Citation Nr: 21065062 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 18-34 600 DATE: October 23, 2021 ORDER Entitlement to service connection for cause of death is denied. FINDINGS OF FACT 1. The cause of death for the Veteran was Acute Toxic Metabolic Encephalopathy with Failure to Thrive. 2. A service-connected disability was not the immediate or underlying cause of the Veteran's death, and a service-connected disability was not etiologically related to the cause of the Veteran's death. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.312, 4.124a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1952 to September 1955 as a Steward. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Appellant appeared before the undersigned Veterans Law Judge at a May 2020 Board videoconference hearing. Unfortunately, "audio malfunctions" prevented the production of a complete transcript. See November 2019 VA Hearing-Related Correspondence. When presented with the opportunity to appear at an additional hearing, the Appellant waived her right to do so. See November 2020 VA Form 27-0820, Report of General Information, and December 2020 Appellant Hearing-Related Correspondence. The matter was remanded in January 2021 to "[d]etermine whether the appellant is eligible to substitute for the Veteran... [a]sk the appellant to clarify / provide any further information concerning the Veteran's duties during his active period of service...arrange for a VA medical opinion." See January 2021 BVA Decision. The matter was remanded again in April 2021 to "obtain any private treatment records...obtain an addendum [medical] opinion." See April 2021 BVA Decision. The matter is returned to the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for the Veteran's cause of death The Appellant contends that the Veteran was involved in ship maintenance that included "scraping, abrasive blasting and repainting of the ships' upper hulls to prevent corrosion" as a steward at the U.S. Naval Postgraduate School in Monterrey, California. See August 2020 Appellant Correspondence. Duty to Assist With respect to the appellant's claim, she has not alleged that VA did not fulfill its duty to notify or assist in the development of her claim. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). See also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Proper VCAA notice must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1). In a claim for DIC, which includes a claim for service connection for the cause of the Veteran's death, section 5103(a) notice should include: (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). VA has fulfilled its duty to assist by making reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim. Under 38 U.S.C. § 5103A(d)(1), a medical examination is required when such examination or opinion is necessary to make a decision on the claim. The Federal Circuit determined that the applicability of this provision is limited to claims for disability compensation. See DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). An examination or opinion is not required when no reasonable possibility exists that such development would aid in substantiating the claim. See 38 U.S.C. § 5103A(a). The entire record was available to the March and June 2021 medical examiners, the appropriate examinations were performed, and the examinations were sufficient to adequately address all requested issue criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.124a. Any defects identified in the March 2021 examination were cured by the June 2021 examination. See April 2021 BVA Decision. The RO's efforts have substantially complied with the instructions contained in the January and April 2021 Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. 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). To establish service connection for the cause of the Veteran's death, the evidence must show that the disability that was incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to cause death, it must singly, or with some other condition, be the immediate or underlying cause, or it must be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the Veteran's death should have been service connected. To establish service connection for a disability that caused a Veteran's death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In cases seeking service connection for a disorder, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Further, service connection may also 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 U.S.C. § 1113(b) (2014); 38 C.F.R. § 3.303(d) (2016). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If at least one of the diseases deemed chronic for VA purposes becomes manifest to a degree of 10 percent or more during the one-year period immediately following a veteran's separation from service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Analysis In the present appeal, the Veteran passed away in August 2017, and his death certificate lists the cause of death as "Acute Toxic Metabolic Encephalopathy with Failure to Thrive." See August 2017 State of Tennessee Certificate of Death. Prior to his death, service connection had not been established for any disabilities, nor did he have any pending disability claims before VA. See August 2017 VA Rating Decision Codesheet. Service treatment records for the Veteran do not reflect any complaints of, treatment for, or a diagnosis concerning a nervous system, cerebrovascular, or other disorder of the brain. A September 1955 clinical medical evaluation at separation was "Normal." See September 1955 Report of Medical Examination. Records from a hospitalization in 2016 were obtained per Board remand and show that the Veteran was hospitalized in December 2015 as unresponsive. Following a discussion with the Veteran's spouse, the examiner reported that dementia was of about one year duration and that this was his main medical problem. The Appellant provided a June 2020 statement from a physician with the following: "Patient exposed to numerous chemicals during service, while not causative, would increase risk of dementia." See June 2020 Medical Opinion Letter. The statements contained in the June 2020 Medical Opinion Letter are not confirmed by contemporary, objective medical evidence. See Curry v. Brown, 7 Vet. App. 59 (1994). The Board finds the June 2020 Medical Opinion Letter to be of limited credibility and little probative value. There is no indication that the physician who