Citation Nr: 21072064 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-21 022 DATE: December 2, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The record evidence, to include a certificate of death, shows that the Veteran died in January 2016 due to or as a result of septic and cardiogenic shock. 2. The record evidence shows that, at the time of the Veteran's death, service connection was in effect for generalized anxiety disorder, headaches, a scar on the right side of the face, and a chest scar. 3. The record evidence shows that the cause of the Veteran's death is not related to active service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1942 to February 1953 in the U.S. Navy, including in combat in the Pacific Theater of Operations during World War II. He also had active service from January to September 1955 in the U.S. Army. He died in January 2016. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision which denied the currently appealed claim. A virtual Board hearing was held in October 2021 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. The Board notes that the Appellant asserted that the Veteran was treated at the VA Medical Center in Chicago, Illinois (VAMC Chicago) between approximately January 1950 and July 1966, which the Board notes is partially during his time of active service. Information provided by VAMC Chicago to the Agency of Original Jurisdiction (AOJ) in March 2018 indicates that there are no records available for the Veteran from this facility during this time period. The Board next notes that the National Personnel Records Center in St. Louis, Missouri ("NPRC"), previously notified the AOJ in June 2016 that the Veteran's service treatment records and service personnel records were impacted by a catastrophic fire which occurred at this facility in July 1973, and all available service records had been forwarded to the AOJ. These records are present in the claims file. In cases where the Veteran's service treatment records (or other relevant records) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA also must provide an explanation to the Appellant regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). Having reviewed the record evidence, the Board finds that it is reasonably certain that treatment records from VAMC Chicago dated between approximately January 1950 and July 1966 and additional service treatment records or service personnel records do not exist and further efforts to obtain these records would be futile. The Board next notes that there appears to be some confusion as to whether the Veteran is a former prisoner of war (POW). It appears that the AOJ conducted additional development on this issue apparently in response to an assertion made by the Appellant that the Veteran was a POW in the Philippines during World War II. The basis for conducting this development is not clear from a review of the record evidence as the Board cannot locate the Appellant's assertion that the Veteran was a POW following a review of the claims file. For example, although the AOJ refers to an assertion by the Appellant that the Veteran is a former POW, a review of her original VA Form 21 534EZ filed in February 2016 shows that she informed VA that, in fact, the Veteran was never a POW. Nevertheless, subsequent correspondence from the AOJ to the Appellant dated in April 2016 shows that development was underway to determine whether the Veteran was a POW. In December 2016, the AOJ confirmed that a review of Department of Defense (DoD) archival databases and information at the National Archives concerning former POWs confirmed that the Veteran was not, in fact, a POW. Entitlement to service connection for the cause of the Veteran's death The Board finds that the preponderance of the evidence is against granting the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant essentially contends that a disease or disability initially experienced by the Veteran while on active service caused or contributed to his death decades later. She alternatively contends that a service-connected disability caused or contributed to the Veteran's death. The record evidence, to include the Veteran's death certificate, does not support finding an etiological link between the cause of his death and active service or any incident of service, including as due to a service-connected disability. It shows instead that the cause of the Veteran's death is not related to service. The death certificate shows that the Veteran died at a private hospital in February 2016 as a result of septic and cardiogenic shock. There were no other causes of death listed on the death certificate. The manner of the Veteran's death was natural, and no autopsy was performed. The available service treatment records show no complaints of or treatment for the cause of his death. The Board notes that the absence of contemporaneous records does not preclude granting service connection for the cause of the Veteran's death. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for the cause of the Veteran's death. It shows instead that the cause of his death septic and cardiogenic shock is not related to active service. The Board notes in this regard that cardiogenic shock is defined as shock resulting from primary failure of the heart in its pumping function as in myocardial infarction, severe cardiomyopathy, or mechanical obstruction or compression of the heart. The Board next notes that septic shock is defined as shock associated with overwhelming infection, usually infection with gram-negative bacteria, although it may be produced by other bacteria, viruses, fungi, or protozoa. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1691 (30th ed. 2003). It is undisputed that, prior to his death, service connection was in effect only for generalized anxiety disorder, headaches, a scar on the right side of the face, and a chest scar. The Appellant testified before the Board in October 2021 that the Veteran was treated for heart problems prior to his death. See Board hearing transcript dated October 14, 2021, at pp. 3. It also appears that she testified that the Veteran's service-connected generalized anxiety disorder caused or contributed to hypertension which caused or contributed to the heart problems which caused or contributed to his death. Id., at pp. 4. The Board acknowledges that the Veteran's terminal medical records were not associated with the claims file. The Appellant does not contend and the evidence does not suggest that the Veteran was treated for a service-connected disability prior to his death or while hospitalized at the time of death such that obtaining these records is necessary to substantiate her claim. More importantly, the evidence does not suggest that a service-connected disability caused or contributed to his death. Thus, the Board finds that the AOJ's failure to obtain the Veteran's terminal medical records constitutes harmless error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing harmless error). The Board next acknowledges that a medical opinion concerning the contended etiological relationship between the cause of the Veteran's death and active service was not obtained in this appeal. The Board notes in this regard that, in determining whether a medical opinion is warranted in a claim for the cause of the Veteran's death), VA must determine if such opinion is "necessary to substantiate the claim" or whether "no reasonable possibility exists that such assistance would aid in substantiating the claim." DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2009); 38 U.S.C. § 5103A(a). In this case, the Board notes that the medical evidence, to include a certificate of death, shows that the Veteran died more than 60 years after his service separation of septic and cardiogenic shock. There is no medical evidence of continuity of symptoms or competent opinion of a nexus between the Veteran's fatal septic and cardiogenic shock and any incident of service. The Board again notes that, at the time of the Veteran's death, service connection only was in effect for generalized anxiety disorder, headaches, a scar on the right side of the face, and a chest scar. There is no competent evidence, other than the Appellant's statements, which indicates that the cause of the Veteran's death may be associated with service. The Appellant is not competent to testify as to the cause of the Veteran's death as it requires medical expertise to diagnose. Nor is the Appellant competent to testify as to the etiology of the Veteran's septic and cardiogenic shock prior to his death. See Buchanan, 451 F.3d at 1331; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that there is "no reasonable possibility" that obtaining an opinion regarding the cause of the Veteran's death or the asserted etiological relationship between septic and cardiogenic shock and active service "would aid in substantiating the claim." See DeLaRosa, 515 F.3d at 1322, and Wood, 520 F.3d at 1348. Contrary to the Appellant's lay assertions and hearing testimony, the evidence shows that the cause of the Veteran's death is not related to active service. It is undisputed that, prior to the Veteran's death, service connection only was in effect for generalized anxiety disorder, headaches, a scar on the right side of the face, and a chest scar. It also is undisputed that generalized anxiety disorder, headaches, a scar on the right side of the face, and a chest scar are not listed among the causes of his death. The Board already has found that the AOJ was not required to obtain a medical opinion concerning the contended etiological relationship between the cause of the Veteran's death and active service (as discussed above). The Appellant otherwise has not identified or submitted any evidence demonstrating entitlement to service connection for the cause of the Veteran's death. Thus, the Board finds that service connection for the cause of the Veteran's death is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.