Citation Nr: 21075867 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 05-00 415 DATE: December 21, 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 the Veteran's death certificate, shows that he died in October 1992 of cardiorespiratory failure due to cardiovascular failure. 2. The record evidence shows that, at the time of the Veteran's death, service connection was not in effect for any disabilities. 3. The record evidence shows that, despite multiple documented attempts to obtain outpatient treatment records for the Veteran from the former U.S. Naval Hospital, Subic Bay, Republic of the Philippines, dated between January 1, 1956, and January 1, 1992, it is reasonably certain that these records do not exist and further attempts to obtain them would be futile. 4. The record evidence shows that the Defense Threat Reduction Agency (DTRA) confirmed that the Veteran participated in Operation CROSSROADS during active service; thus, his in-service ionizing radiation exposure is conceded. 5. The record evidence shows that the cause of the Veteran's death is not related to active service or any incident of service, to include his acknowledged in-service ionizing radiation exposure. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.311 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1927 to June 1956, including in combat in World War II and the Korean Conflict. He died in October 1992. The Appellant is his surviving spouse. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In January 2013, the Board was notified by Paralyzed Veterans of America (PVA) that the Appellant had appointed them to represent her before VA without their knowledge. PVA also notified the Board that it was not accepting the Appellant's appointment. Accordingly, the Appellant is unrepresented before VA. In April 2021, the Board remanded this appeal to the RO for additional development A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board again directed the RO to attempt to obtain any outpatient treatment records for the Veteran from the former U.S. Naval Hospital, Subic Bay, Republic of the Philippines (USNH Subic Bay), dated between January 1, 1956, and January 1, 1992, pursuant to the most recent remand of this appeal by the United States Court of Appeals for Veterans Claims (Court). Additional records were associated with the claims file in September 2021. After the RO determined that the outpatient treatment records for the Veteran from USNH Subic Bay dated between January 1, 1956, and January 1, 1992, could not be located and were unable for review, it advised the Appellant of this fact in October 2021 correspondence. The RO also requested that she provide any relevant records in her possession. There is no record of a response from the Appellant. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board acknowledges that this appeal has been remanded repeatedly by the Court. The RO has documented its exhaustive efforts to attempt to obtain any outpatient treatment records for the Veteran from USNH Subic Bay dated between January 1, 1956, and January 1, 1992, pursuant to the Court's multiple remands. As outlined in the October 2021 letter sent to the Appellant, the RO's efforts to obtain these records began in April 2005, or more than 16 years ago, when it first requested these records from the National Personnel Records Center in St. Louis, Missouri (NPRC). Additional requests for these records were submitted to the NPRC (pursuant to multiple remands from the Court and the Board) in August and October 2013, December 2016, August and October 2017, and in September 2021. The NPRC responded to the RO's requests by informing VA that no such records were available in January 2006, November 2013, and in December 2017. There does not appear to be any other development requests which the RO reasonably could be expected to undertake in order to attempt to obtain any outpatient treatment records for the Veteran from USNH Subic Bay dated between January 1, 1956, and January 1, 1992. The Board applauds the exhaustive and detailed efforts undertaken by the RO to comply with VA's duty to assist the Appellant in this appeal. Given the foregoing, the Board also is hard pressed to conclude that the Court will find that VA did not comply with the duty to assist the Appellant in this appeal. To hold otherwise (i.e., that VA did not comply with the duty to assist the Appellant in this appeal) in light of the voluminous evidence to the contrary simply beggars belief. The Board also notes that, in an April 2013 remand, it directed that the RO contact the Appellant and request that she identify the date(s) that the Veteran allegedly was treated at Clark Air Force Base Hospital, the Republic of the Philippines ("Clark AFB Hospital"). The Board further directed that the AOJ obtain a medical opinion regarding the contended etiological relationship between the cause of the Veteran's death and active service. The RO sent a letter to the Appellant in August 2013 requesting her assistance in identifying the date(s) of the Veteran's treatment at Clark AFB Hospital. There is no record of a response from the Appellant. The Board notes in this regard that the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran [or Appellant] wishes help, he [or she] cannot passively wait for it in those circumstances where he [or she] may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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 outpatient treatment records for the Veteran from USNH Subic Bay dated between January 1, 1956, and January 1, 1992, do not exist and further efforts to obtain these records would be futile. In determining whether a medical opinion is warranted in a claim for DIC under 38 U.S.C. § 1318 (or a claim of service connection for the cause of the Veteran's death), VA must determine if such opinion is "necessary to substantiate the claim" or whether, instead, "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 36 years after his service separation of cardiorespiratory failure due to cardiovascular failure. There is no medical evidence of continuity of symptoms or competent opinion of a nexus between the Veteran's fatal cardiorespiratory failure due to cardiovascular failure and any incident of service. It also is pertinent to note that, at the time of the Veteran's death, service connection was not in effect for any disabilities. There is no competent evidence, other than the Appellant' 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 cardiorespiratory problems prior to his death. