Citation Nr: 21073105 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-23 203 DATE: December 7, 2021 ORDER Entitlement to service connection for cause of death, to include as due to herbicide exposure, is denied. FINDING OF FACT 1. The Veteran passed away on December [REDACTED], 1995. The certificate of death lists the immediate cause of death as pulmonary tuberculosis. No secondary causes were listed. 2. At the time of his death, the Veteran was service connected for the following conditions: posttraumatic stress disorder (PTSD), a cervical spine disability, and scarring from a gunshot wound on his left calf. The Veteran was rated as 100 percent disabled as of February 4, 1994. 3. The preponderance of the evidence weighs against finding an etiological linkage between the Veteran's cause of death and his active-duty service, to include as due to herbicide exposure or contaminated drinking water at Camp Lejeune. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for cause of death, to include as due to herbicide exposure or contaminated drinking water at Camp Lejeune have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38C.F.R. §§3.102, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from April 1967 to May 1970. For his exemplary service, he was awarded multiple commendations including the Vietnam Service Medal with one Star. Regrettably, on December [REDACTED] , 1995, the Veteran passed away. The Appellant is his surviving spouse. In March 2019, the Appellant testified at a videoconference hearing before the undersigned Veteran's Law Judge. A transcript of that hearing has been associated with the record. In September 2019, the Board issued a decision which granted the Appellant's request to reopen the claim of entitlement to service connection for cause of death but denied the underlying service connection claim. The Appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Appellant, through an attorney, and a representative from VA General Counsel), and thereby vacated and remanded the Board's decision so far as it denied entitlement to service connection for cause of death. In a June 2021 Board decision, the Veteran's claim was remanded for additional development as consistent with the JMPR. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection cause of death To establish service connection for the cause of the Veteran's death, the evidence must show that a disability which was incurred in or aggravated by active-duty service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2020). In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been 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). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, 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). Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312 (c)(3). In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for cause of death, to include as due to herbicide exposure The Appellant asserts entitlement to service connection for the Veteran's cause of death. Review of the record indicates that the Veteran passed away on December [REDACTED], 1995. At the time of the Veteran's death, service connection had been granted for posttraumatic stress disorder (PTSD), a cervical spine disability, and scarring from a gunshot wound on his left calf. His death certificate listed the immediate cause of death as pulmonary tuberculosis. No secondary causes were indicated. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. After a careful review of the record, the Board finds that service connection for the cause of the Veteran's death is not warranted. As a preliminary matter, the Board observes that the Veteran's official military occupation was listed as rifleman and small arms proof director and that the Veteran received the Combat Action Ribbon for his service in the Republic of Vietnam. Considering the above, herbicide exposure is conceded. His certificate of discharge also indicates that the Veteran was stationed at Camp Lejeune. Therefore, exposure to contaminated drinking water is also possible. Review of service treatments records indicate that no disqualifying abnormalities were identified on physical examination at enlistment in April 1967. Similarly, no defects or current diagnoses were identified at separation, in May 1970. Post-service treatment records show that the Veteran was hospitalized at a regional medical center with symptoms including a sore throat, fever, chest pain, dyspnea, and respiratory distress in November 1995. Other symptoms were listed as pulmonary infiltrate and severe hypoxemia. Initially, the Veteran was treated with Intravenous (IV) antibiotics. Three months earlier, in August 1995, he was treated for an upper respiratory infection. During the clinical interview, the Veteran acknowledged a prior history of chronic and excessive cigarette smoking (a habit of one-pack per day, in early remission). Daily use of marijuana was also endorsed, but he denied any history of alcohol consumption. An onset of a productive cough with sinus drainage and occasional dyspnea began two years earlier. As a result, the Veteran discontinued use of smoking tobacco, including cigarettes. Over a week prior to admission, the Veteran reported worsening symptoms to include a fever, chills, increased mucus production, dyspnea and bronchospasm. Prescribed treatments included Septra-PO. A chest X-ray revealed pneumonia, diffuse bilateral pulmonary disease, possibly of infectious etiology, with bilateral infiltrate. Other symptoms include severe hypoxemia. His past treatment history included diabetes mellitus, hypertension, bronchial asthma, allergic rhinitis, bronchitis, chronic obstructive pulmonary disease, or pulmonary tuberculosis. An EKG revealed evidence of tachycardia, and supraventricular arrhythmia. His respiratory symptoms contributed to his tachycardia. Laboratory findings suggested anemia, a possible ulcer, gastritis, or esophagitis. Although an endoscopy was required to confirm a diagnosis, it was not recommended as the Veteran's current condition was deemed unstable. A bronchoscopy was also recommended when stability was achieved. On December 2, 1995, the Veteran's condition deteriorated. At that time, he was noted to have lost a significant amount of weight and had a positive hemoccult. The latter was deemed likely associated with an ulcer, bleeding due to gastritis or malignancy in his esophagus. Following two blood transfusions, a test for Acid Fast Bacilli yielded positive findings. The family was advised of a positive tuberculosis (TB) test. Due to acute respiratory failure, the Veteran was moved to the coronary care unit where a Swan-Ganz catheter and arterial line was placed along with a Sodium Bicarb drip. Regrettably, he suffered a cardiac arrest and cardiopulmonary resuscitation was required to revive him. After an initial revival, the Veteran was taken to ICU where he suffered an additional cardiac arrest and was pronounced dead on December [REDACTED], 1995. The diagnostic impression