provided the statement ever treated the Veteran, interviewed the Veteran, or reviewed the Veteran's claim file, service treatment records, or post-service treatment records. There is no supporting data for the statement, "Patient exposed to numerous chemicals during service," clear and reasoned analysis of "chemicals" used by the Veteran during service, or detailed rationale for the statement that "chemicals...would increase risk of dementia," sources of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Pursuant to the January 2021 Board remand, the Appellant was provided with a VA medical opinion in March 2021. The claims file and evidence of record was reviewed in preparation for the examining physician's published report. The examining physician offered the following opinion regarding encephalopathy: "Based on review of body of evidence and relevant medical literature, and in accordance with accepted medical principles, it is my professional opinion that it is less likely than not that the Veteran's acute toxic metabolic encephalopathy had its onset in service, was incurred in service, or was otherwise related to the Veteran's active service, to include any potential exposure to cleaning products / industrial solvents." In arriving at his opinion, the physician offered the following rationale: "It would be highly improbable that any in-service exposure to cleaning products / industrial solvents would play any role in an acute encephalopathy that occurred over 60 years after his separation from service. This is further supported by notation by Veteran's widow that he worked for 18 years after service as a porter and a graphics illustrator. Any long-term exposure would more likely than not preclude the Veteran from working as a graphics illustrator or a teacher." See March 2021 VA Medical examination report. Regarding dementia, the March 2021 examining physician offered the following opinion: "Based on review of body of evidence and relevant medical literature, and in accordance with accepted medical principles, it is my professional opinion that is it less likely than not that Veteran's dementia had its onset in service, was incurred in service, or was otherwise related to service, to include any potential exposure to cleaning products / industrial solvents." In formulating his opinion, the physician stated the following: "1) Service treatment records show no evidence of this Veteran having any signs or symptoms or dementia or symptoms related to cleaning products / industrial solvents. Assume the Veteran was exposed to industrial solvents during active service, as asserted; these effects did not prevent him from working for decades after separation from service, including working as a teacher. Were he to have suffered dementia as a result of prolonged exposure to cleaning products / industrial solvents, such adverse effects would more likely than not have precluded him from working after service in the jobs he held." See March 2021 VA Medical examination report. The March 2021 physician continued: "2) Treatment records indicate that this Veteran had vascular dementia, which is due to hypertension, hyperlipidemia, age, low BMI, and a smoking history, all of which this Veteran had. 3) The private medical opinion provided no references supporting the opinion of numerous chemical exposures during service, increasing the Veteran's risk of dementia. Solvent and cleaning exposures can lead to acute toxicity. Epidemiologic studies have also shown statistically significant increases in neurobehavioral effects in workers chronically exposed to organic solvents. These effects include disorders characterized by reversible subjective symptoms (fatigability, irritability, and memory impairment), sustained changes in personality or mood (emotional instability and diminished impulse control and motivation), and impaired intellectual function (decreased concentration ability, memory, and learning ability). Among organic solvent abusers, the most severe disorders reported are characterized by irreversible deterioration in intellect and memory (dementia), accompanied by structural CNS damage. There is no evidence of this Veteran among organic solvent abuser[s]. The body of evidence supports that this Veteran was able to successfully work for many years after service, with no indication in treatment records of early onset dementia or adverse mental effects from his service or post-service occupational exposures to cleaning products / industrial solvents." See March 2021 VA Medical examination report. In addition, the March 2021 physician stated: "4) The submitted website articles were reviewed. The notation of exposure to solvents such as Benzene and Toluene correlating with an increased risk of Alzheimer's disease and an article noting that Benzene may be found in cleaning products and paint strippers is not pertinent to this Veteran, as he did not have Alzheimer's dementia. He is noted to have [had] vascular dementia. Even if the Veteran had Alzheimer's dementia, the risk factors for Alzheimer's are similar to those for vascular dementia, being hypertension in midlife, which the Veteran had, along with elevated lipids. References: 1. Etiology, clinical manifestations, and diagnosis of vascular dementia. UpToDate. 2021. 2. Organic Solvent Neurotoxicity. Current Intelligence Bulletin 48. 1987. The National Institute for Occupational Safety and Health (NIOSH). 3. Epidemiology, pathology, and pathogenesis of Alzheimer disease. UpToDate. 2021." See March 2021 VA Medical examination report. Pursuant to the April 2021 Board remand, the Veteran was provided with an additional VA medical examination in June 2021. The claims file and evidence of record was reviewed in preparation for the examining physician's published report, to include "statements in support of claims and all supporting medical literature submitted by appellant, including a review of the Navy Training Course e[B]ook entitled 'Stewardsman' from the Bureau of Naval Personnel, NAVPERS 1965 regarding the duties and exposures associated with Veteran's service as a Stewardsman. The referenced Stewardsman e[B]ook discusses the duties of a Stewardsman involving taking charge of officers' quarters and tasks involved in preparation and serving of officers' meals. Duties included cleaning floors, use of cleaning fluid to get grease out of clothing, and the submitted notation from the e[B]ook that 'all water cleaning compounds and dirt should be removed and the floor rinsed with