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); 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 cardiorespiratory failure due to cardiovascular failure and active service "would aid in substantiating the claim." See DeLaRosa, 515 F.3d at 1322, and Wood, 520 F.3d at 1348. Nevertheless, the Board notes that an opinion was obtained in January 2014 from a VA clinician concerning the contended etiological relationship between the cause of the Veteran's death and active service. Entitlement to service connection for the cause of the Veteran's death The Board finds that preponderance of the evidence is against granting the Appellant's claim of service connection for the cause of the Veteran's death. The Appellant contends that the cause of the Veteran's death is related to active service. She specifically contends that the Veteran's in-service treatment for a respiratory condition (pleurisy) caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. She alternatively contends that the Veteran's in-service ionizing radiation exposure as a participant in Operation CROSSROADS caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. The record evidence does not support her assertions regarding an etiological link between active service or any incident of service, to include in-service treatment for pleurisy, caused or contributed to his death several decades later. The available service treatment records show that, at his enlistment physical examination in August 1927, clinical evaluation of his heart, blood vessels, and respiratory system was normal. These findings were unchanged on subsequent periodic physical examinations in October 1933 and in November 1937. On outpatient treatment on December 9, 1939, the Veteran complained of an injury to the left rib cage after falling down a hatch 8 days earlier "with resultant possible pleural irritation." Physical examination showed severe pain present over the left chest with slight dry cough. He was transferred to the U.S. Naval Hospital, Pearl Harbor, Hawaii ("USNH Pearl Harbor"), for treatment. When admitted to USNH Pearl Harbor on December 9, 1939, the Veteran complained of pain the left chest. He reported falling down a hatch and being unconscious for a few minutes. "One week later while laughing [the Veteran] felt something snap and pain became worse. Pain now only on deep breathing." He denied any cough or night sweats. Physical examination showed normal ventilation through the nose, surgically absent tonsils, a few palpable anterior cervical glands, equal expansion and normal percussion in the thorax, tenderness over the 8th rib at the mid-axillary line on the left side, increased breath sounds over the left lung base, and a few rales on deep breathing on the left base mid-axillary line. X-rays showed no evidence of fracture and no evidence of thickened pleura or fluid. The radiologist's impression was pleurisy as a "result of injury." The Veteran was advised to rest. The diagnosis on admission was acute fibrinous pleurisy. The diagnosis was changed to chest contusion on December 15, 1939. He was sent back to full duty on January 3, 1940, with a note that his was a "[c]ase of probable separation of costochondral junction resulting in a traumatic pleuritis. Treatment symptomatic." On periodic physical examination in November 1940, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. These findings were unchanged on subsequent periodic physical examination in October 1944. A chest x-ray taken in May 1948 was negative. On periodic physical examination in November 1948, clinical evaluation of the Veteran's heart and blood vessels and respiratory system was normal. These results were unchanged on subsequent periodic physical examination in November 1951. Chest x-rays taken in August 1953, July 1954, and in April and December 1955 all were normal. On periodic physical examination in May 1955, clinical evaluation of the Veteran was completely normal. A chest x-ray was negative. A chest x-ray taken in March 1956 was essentially negative. At his separation physical examination in June 1956, clinical evaluation of the Veteran was normal except for several scars. A chest x-ray was normal. The post-service evidence also does not support granting the Appellant's claim of service connection for the cause of the Veteran's death. It shows instead that, although the Veteran was treated for a respiratory condition immediately prior to his death, the cause of his death is not related to active service or any incident of service. The post-service evidence shows that the Veteran was hospitalized at USNH Subic Bay from January 22, 1990, to February 15, 1990, after being admitted for aspiration pneumonia. Physical examination showed he was comatose and in moderate to severe respiratory distress, clear sinus turbinates, a very dry throat, harsh breath sounds in the lungs, equal expansion in the lungs, rhonchi in the left lobe, and "diffuse wheezes heard all over lung field. The admission diagnoses included aspiration pneumonia. The final diagnoses included aspiration pneumonia, resolved, mild exacerbation secondary to aspiration pneumonia, and chronic obstructive pulmonary disease. A review of the Veteran's death certificate shows that he died on October [REDACTED], 1992, in the Philippines. The immediate cause of the