indicated that the Veteran was thought to have suffered from diffuse tuberculosis pulmonary disease upon initial admission, with a suspicion of esophageal malignancy. Complicating factors were listed as cardiac dysthymia and eventual cardiac depression and arrest with acute renal failure and development of ARDS. In an email correspondence, dated April 2019, the regional medical center's chair of internal medicine reviewed the Veteran's medical records. Thereafter, the physician concluded that the Veteran significantly deteriorated after a blood transfusion, which caused an associated volume overload. A supraventricular tachycardia soon followed, with ventricular fibrillation and cardiac arrest. Thus, the Veteran did not have a heart attack per se -he had a cardiac arrhythmia and ultimately a lethal cardiac rhythm. While treatment evidence confirms a positive finding for acid fast bacilli, a confirmed diagnosis of tuberculosis was not found. Moreover, the medical evidence suggested esophageal malignancy (cancer); however, an EGD could not be performed due to the Veteran's unstable condition. Considering the above, the physician opined that preserved ejection fraction heart failure after blood transfusion and subsequent cardiac arrhythmia contributed to his death. In a lay statement, dated May 2019, the Appellant contends that the Veteran's cause of death was listed incorrectly. She contends that his death resulted from a heart condition and suggests a possible linkage to herbicide exposure during his period of service in the Republic of Vietnam. It was further asserted that the Veteran did not have a current diagnosis of TB at the time of his death. In support thereof, the appellant stated that the Veteran's wife, daughter and son were tested, and no finding of TB was indicated. Alternatively, the Appellant asserted that the Veteran had a current diagnosis of esophageal malignancy (cancer) at the time of his death and that diagnosis was casually related to his exposure to contaminated drinking water while stationed at Camp Lejeune. Pursuant to a Board June 2021 decision, which implemented the November 2020 JMPR, the Veteran's claim was remanded to consider the alternate theories of entitlement that were reasonable raised by the record. Therefore, a VA medical opinion was deemed necessary. In October 2021, a VA examiner considered the medical evidence of record. Thereafter, the examiner opined that it is less likely than not that the Veteran's cause of death was causally related to active service, to include as due to exposure to toxins, contaminated drinking water or herbicides therein. In support of the stated conclusion, the examiner noted that there is no evidence of a proven diagnosis of esophageal malignancy, ischemic heart disease, or non-Hodgkin's lymphoma. Further, there is no evidence in the medical literature or toxicology literature citing Camp Lejeune contaminated water or herbicide exposure (Agent Orange) as a cause of the Veteran's medical conditions at the time of his death. More specifically, at the time of the Veteran's death in December 1995, it was suggested that he suffered from pulmonary tuberculosis complicated by pneumonia and adult respiratory distress syndrome (ARDS). Complicating conditions include pneumonia and respiratory failure, acute renal failure, and cardiac dysthymia. Secondary diagnoses were listed as hypoxia, anemia, gastrointestinal bleeding, possible esophageal malignancy, sepsis, and hypokalemia. Similarly, the examiner noted that the service treatment records were silent for any disqualifying abnormalities at enlistment or separation. Thus, a nexus between the Veteran's cause of death and active service, or any related exposures, had not been established. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. Although the Board acknowledges the Appellant's lay assertions, to include alternate medical diagnoses and a correlation to his service-related exposures, the evidence of record does not support her contention. Further, while a lay person is competent to report on observable symptoms and their onset, lay assertions are not deemed competent as to complex medical questions or conclusions in the absence of a showing that such person possessed the training, credentials, or expertise required to render a medical diagnosis. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds the VA examiner's opinion to be more probative as it was rendered by a competent medical professional and cited to accepted medical principles after review of the Veteran's medical history. Moreover, review of the medical evidence confirms that the Veteran suffered from numerous medical conditions prior to his medical decline which later resulted in his death. Of note, his clinical history included chronic and prolonged use of smoking tobacco, which has been commonly associated with the development of upper respiratory conditions including bronchial asthma, allergic rhinitis, bronchitis, chronic obstructive pulmonary disease, or pulmonary tuberculosis. All of the noted conditions were documented in the Veteran's treatment history. Further, even following his brief remission of tobacco usage, the Veteran endorsed daily use of marijuana. Even if the Board were to presume that the Veteran had a confirmed diagnosis of esophageal malignancy and a heart condition at the time of his death, the medical evidence also suggests a history of upper respiratory conditions that were complicated by years of excessive smoking. As noted above, the Veteran's upper respiratory conditions largely caused the Veteran's rapid decline which ultimately led to the cardiac symptoms from which he was unable to recover. Further, the Veteran's excessive smoking habit persisted for many decades after his service-related exposures ceased. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran's cause of death was not etiologically related to his military service, to include as due to exposures incurred therein. As previously indicated, the medical evidence is silent for a diagnosis of an upper respiratory condition, heart disease, or cancer during active service or within one year of separation. While a suggestion of a correlation between the Veteran's unconfirmed medical diagnoses and active service was noted, the medical evidence shows that it is more likely that the cause of the Veteran's death resulted as a complication of his many years of excessive smoking and struggles with related upper respiratory conditions. Further, the medical evidence also shows other risk factors a cardiac event including diabetes mellitus, hypertension, and substance abuse. The Board notes that service connection had not been granted for any of the previously identified conditions. Accordingly, as the preponderance of the evidence is against the appellant's claim for service connection for the Veteran's cause of death, the benefit-of-the-doubt rule does not apply, and the appellant's claim is denied. See 38 U.S.C. § 5107 (2012). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.