Citation Nr: 21069805 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-41 933 DATE: November 19, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Appellant is the surviving spouse of the Veteran who died in January 2014 and who served his country honorably on active duty from December 1953 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). On November 1, 2017, the Appellant provided sworn testimony before the undersigned Veterans Law Judge at a videoconference hearing. A copy of that hearing transcript has been associated with the Veteran's electronic claims file. It must be noted that the hearing transcript mistakenly indicates that the hearing was conducted on November 1, 2018 instead of November 1, 2017, and the Board regrets any confusion this has caused. In November 2017, the Appellant requested a copy of the Board hearing transcript, which was promptly provided to her in March 2018. In November 2018, the Appellant was mistakenly mailed correspondence indicating that her hearing testimony was not captured on VA's Digital Audio Recording System and that a hearing transcript could not be produced. In this letter, the Appellant was given the option to request a new hearing, and in correspondence received from the Appellant in December 2018, she elected to request a new videoconference hearing. In January 2019, the Board sent correspondence to the Appellant notifying her that the November 2018 notice was mailed to her in error and that scheduling of a new hearing was not necessary, as a copy of the November 1, 2017 videoconference hearing transcript was of record. The Board assures the Appellant that the Veteran's electronic claims file contains a complete copy of the hearing transcript from the November 1, 2017 videoconference hearing and that this transcript has been reviewed and considered prior to the issuance of this decision. In July 2021, the Appellant requested that the Board wait the full 90-days from the issuance of the June 3, 2021 docketing letter before considering the appeal. In August 2021, the Veteran's representative filed a motion requesting that the Board delay consideration of the matter until October 16, 2021 to allow the Appellant to submit additional evidence and argument. The undersigned Veterans Law Judge granted the motion in September 2021. The October 16, 2021 deadline for submitting additional evidence and argument has passed, and the Appellant's representative has requested no further time extensions; and in the absence of such, the Board may proceed with its appellate consideration. This matter returns to the Board following a February 2021 memorandum decision issued by the United States Court of Appeals for Veterans Claims (Court). Following the Court decision, the Appellant has not requested any further Board hearings on the matter. The Veteran died in January 2014 and his death certificate listed cardiovascular disease as the underlying cause of death and Parkinson's disease as a significant condition. The Appellant's sole contention on appeal is that the Veteran's death was the result of a congenital heart disease that was aggravated by his active duty service. See July 2014 VA form 21-4138, Statement in Support of Claim. To establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either principally caused or contributed substantially or materially to the Veteran's cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. This matter was previously decided in an April 2019 Board decision, where it was determined that the Veteran's cardiac disability, which resulted in his death, clearly and unmistakably pre-existed and was not aggravated by his active duty service. The Appellant appealed the matter to the Court. During pre-decision briefing, the Secretary submitted argument citing Gilbert v. Shinseki, 26 Vet. App. 48 (2012) for the proposition that the Board erred in applying the rebuttable presumption of soundness in this matter. The Secretary argued that "before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service." See Secretary's brief, p. 10 (emphasis in original). In this case, the Veteran's entrance examination was missing, and it is assumed that no cardiac defects were noted. The remaining available service treatment records were negative for any cardiac complaints, symptoms, or diagnoses or any other information suggesting a cardiac disability manifested or was incurred in service. In such circumstances, Gilbert holds that the framework underlying the rebuttable presumption of soundness is not for application. See Gilbert, 26 Vet. App. at 54 ("[A]bsent the predicate finding that a pre-service disease or injury manifested or was incurred in service, the presumption of soundness is not for application."). In its February 2021 decision, the Court seemingly agreed with the Secretary, stating that the Board "clearly erred in finding that the presumption of soundness applied." Instead of vacating and remanding the matter for the Board to consider the Appellant's claim without application of the rebuttable presumption of soundness, as caselaw from a higher tribunal dictates, see Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012) ("[W]hen the Board misinterprets the law and fails to make the relevant initial factual findings, 'the proper course for the [Court is] to remand the case to the [Board] for further development and application of the correct law.'"), the Court elected to review the Board's factual findings regarding the rebuttal of the presumption of soundness, despite finding that the presumption of soundness should not have been applied in the first place. The Court did not address the accuracy of the Board's determination that the Veteran experienced a congenital heart disease manifested by a bicuspid valve that clearly and unmistakably preexisted the Veteran's active duty service, as it was present in the Veteran's body since birth. Thus, the Court implied there was no error with the Board's factual determination in this regard. However, the Court disagreed with the Board's conclusion that the record contained clear and unmistakable evidence that this preexisting cardiac disability was not aggravated by the Veteran's active duty service. First, the Court stated that the Board impermissibly shifted the burden to the Appellant to establish aggravation. The Court did not support this conclusion with reference to any specific corroborating determination rendered in the Board's April 2019 decision. Then, citing Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court concluded that an "x" indicating that the Veteran's heart was normal at the service exit examination amounted to nothing more than a conclusory statement, which did not satisfy the stringent standard of clear and unmistakable evidence. The Court also held that the "three single notes, one regarding the [V]eteran's weight, one regarding his blood pressure, and one regarding his pulse"that the Board relied upon from the Veteran's limited service treatment recordsalso did not constitute clear and unmistakable evidence of no aggravation. Consequently, the Court declared that the Board clearly erred in determining that the presumption of soundness had been rebutted. Based on this analysis, the Court determined that the Board's conclusions regarding the rebuttal of the presumption of soundness should be reverseddespite previously holding that the Board should have never engaged in a presumption of soundness analysis in the first place. See February 2021 