1949 to December 1952. He passed away in October 2013. The appellant is his surviving spouse. The matter is on appeal before the Board from a May 2014 rating decision. The appellant provided testimony at a Board hearing in January 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded the issue in February 2021 for further development. The development is completed, and the issue has returned to the Board for further adjudication. The Board notes that at the January 2021 Board hearing, the appellant's representative challenged the competency of the VA examiner that provided a VA medical opinion in August 2016 pertaining to the Veteran's cause of death. That is, the representative questioned the type of physician that was rendering the opinion. Was the physician a pediatrician, a cardiologist, a neurologist, or some other type of physician? As such, the Board remanded the issue in February 2021 to provide the appellant and her representative with copies of the VA examiner's curriculum vitae and any other available credentialing documents for the VA examiner who provided a VA medical opinion pertaining to the Veteran's cause of death in August 2016. A July 2021 letter reflects that a copy of the VA examiner's curriculum vitae was associated with the Veteran's record, as well as being provided to the appellant and her representative. Since the letter, no challenges to the VA examiner's competency have been raised by either the appellant or her representative. The initial challenge raised by the appellant's representative is a general challenge to the VA examiner's competency and not a specific challenge. The United States Court of Appeals for the Federal Circuit has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); see also Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the appellant nor her representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiner who provided the August 2016 VA medical opinion. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway, supra. Service Connection for Cause of Death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability was incurred in or aggravated by service, and either caused or contributed substantially or materially to cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related to the cause of death. 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; 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. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). The appellant asserts that the Veteran's cause of death is related to his military service. At the January 2021 Board hearing she postulated that the Veteran's service-connected issues of peripheral vascular disease and peripheral neuropathies due to cold exposure contributed to the Veteran's death. She explained that due to the Veteran's frost bite injuries he became less active throughout his life, which in turn led to his declining health. Due to his feet and legs, he became bound to a walker, which caused many other issues, to include severe obesity. The Veteran died in October 2013. His death certificate lists acute respiratory failure as the primary cause of death due to obstructive sleep apnea, hypercapnia, and hypoxia. Morbid obesity and congestive heart failure were noted as contributory causes of death. At the time of the Veteran's death, he was service-connected for peripheral vascular disease of both the right and left lower extremities, residuals of cold injury to both the right and left feet, residuals of cold injury to both the right and left hands, peripheral neuropathy of both the right and left lower extremities, peripheral neuropathy of both the right and left upper extremities, tinnitus, and bilateral hearing loss. The Veteran was not service-connected for any other disabilities, to include acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, or congestive heart failure. A review of the Veteran's service treatment records (STRs) does not reflect any diagnoses, complaints, or treatments for acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, or congestive heart failure. Additionally, his post-service medical treatment records do not show any diagnoses, complaints, or treatments for any of these disorders until just before the Veteran's death, which is almost 61 years after he separated from active military service. Following the Veteran's death, a VA medical opinion was obtained in February 2014, in which the VA examiner found that the Veteran's death was not caused by his service-connected disabilities. The examiner reported that none of the conditions of acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, or congestive heart failure were caused by or significantly attributed to by the Veteran's service-connected disabilities. The examiner reasoned that it was most likely that the Veteran's acute respiratory failure and death was from sleep apnea, as no other acute respiratory illness was mentioned on the Veteran's death certificate. An additional VA medical opinion was rendered in May 2014, in which the VA examiner explained that they could not find any medical connection at all between the Veteran's service-connected disabilities and the respiratory failure and complications that led to his demise. Therefore, the examiner found that it was less likely than not that the Veteran's service-connected conditions caused or materially or substantially contributed to his death. In August 2014, the appellant submitted a private medical opinion dated June 2014, from the Veteran's primary care provider. The physician reported that the Veteran had well documented arteriosclerotic disease, which was documented by multiple examinations of his