clear water, using a clean mop. Use fine steel wool or a rag moistened with paint thinner to remove stubborn grease and dirt.'" See June 2021 VA Medical examination report. Regarding direct causation, the June 2021 examining physician concluded: "It is less likely than not that the Veteran's acute toxic metabolic encephalopathy had its onset in service, was incurred in service, or was otherwise related to the Veteran's active service, to include any potential exposure to cleaning products / industrial solvents / paint thinners and oil-based paints." In arriving at his opinion, the examining physician stated: "1) After separation from service, Veteran worked as a teacher. There is no evidence of this Veteran having dementia prior to 2014. The [December 2016] admit for toxic encephalopathy yielded no clear explanation for his acute encephalopathy and also noted Veteran had a background of dementia that developed about 1 year prior to his [December 2016] admission. The evaluation did note that CT and MRI showed prior strokes, evidence of small vessel white matter disease and associated cerebral atrophy. 2) It is more likely than not that the small vessel disease and prior strokes were the result of his smoking, HTN, hyperlipidemia and age. It would be highly improbable that any in-service exposure to cleaning products, industrial solvents, paint thinners and oil-based paints would play any role in an acute encephalopathy, dementia or small vessel cerebral disease that occurred over 60 years after his separation from service. 3) Dementia is a well-recognized sequalae of small vessel cerebral disease, referred to a vascular dementia. A cause of Veteran's acute toxic encephalopathy in the background of baseline dementia in [December 2016] was never determined. He had intact renal function, normal ammonia level and no anemia. Veteran had known causative risk factors for stroke and small vessel white matter disease, including hypertension, hyperlipidemia, smoking and his age. Aside from clinical stroke, cerebral small vessel diseases play an outsized role in the burden of vascular dementia. Reference: Etiology, clinical manifestations, and diagnosis of vascular dementia. UpToDate. 2021. See June 2021 VA Medical examination report. Regarding proximate or secondary causation, the June 2021 examining physician concluded: "It is less likely as not that the Veteran's dementia had its onset in service, was incurred in service, or was otherwise related to service, to include any potential exposure to cleaning products / industrial solvents / paint thinners and oil-based paints. In reaching his conclusion, the examining physician stated, "1) There is no evidence that any in-service exposures to cleaning products / industrial solvents / paint thinners, oil-based paints played any role in the Veteran's development of dementia or his acute toxic encephalopathy. 2) Body of evidence shows that this Veteran developed dementia as a result of prior strokes and small vessel cerebral white matter disease, and that these conditions occurred due to his non-service-related conditions of hypertension, hyperlipidemia, smoking and his age and were unrelated to any in-service exposures." See June 2021 VA Medical examination report. Neither Acute Toxic Metabolic Encephalopathy nor Vascular Dementia are included as a chronic disease under 38 C.F.R. § 3.309(a). Continuity of symptomatology is required under 38 C.F.R. § 3.303(b), "where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned." Symptoms of a nervous system, cerebrovascular, or other disorder of the brain were not documented until 2015, approximately 60 years after service. See December 2016 Parkridge Hospital Discharge Summary ("The patient was felt to have dementia based on discussion with wife, onset approximately 1 year prior."). Despite the assertions of the Appellant regarding the Veteran's involvement in "ship maintenance," the Veteran does not meet the requirements for presumptive service connection, either by diagnosis in service or within the prescribed time limits after service, namely the lack of diagnosis of a nervous system, cerebrovascular, or other disorder of the brain, or through continuity of symptomatology, evidenced by a near 60 year period without signs or symptoms of a cerebral condition, raising a legitimate question of chronicity. Therefore, he is not entitled to the presumption of an in-service incurrence, aggravation in service, or nexus to service. See 38 C.F.R. §§ 3.303, 3.307, and 3.309. Conclusion A preponderance of the most probative evidence is against a finding that the Veteran's death should have been service connected. The Board has considered the June 2020 Medical Opinion Letter submitted by the Appellant. However, the Board assigns more probative weight to the contemporaneous medical evidence, including service treatment records and service medical examinations, which are negative for a cerebral disorder in service, and post-service treatment records, which document the onset of Vascular Dementia in 2015 and Acute Toxic Metabolic Encephalopathy in 2016. The evidence of record does not demonstrate a causal relationship between the Veteran's cause of death and his military service. In addition, the Veteran is not entitled to the presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309. The Board acknowledges the Appellant's lay assertions that she believes the Veteran's cause of death to be related to his service. The Appellant is not shown to have medical expertise or medical training. See 38 C.F.R. § 3.159(a)(1); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Appellant is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. A conclusory, generalized lay statement that military service caused the Veteran's death is insufficient to prove that the Veteran's death should be service connected. Thus, her lay assertions do not constitute evidence upon which service connection can be granted. Consequently, the Board ultimately assigns greater probative weight to the opinions rendered by the VA medical examiner, based on appropriate diagnostic research and reasonably drawn conclusions with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In summary, there is no evidence that the Veteran's Acute Toxic Metabolic Encephalopathy or Vascular Dementia, diagnosed 60 years after separation, was causally or etiologically related to his service, and the claim for service connection for cause of death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.