Citation Nr: 21075732 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-44 798 DATE: December 21, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDING OF FACT The Veteran's cause of death was not due to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1954 to September 1957, from January 1964 to January 1967, and from May 1967 to June 1967, to include service in the Republic of Vietnam. The Veteran died in August 2012. The appellant is the Veteran's surviving spouse. In February 2019, the appellant was afforded a Board hearing before the undersigned. A copy of the transcript is of record. Following a lengthy procedural history, the Board remanded the issue on appeal for further development in March 2021. Entitlement to service connection for the cause of the Veteran's death The appellant asserts that the Veteran died as a result of service connected disabilities, specifically his psychiatric disorder, deviated septum, and diabetes mellitus. Additionally, at her February 2019 Board hearing, the appellant, through her representative, indicated that the Veteran was exposed to herbicide agents during service, and that exposure led to congestive heart failure or ischemic heart disease. In order to establish service connection for the cause of the veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death it must singly, or with some other condition, be the immediate or underlying cause, or else be etiologically related. For a service-connected disability to constitute a contributory cause, 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 U.S.C. § 1310; 38 C.F.R. § 3.312. In the alternative, service connection for the cause of death may be warranted where the evidence indicates that the cause of the veteran's death should have been service connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service or, in the alternative, is secondary to another service-connected disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304, 3.310. At the time of the Veteran's death, service connection was in effect for psychiatric disability, to include posttraumatic stress disorder (PTSD); bilateral recurrent inguinal hernias status post repair; diabetes mellitus; right elbow bursitis; chronic headaches; contact dermatitis; status post nose fracture; peripheral neuropathy of the right and left lower extremities; costochondritis of the left chest, with history of temporary paralysis of the left shoulder; hemorrhoids; residuals of a fracture of the facial bone; and bilateral inguinal hernia repairs. A certificate of death reflects that the Veteran died in August 2012. It further reflects that the immediate cause of death was respiratory arrest, and the underlying cause was severe chronic obstructive pulmonary disease (COPD). The Board notes that the Veteran was not service connected for COPD at the time of his death. A review of the Veteran's service treatment records shows there were no complaints, treatment, or diagnosis of COPD. Furthermore, there is no evidence that COPD developed within one year of the Veteran's discharge. The earliest medical evidence of record indicating the presence of COPD is decades after his active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A February 2016 VA opinion reflects that the Veteran had a long history of severe COPD with frequent acute exacerbations and the need for nebulizing treatment/oxygen, and his medical records note that his COPD progress was poor. The VA examiner indicated that there were no medical records documenting that any of the Veteran's service connected disabilities were out of control at the time of his death. The opinion noted the appellant's contentions relating to his psychiatric disability and his deviated septum and found that there was no medical evidence to support either contention. The Board notes that on August 7, 2012, three weeks prior to his death, the Veteran was taken to the hospital from his skilled nursing facility for altered mental status due to presumably low blood sugar. He was discharged back to the care facility the next day. Regarding the Veteran's psychiatric disability, the Board notes that, although the records reflect that the Veteran's depression affected his motivation or desire to complete tasks or get out of bed in the morning, there is no medical evidence or opinion of record indicating that the Veteran's cause of death was related to his service-connected psychiatric disability. As for the appellant's contention that the Veteran's status post nose fracture blocked his airway on one side of nose, resulting in the lack of oxygen, a June 2005 VA examination found that the Veteran had no residual problems due to his status post nose fracture disability. As noted above, the Veteran had severe COPD with frequent exacerbations requiring oxygen. There is no medical evidence or opinion of record indicating that the Veteran's service-connected status post nose fracture was a primary or contributory cause of his death. The Board has also considered the appellant's contention, set forth in her notice of disagreement (NOD), that the Veteran suffered from respiratory arrest and severe COPD as a result of his service-connected diabetes mellitus type II. Medical records reflect that the Veteran was hospitalized in August 2012 due to hypoglycemia. However, there is no indication in the hospital records, or any other medical records, that the Veteran's diabetes mellitus further complicated his COPD or could have resulted in respiratory arrest. As noted above, on August 7, 2012, three weeks prior to his death, the Veteran was taken to the hospital from his skilled nursing facility for altered mental status due to presumably low blood sugar and discharged back to the care facility the next day. As the February 2016 VA examiner stated none of the Veteran's disabilities were out of control at the time of his death, and the Veteran had a low blood sugar episode three weeks prior to his death, a new VA opinion was sought to determine whether the Veteran's diabetes mellitus caused the respiratory arrest or COPD. In an August 2021 VA opinion, the examiner noted the medical review did not reveal evidence for severely uncontrolled type 2 diabetes around the time of the Veteran's death. The examiner opined the Veteran's death was less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus disability. However, in the rationale the examiner stated that without an autopsy report she could not say without resort to mere speculation whether or not the Veteran's uncontrolled diabetes was a contributing factor to his death. The same examiner provided another opinion that it was less likely than not the Veteran's principle cause of death, respiratory arrest, or the contributing cause of death, severe COPD were related to the Veteran's service-connected diabetes mellitus. The rationale provided was that respiratory arrest and COPD are separate unrelated diagnoses from diabetes. The examiner stated that diabetes does not cause or aggravate COPD or respiratory arrest and therefore, it was the examiner's opinion that the respiratory arrest and severe COPD that caused the Veteran's death were not related to the Veteran's diabetes mellitus. To the extent that the appellant's assertions purport to provide a link between any of the above mentioned disabilities and the Veteran's cause of death, such assertions do not provide persuasive support for the