lower extremities and several catheterizations of the heart showing atherosclerosis significant enough to require stenting. The physician explained that arteriosclerotic disease can, indeed, contribute to congestive heart failure and other heart problems, which could have contributed to the Veteran's demise. The disease is certainly not limited to the lower extremities. Likewise, the Veteran's neuropathy may well not be limited simply to his lower extremities, and could involve basically multiple nerves and may be asymptomatic in other organ systems including kidneys, heart, etc. Depending on which nerve is affected, even though it may be asymptomatic, it certainly is feasible that he could have had neuropathies involving major organs. It would be difficult to delineate or prove which organ or organs may have been involved, but indeed it could have contributed to his eventual demise. Another VA medical opinion was obtained in August 2016, which took into account additional medical records and the private medical opinion from the Veteran's primary care provider. The VA examiner found the findings from the May 2014 VA opinion to remain unchanged. The examiner explained that they could not identify any peripheral nerves that would have affected the Veteran's lungs and lead to respiratory failure, as was alluded to in the opinion from the Veteran's primary care provider. Therefore, it is less likely than not that the Veteran's peripheral nerves were related to his death from respiratory failure, obstructive sleep apnea, hypercapnia, and hypoxia. No medical relations to any of the Veteran's other service-connected disabilities or their treatment were identified. Therefore, it is less likely than not that the Veteran's other service-connected disabilities caused or substantially or materially contributed to his death. Thus, the examiner also opined that it was less likely than not that the Veteran's service-connected disabilities resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury primarily causing his death. In addition, the examiner noted that the Veteran's STRs did not reveal any diagnosis that would have at least as likely as not contributed substantially to the Veteran's death. The Veteran's exit physical exam in 1952 showed him to be a healthy young individual with a negative chest x-ray. In October 2014, and July 2017 statements, as well as her testimony provided at the Board hearing in January 2021, the appellant alleged that the Veteran's service-connected peripheral vascular disease limited the blood flow to his heart causing heart disease, which in turn lead to chronic heart failure. Additionally, his peripheral vascular disease purportedly limited the blood flow to his lungs, which caused the acute respiratory failure leading to his death. The appellant also asserts that medical evidence and research shows a linkage between peripheral neuropathy and organ failure, to include difficulty in breathing. To support her contentions, she submitted treatises pertaining to peripheral vascular disease and peripheral neuropathies in November 2013. Thus, the appellant concludes that the Veteran's cold injuries, peripheral neuropathy, and vascular disease prevented him from moving around, let alone exercising; eventually confining him to a wheelchair, and leading to the obesity that contributed to his death. The Board acknowledges the appellant's lay statements, along with her sincere belief that the Veteran died of a service-related condition. However, the appellant, as a lay person without specialized training, knowledge, or experience, has not been shown to possess the requisite expertise to render etiological opinions concerning complex medical questions such as the etiology of acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, and congestive heart failure. See Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2001). Based upon the foregoing, the evidence does not show that the Veteran's acute respiratory failure, obstructive sleep apnea, hypercapnia, hypoxia, morbid obesity, or congestive heart failure were incurred in or caused by his active military service. Nor does it show that any of the aforementioned disabilities manifested to a compensable degree within one year of the Veteran's discharge from active military service. While the Veteran's primary care provider alluded to the possibility that the Veteran's peripheral vascular disease and peripheral neuropathies could have contributed to the Veteran's eventual demise, could does not reach a high enough standard. Additionally, the VA medical opinion rendered in August 2016, specifically noted that it took into account the opinion from the Veteran's primary care provider, but explained why it was less likely than not that any of the Veteran's service-connected disabilities caused or substantially or materially contributed to his death. The VA medical opinions, and in particular the August 2016 medical opinion, outweigh the opinion from the Veteran's primary care provider. The primary care providers opinion is based upon the use of could, which is found to be inherently speculative, and below a finding of at least as likely as not (50 percent or greater probability). Thus, does not reach an appropriate standard, as it does not show that it is at least as likely as not (50 percent or greater probability) any of the Veteran's service-connected disabilities contributed substantially or materially to death; combined to cause death; or aided or lent assistance to the production of death. Accordingly, the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, Associate 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.