Veteran's death was listed as cardiorespiratory failure. The underlying cause of death was listed as cardiovascular failure. In a July 2002 letter to the RO, the Appellant asserted that the Veteran was exposed to ionizing radiation while on active service. Attached to the Appellant's letter to the RO was a copy of a letter from the DTRA to the Appellant dated in May 2002 which confirmed that the Veteran participated in Operation CROSSROADS while on active service. His total ionizing radiation dose exposure was 0.275 rems according to information provided to the Appellant by the DTRA and forwarded to the RO in July 2002. In statements on her October 2004 notice of disagreement and December 2004 substantive appeal, the Appellant asserted that the cause of the Veteran's death was related to active service, including as due to ionizing radiation exposure. She specifically contended that the cause of the Veteran's death was related to active service on a presumptive service connection basis due to his in-service exposure to ionizing radiation while a participant in Operation CROSSROADS. In a January 2014 opinion, a VA physician stated that he had reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. This physician opined that it was less likely than not that the cause of the Veteran's death was related to active service. The rationale for this opinion was that, although the Veteran had been diagnosed as having acute fibrinous pleurisy in 1939, his service treatment records showed no "residual lung or pleural abnormalities after his injury in 1939. The pleurisy due to an injury as shown by succeeding physical exam findings and chest x-ray results was cured." The rationale also was that, without "any [other] lung or chest abnormality before his retirement," the Veteran's in-service injury and pleurisy was less likely than not related to the cause of his death several decades later. The rationale further was that there was no evidence of any residuals of the pleurisy experienced by the Veteran in 1939 on subsequent examinations. The Appellant has contended strenuously that the cause of the Veteran's death is related to active service, including as due to ionizing radiation exposure. The record evidence does not support her assertions regarding an etiological link between the cause of the Veteran's death and active service or any incident of service. It shows instead that, although the Veteran presumably was exposed to ionizing radiation while a participant in Operation CROSSROADS during active service, the cause of his death is not related to service or any incident of service, including as due to his acknowledged in-service ionizing radiation exposure. The Board notes in this regard that DTRA confirmed the Veteran's participation in Operation CROSSROADS during active service. Thus, he is considered a radiation exposed Veteran who participated in radiation risk activity while on active service. See 38 C.F.R. § 3.309(d)(3). The cause of his death in this case, cardiorespiratory failure due to cardiovascular failure is not among those diseases for which service connection is available on a presumptive basis for radiation exposed Veterans due to participation in radiation risk activity, however. See 38 C.F.R. § 3.309(d)(2). The Appellant does not contend, and the evidence does not show, that, during his lifetime, the Veteran experienced any of the "radiogenic" diseases listed in § 3.309(d)(2) for which service connection is available on a presumptive basis for radiation exposed Veterans due to participation in radiation risk activity. Id. Because all of the criteria for service connection for a claimed disability or injury based on in-service ionizing radiation exposure have not been met, the Appellant's claim of service connection for the cause of the Veteran's death on a presumptive basis due to ionizing radiation exposure must be denied. See also 38 C.F.R. § 3.311(b). The Appellant also is not entitled to service connection for the cause of the Veteran's death on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. Although her assertions are not a model of clarity, it appears that the Appellant contends that the Veteran's in-service hospitalization for pleurisy in 1939 caused or contributed to his death from cardiorespiratory failure due to cardiovascular failure several decades later. The record evidence does not support the Appellant's assertions regarding an etiological link between the cause of the Veteran's death and active service. It shows instead that, although the Veteran complained of and was treated for pleurisy in 1939, this respiratory condition resolved with in-service hospitalization and did not reoccur. The Board again observes that the Appellant has asserted repeatedly that the Veteran was treated at Clark AFB Hospital for an unidentified condition which, in her view, caused or contributed to his death. As noted elsewhere, however, she failed to provide the Veteran's alleged treatment dates at Clark AFB Hospital despite being requested to do so by the Court, the Board, and the RO. Thus, the Board is unable to determine what relevance, if any, these alleged records have to the Appellant's claim. The Board also finds that, given the Appellant's failure to cooperate with VA, her argument concerning the Veteran's alleged Clark AFB Hospital records will not be considered further. See Wood, 1 Vet. App. at 193. The Board also observes again that VA has complied with the duty to assist in attempting to obtain records from USNH Subic Bay. Critically, the VA physician opined in January 2014 that it was less likely than not that the Veteran's in-service pleurisy caused or contributed to his death. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Appellant finally has not identified or submitted any evidence demonstrating entitlement to service connection for the cause of the Veteran's death. In summary, 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.