claim, as the appellant is not shown to possess the medical training to render competent opinions about such complex medical matters. See Davidson v. Shinseki, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the lay assertions in the present case are outweighed by the existing medical opinion and medical evidence of record. Accordingly, there is no competent evidence in the record that any of the Veteran's service connected disabilities were either the principal or contributory cause of the Veteran's death. Turning to the appellant's claim that the Veteran's exposure to herbicide agents in service caused a heart disability which was either the primary or contributory cause of the Veteran's death, the Board finds that the evidence does not demonstrate that the Veteran had a heart disability at the time of his death or that a heart disability was the primary or contributory cause of the Veteran's death. The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975 (Vietnam era), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309 (e) (including ischemic heart disease) shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. STRs show several complaints of left sided chest pain. After being involved in a motor vehicle accident in January 1965, the Veteran complained of chest pain, but testing was normal. In December 1965, the Veteran was hospitalized for cellulitis of both knees. While there he complained of chest wall pain and had tenderness. On examination, the chest was clear to percussion and auscultation and heart tones were clear. The impression was chest wall pain of an unknown etiology, probable musculoskeletal. In February 1966, the Veteran again complained of chest pain in the heart area for the previous three days. On examination the heart had normal sinus rhythm and no murmurs. He was diagnosed with pleuritic chest pain. In June 1970 after continued complaints of chest wall pain located at the costochondral joint a chest x-ray was ordered but was negative. He was diagnosed with costochondritis. A November 1972 record reflects that the Veteran complained of heart pain over the previous three years however EKG and chest films were negative. The impression was costochondritis. The Veteran continued to have complaints of left-sided chest pain until his discharge in June 1976 with the last treatment before separation showing the Veteran had complaints of left-sided chest pain since 1969. Service connection for the Veteran's chest pain was granted and rated as costochondritis in a June 1978 rating decision. There are various treatment notes in the post-service medical records. An August 2007 chest radiograph showed no focal consolidation, effusion or failure. The heart appeared normal, and the impression was no active cardiopulmonary disease. In November 2007, the Veteran was assessed for chest pain. It was determined that the chest pain was noncardiac in nature and probably related to rib pain exacerbated by continuous coughing. A cardiac examination was noted to be unremarkable with no clinical evidence of congestive heart failure. It was noted the Veteran had no other symptoms suggestive of coronary artery disease and that no admission was needed for ruling out ischemia at that point. April 2009 emergency room treatment notes show that the Veteran complained of shortness of breath and pain on the left side. He was assessed with COPD mild, improved and chest pain of unknown etiology, recurrent resolved. His shortness of breath was attributed to his COPD. A November 2009 chest x-ray showed the heart was normal. A June 2010 medical treatment record indicates that the Veteran had mild congestive heart failure, but it had resolved. An October 2010 pre-op anesthesia note shows the Veteran's EKG was normal with no evidence of acute ischemia. The Veteran's most recent VA examination for special monthly compensation purposes, conducted in March 2011, provided no diagnosis related to the Veteran's heart. A July 2011 chest x-ray showed some hyperinflation in the lungs however the heart size and configuration was normal. An October 2011 treatment record indicates that the Veteran was admitted to the hospital with shortness of breath. It was noted that the Veteran was known to have severe COPD and was oxygen dependent. A chest x-ray showed a possible early right lower lobe pneumonia and a new left and right lower lobe infiltrative change consistent with congestive heart failure. The diagnoses were acute congestive heart failure with respiratory distress, untreated diabetes, COPD, and hypertension. The Veteran did not have any increased heart size compared to a prior chest x-ray from August of 2011. The ECG was unremarkable with normal sinus rhythm, sinus arrhythmia and nonspecific T changes laterally, but no acute infarct or ischemic change was noted. At discharge a week later, the diagnoses included right lower lobe pneumonia, probably secondary to aspiration, resolving, COPD, and diabetes mellitus controlled. It was also noted that the Veteran had endstage COPD. Diagnostic imaging from July 2012 found no evidence of congestive heart failure. August 2012 hospital records indicate that the Veteran had end stage COPD, diabetes mellitus, peripheral vascular disease, and a history of esophageal carcinoma. Notably, peripheral vascular disease does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e) n.2. Thus, there is no medical evidence in the record that the Veteran had a heart disability, to include ischemic heart disease, at the time of his death or that a heart disability may have been a primary or contributing factor in the Veteran's cause of death. At most, the evidence demonstrates acute episodes of congestive heart failure that resolved. The Board acknowledges that a VA opinion has not been sought to address the appellant's theory that the Veteran's exposure to herbicides caused a heart disability that contributed to the Veteran's death. As the Court noted, under 38 U.S.C. § 5103A(a), the Secretary must provide a medical opinion to a DIC claimant when the opinion is "necessary to substantiate the claimant's claim for a benefit." Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); see DeLaRosa v. Peake, 515 F.3d at 1322. In this case diagnostic imaging in the month prior to the Veteran's death found no evidence of congestive heart failure, hospital records in August 2012, the month of the Veteran's death, showed no diagnosis of ischemic heart disease, and previous medical testing specifically excluded ischemia as a finding. Accordingly, the Board finds that a medical opinion is not necessary to address the theory that the Veteran's exposure to herbicides caused a heart disability, namely ischemic heart disease, that contributed to his cause of death. (Continued on the next page) The Board acknowledges the appellant's belief that the Veteran's cause of death was related to his military service, however no medical evidence or opinion has been offered to support that contention, and neither the appellant nor her representative have been shown to possess the medical training to render a competent opinion about such a complex medical matter. See Davidson, 581 F. 3d at 1313; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Based on the medical evidence in the claims file, the Board finds that service connection for the cause of the Veteran's death is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.