Citation Nr: 21068353 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-19 862 DATE: November 10, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died on December [REDACTED], 2013; the death certificate listed cardiac arrest as the immediate cause of death. 2. The Veteran's service connected coronary artery disease (CAD) is not the principal or contributory cause of his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1110, 1111, 1310, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.312 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Air Force from March 1969 to March 1973. He died in December 2013. The appellant is the Veteran's surviving spouse. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue on appeal was before the Board in January 2020, at which time the Board denied entitlement to service connection for the Veteran's cause of death. Thereafter, the appellant appealed this decision to the Court of Appeals for Veterans Claims (the Court). In June 2021, a Joint Motion for Remand (JMR) was granted by the Court, vacating the January 2020 Board decision and remanding this issue back to the Board for additional development. Entitlement to service connection for the Veteran's cause of death. The appellant contends that the Veteran's cause of death was due to his service-connected disability. An April 2013 rating decision granted service connection for coronary artery disease (CAD) at a 30 percent rating effective October 2010. The cause of death was listed as cardiac arrest. The appellant's claim for VA compensation was received by VA in March 2014. Compensation may be awarded for the cause of a veteran's death where the evidence shows that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.§ 1310; 38 C.F.R. § 3.312 (a). To constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In the case of contributory cause of death, it must be shown that a service-connected disability contributed substantially or materially to cause death. 38 C.F.R. § 3.312 (c)(1). Service connection for the cause of a veteran's death may be demonstrated by showing that the veteran's death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. Service connection means that the facts, shown by evidence, establish 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 during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). A service-connected disability will be considered as the contributory cause of death when that disability contributed substantially or materially to death, combined to cause death, or aided 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. Service-connected diseases involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, with debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312 (c). To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R.§ 3.312 (c)(1). The Board expresses great sympathy for the appellant's loss; however, a review of the evidence establishes that service connection for the cause of the Veteran's death is not warranted. A review of the Veteran's post-service VA and private treatment records demonstrates that he underwent cardiac testing in May 2008, which was found to be "positive" for ischemia. The Veteran underwent cardiac catheterization in June 2008, which found mild non-occlusive multi-vessel CAD and cardiac testing that was suggestive of IHD. Further review of the Veteran's treatment records demonstrates that the Veteran had a history of atrial fibrillation that required frequent treatment, including cardioversion in July 2011. Most notably, the private treatment records contain a disability benefits questionnaire (DBQ) dated February 2012 provided by the Veteran's cardiologist, which stated that the Veteran did not have a diagnosis of ischemic heart disease (IHD). The DBQ referenced the Veteran's June 2008 heart catherization and reported a LVEF of greater than 50 percent. A June 2012 private treatment record revealed the Veteran complaining of chest pain and atrial fibrillation. His cardiac catherization in 2008 was noted, which found mild non-occlusive multi-vessel CAD. An electrocardiogram (ECG) study conducted on June 22, 2012 revealed left ventricular dysfunction with mild left ventricular enlargement and an area of septal, apical and lateral hypokinesis "suggesting the presence of ischemic heart disease." The Veteran underwent successful cardioversion and was discharged from care. In June 2012, he underwent a VA examination. The examiner noted a diagnosis of CAD and/or IHD as of 2009 and a diagnosis of atrial fibrillation as of 2011. An interview based METs test was conducted and the examiner concluded that the Veteran had dyspnea at greater than five but less than seven METs. Based on this examination report and available medical records, an April 2013 rating decision granted service connection for CAD and awarded a 30 percent rating effective October 17, 2010. In June 2013, the Veteran filed a claim for an increased rating. In September 2013, the Veteran underwent a VA examination via telephone interview with an examiner, who also reviewed the evidence of record. The examiner concluded that the Veteran did not have IHD and opined that it was less likely than not that the Veteran had CAD based on his heart catherization in June 2008 showing diffuse mild nonobstructive coronary arteries and his nuclear cardiology study from June 2012 that yielded normal results. Specifically, the June 2012 study found no evidence of stress-induced ischemia and normal left ventricular contractility of 69 percent. She noted that carotid artery occlusion less than 50 percent is not CAD. The examiner also noted that there was no relation between atrial fibrillation or left ventricular hypertrophy and CAD. Based on the findings that it was less likely than not that the Veteran had CAD, an October 2013 rating decision proposed to decrease the Veteran's rating to a non-compensable rating. The Veteran subsequently died in December 2013. In April 2015, a VA medical opinion was sought regarding service connection for the Veteran's cause of death. The examiner reviewed the available records and opined "with a very high degree of medical certainty that it is less likely as not that the Veteran warranted a diagnosis of an ischemic heart disease." The examiner noted that the medical evidence did not show CAD and that ischemic changes on treadmill testing in 2008 was not indicative of CAD. The examiner also noted that subsequent testing failed to show any evidence that Veteran suffered from a clinically significant CAD condition. While the record indicates that the Veteran had difficulties related to his heart, the evidence does not establish that the Veteran, as likely as not, had a diagnosis of CAD prior to death. The Board finds the opinions of the September 2013 and April 2015 VA examiners persuasive, as they reviewed the Veteran's medical history, cited to the medical evidence of record, and provided a well-reasoned rationale to support the finding that the evidence does not establish a diagnosis of CAD and/or IHD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the Board notes the opinions of the VA examiners are consistent with the DBQ provided by the Veteran's own cardiologist in finding that the Veteran did not have a diagnosis of IHD prior to his death. While the June 2012 VA examiner found a diagnosis of CAD or IHD as of 2009, the Board finds that this opinion is entitled to low probative value, as the examiner failed to address all the evidence of record as well as basing the opinion on an inaccurate factual basis, namely that the evidence of record established that the Veteran had a diagnosis of IHD or CAD. Also, while the evidence of record does contain certain references to possible ischemia and conditions "suggestive of ischemic heart disease" in 2008 and June 2012, the Board notes that subsequent cardiac testing conducted since then showed no evidence of ischemia, IHD, or CAD. The Board places greater probative value on the VA medical opinions which are based on actual test results which document that the Veteran did not have CAD over the annotations which use speculative language and do not cite to the basis for the finding. The test results, including the June 2012 ECG study, were reviewed by the September 2013 and April 2015 VA examiners who found that the Veteran did not have a diagnosis of CAD and/or IHD. Furthermore, the September 2013 and April 2015 VA reports are the only probative evidence that addresses the issue of medical nexus. The appellant has not submitted or identified any other medical evidence apart from the aforementioned evidence that establishes a link between the Veteran's CAD and his cause of death. In light of the negative nexus opinions and lack of any probative positive opinion to contradict the negative evidence, there is simply no basis for a grant of service connection for the Veteran's cause of death. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The appellant contends that the Veteran's death is the result of his CAD. While the appellant may be credible to describe the Veteran's particular symptoms that she observed, determining the exact nature and diagnosis of CAD requires specialized testing and medical knowledge or training which the appellant is not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, she cannot provide an opinion as to etiology in such cases. In addition, the pertinent evidence of record demonstrates that the Veteran's cause of death was not due to his CAD. Accordingly, her lay statements are entitled to low probative value. (Continued on the next page) As the evidence establishes that the Veteran did not have a diagnosis of CAD or IHD prior to his death, the Board finds the preponderance of the evidence is against finding that CAD is the principal or contributory cause of the Veteran's death. As such, service connection for cause of death is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.