Citation Nr: 21070898 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-42 131 DATE: November 26, 2021 ORDER Entitlement to service connection for cause of the Veteran's death is denied. FINDING OF FACT The Veteran's cause of death is not related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of the Veteran's death have not been met. 38 U.S.C. §§ 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1953 to June 1955. The Veteran died in July 2013. The appellant is the Veteran's surviving spouse. This case 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). The appellant originally requested a hearing before the Board. However, in a November 2019 Correspondence, the appellant's representative stated that the appellant waived her right to have a hearing. The Board remanded the issue in February 2020, April 2021, and July 2021 for further development. Specifically, the Board sought an adequate opinion as to the question of whether the Veteran's service-connected disabilities contributed to his death. As reflected in the subsequent discussion section, an adequate opinion has now been obtained, and the Board finds substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for cause of the Veteran's death. The appellant is seeking service connection for the cause of the Veteran's death. The appellant asserts that as the Veteran got older, his feet hurt him so much that the pain caused him not to be able to walk and do exercises. As a result, his foot disability added to his morbid obesity, which is listed on his death certificate. See August 2017 VA Form 21-4138 Statement in Support of Claim. According to the Veteran's death certificate, the Veteran died in July 2013. The Veteran's underlying causes of death were listed as ventricular arrhythmia, cardiac arrhythmia, and morbid obesity. Hypercholesterolemia was listed as another significant condition contributing to the Veteran's death, but it did not result in the underlying cause of death. See April 2013 Death Certificate. At the time of his death, the Veteran was service-connected for bilateral pes planus with a 30 percent rating and bilateral hearing loss with a noncompensable rating. Following his death, the RO granted service connection for tinnitus with an evaluation of 10 percent. To establish service connection for the cause of a Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to the cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A service-connected disability will be considered a contributory cause of death when it combined to cause death or 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(c)(1). Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in- service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). On his October 1953 Report of Medical Examination, it was noted that the Veteran was 90 pounds above the standard weight, but was obviously active, of firm muscular stature, and evidently vigorous and healthy. On his October 1953 Report of Medical History, the Veteran checked "yes" to having palpitation or a pounding heart. A March 1954 service treatment record noted that the Veteran experienced chest pain while in service when the Veteran was under some sort of stress. It was interpreted as emotional stress and diagnosed as a psychogenic cardiovascular reaction. Notably, the Veteran's June 1955 Report of Medical Examination listed his heart as normal. However, the physician noted that the Veteran was 62 pounds above the standard weight but was obviously active, of firm muscular stature, and evidently vigorous and healthy. For the most part, the Veteran's service treatment records were silent for any signs, symptoms, or treatment for a heart condition, morbid obesity, or high cholesterol. Post-service treatment records show that the Veteran did not develop these issues until years after service. In June 2020, a VA medical opinion was obtained. The examiner opined that a review of the medical records showed that the Veteran died of ventricular and cardiac arrhythmia and morbid obesity. The Veteran was service-connected for bilateral pes planus, hearing loss, and tinnitus. Bilateral pes planus (hearing loss/tinnitus) did not cause or materially contribute to the cardiac arrhythmia or obesity. The Veteran's service-connected bilateral pes planus, hearing loss, and tinnitus did not preclude all forms of exercise. For example, paraplegics exercised and maintained appropriate body mass index (BMI). Obesity was most commonly caused by a combination of excessive food intake and lack of physical activity. Obesity was a medical condition in which excess body fat had accumulated to the extent that it might have a negative effect on health. People were generally considered obese when their BMI was over 30 kg/m2. In an April 2021 VA addendum medical opinion, the examiner opined that it was less likely than not that the Veteran's cause of death was proximately due to or the result of the Veteran's service-connected condition. A review of the death certificate in the medical record showed that the Veteran died in July 2013 due to ventricular and cardiac arrhythmia and morbid obesity. Other significant conditions contributing to death but not resulting in the underlying cause was hypercholesterolemia. The Veteran was service-connected for bilateral pes planus, hearing loss, and tinnitus. There was no objective evidence to support bilateral pes planus caused or materially contributed to cardiac arrhythmia and/or obesity. There was no objective evidence to support that the Veteran's service-connected bilateral pes planus would preclude all forms of exercise. For example, paraplegics exercise and maintain appropriate BMI. There was no documentation in available medical records surrounding physical limitations specifically due to pes planus. Of note, the Veteran had orthopedic conditions, to include right hip and left knee replacements, which were noted to cause him physical limitations. Obesity was most commonly caused by a combination of excessive food intake and lack of physical activity, which were willful choices. Morbid obesity was defined as being 100 pounds or more above ideal body weight or having a BMI of 40 or greater. In July 2021, another VA addendum medical opinion was obtained. The examiner opined that it was less likely than not that the Veteran's cause of death was incurred in or caused by an in-service injury, event, or illness. A review of the death certificate in the medical record showed that the Veteran died in July 2013 of ventricular and cardiac arrhythmia and morbid obesity. Other significant conditions contributing to death but not resulting in the underlying cause was hypercholesterolemia. Current medical literature did not support a causal nexus between ventricular and cardiac arrhythmia, morbid obesity, and/or hypocholesterolemia and pes planus. There was no objective evidence to support aggravation. In September 2021, another VA addendum medical opinion was obtained. The VA examiner opined that there was no objective evidence that gave merit to the appellant's July 2017 statement that the Veteran gained weight as he got older because his feet hurt him so much. That statement noted that the Veteran could not walk or do other exercises as he wanted to, which it was surmised added to his overweight problem and morbid obesity, which was listed on the death certificate as one of the causes of death. However, the examiner noted documentation in the Veteran's service treatment records showed that the Veteran was first deemed overweight beginning in 1953 with no limitation on physical activity. The examiner specifically noted that there was no documentation in the available medical records surrounding physical limitations specifically due to pes planus. Of note, the Veteran had other orthopedic conditions, to include right hip and left knee replacements, which were noted to cause him physical limitations and were not themselves service connected. The Board finds that the June 2020, April 2021, July 2021, and the September 2021 VA medical opinions to be adequate and probative in value when taken together was a whole. When read together as a whole, these medical opinions address the appellant's lay statements, consider the Veteran's medical history, and provide a sufficient rationale for the conclusion. These medical opinions, as a whole, greatly weigh against the appellant's claim for service connection for cause of the Veteran's death. Though earlier Board remands found the June 2020, April 2021, and July 2021 opinions to be inadequate, such findings were based on the premise that the examiner did not answer all relevant questions and not as to any underlying problems with the opinions that were rendered. Again, the Board has read these opinions together in order to reach the conclusion noted. As for the statements from the appellant relating the Veteran's cause of death to his military service, it is beyond her competence as a layperson to give a nexus opinion. The appellant is a layperson and lacks the training to opine regarding medical etiology; this is a question that is medical in nature and may not be resolved by mere lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (finding that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court). Ultimately, the Board finds that the preponderance of the evidence of record weighs against finding that the Veteran's cause of death is related to his military service. Entitlement to service connection for cause of death is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.