Court decision, p. 4 ("The Board therefore clearly erred in finding that the presumption of soundness applied. The Court will remand the matter with instructions to readjudicate the matter with a finding that the presumption of soundness has not been rebutted.") (internal citation omitted). The legal effect of this ruling is that the Veteran's congenital bicuspid valve disease, which was present from birth and remained dormant and asymptomatic until 2000, nearly 45 years after the Veteran's separation from active duty service, was incurred during the Veteran's active duty service. See February 2021 Court decision, p. 4 (holding that as a result of Court's decision, "the [A]ppellant has satisfied the first two elements of service connection."); see also Gilbert, 26 Vet. App. at 53 ("Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established.") (internal citation omitted). The current disability element of the claim was never in dispute, as the Veteran's death certificate listed cardiovascular disease as the underlying cause of the Veteran's death. The term "cardiovascular disease" is nonspecific, as several distinct cardiac and blood vessel disorders fit under the umbrella term of "cardiovascular disease." See e.g., World Health Organization internet article, received 10/14/21 ("Cardiovascular diseases [] are a group of disorders of the heart and blood vessels."). The in-service incurrence element has also been satisfied pursuant to the Court's February 2021 order, despite a dearth of evidence showing symptoms or a manifestation of cardiac disability during the Veteran's active duty service. Thus, this case now turns on the dispositive issue of medical nexus, and whether the Veteran's death from "cardiovascular disease" was etiologically related to the congenital heart disease manifested by a bicuspid valve, now deemed to have been incurred during service under the legal fiction established by the Court's February 2021 decision. In the October 2021 appellate brief, the Appellant's representative argued that it is uncontestable that the Veteran's congenital heart disease bore a causal relationship to his death from cardiovascular disease. However, a review of the Veteran's medical records shows that he suffered from several distinct cardiovascular disabilities, and it is unclear which of these disabilities resulted in the Veteran's death, and whether the Veteran's congenital bicuspid valve was the principal cause of the Veteran's death or contributed substantially or materially to the Veteran's death or aided and lent assistance to the production of death. See e.g., December 2013 hospital records showing diagnoses of congestive heart failure and chronic atrial fibrillation; August 2012 hospital records showing diagnoses of coronary artery disease status post coronary artery bypass graft and status post catherization in the right coronary artery, and aortic stenosis status post aortic valve replacement). As a layperson without medical training, education, or expertise, the Appellant's representative is not competent to provide an opinion on the medically complex issue of whether an etiological connection exists between the Veteran's cause of death and his congenital bicuspid valve disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board further notes that the Appellant's representative has submitted several internet articles discussing cardiovascular disease and aortic bicuspid valve disease in an attempt to substantiate the Appellant's claim. In some circumstances, science articles can constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). Where medical articles or treatise evidence, standing alone, discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts, a claimant may use such evidence to meet the requirement for a medical nexus. Wallin v. West, 11 Vet. App. 509 (1998). However, the internet articles submitted by the Appellant's representative in this case are too general and inconclusive to substantiate the appeal. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The articles merely define the medical terms cardiovascular disease and bicuspid aortic valve, and do not contain any meaningful analysis suggesting that the cardiovascular disease listed as the Veteran's cause of death was in any way related to his congenital bicuspid valve disease. Additionally, the articles are unaccompanied by any medical opinion relating the information in the articles to the Veteran's specific medical history and factual circumstances. As such, these internet articles are entitled to little probative value in this appeal. In DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit indicated that, while 38 U.S.C. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical nexus opinion for a dependency and indemnity compensation claim (DIC), it does require VA to assist a claimant in obtaining such evidence whenever necessary to substantiate a DIC claim. See also Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008) (holding that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an opinion when no reasonable possibility exists that such assistance would aid in substantiating the claim). Because, in this instance, there is at least a suggestion of a possible correlation between the Veteran's death from cardiovascular disease and his congenital bicuspid valve disease, the Board shall remand the claim for a VA medical opinion. The Board notes that in the April 2019 decision, the Board engaged in an in-depth analysis regarding VA's duty to assist in obtaining any outstanding medical records. The Appellant did not challenge this finding at the Court, and it was not addressed in the February 2021 Court decision. Thus, the Board reiterates its prior conclusion, and finds no further evidentiary development is warranted in this regard. The Appellant has never argued that the significant condition of Parkinson's disease, which was listed on the Veteran's death certificate as a contributing cause of death, was incurred in or is otherwise etiologically related to the Veteran's active duty service. In the absence of such a contention, or any evidence raising such a contention, further analysis regarding entitlement to service connection based on the contributory cause of death based on the Veteran's Parkinson's disease is unwarranted. The Board reached the same conclusion in the April 2019 decision, and it went unchallenged at the Court. The matter is REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate VA examiner. Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's congenital aortic bicuspid valve was the principal (primary) cause of the Veteran's death? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's congenital aortic bicuspid valve contributed substantially or materially to the Veteran's death; that it combined to cause death; or that it aided and lent assistance to the production of the Veteran's death? In answering these inquiries, the VA examiner is reminded that the Veteran's death certificate listed the general term "cardiovascular disease" as the underlying cause of the Veteran's death, despite the Veteran being diagnosed with several cardiovascular diseases at the time of his death. All medical opinions issued by the VA examiner must be accompanied by a complete rationale based on the examiner's clinical experience, medical expertise, established medical principles, and/or citations to the electronic claims file, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.