Citation Nr: 21076022 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 10-09 777 DATE: December 22, 2021 ORDER Service connection for the Veteran's cause of death is denied. FINDING OF FACT There is no probative medical evidence that indicates the Veteran's congenital heart disease contributed substantially or materially, nor combined, aided, or lent assistance to the production of his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1310, 1311 (West 2014); 38 C.F.R. §§ 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1979 to March 1980. The Veteran died in 2008 and his spouse is the Appellant. The procedural history of this claim is outlined in the May 2014, June 2017, and July 2020 Board of Veterans' Appeals (Board) remands. Most recently the claim was remanded for evidentiary development and new addendum opinions. All actions ordered by the remand have been accomplished. Dependency and Indemnity Compensation (DIC) In a claim of service connection for a veteran's cause of death, i.e., Dependency and Indemnity Compensation (DIC), evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. DIC is also awarded if the veteran's death can be service connected. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. That is, service connection for the cause of a veteran's death is granted, postmortem, and DIC is awarded, if the evidence shows that a fatal disease or injury was actually incurred or aggravated in service, though service connection had not been granted for the disease or injury prior to a veteran's death, was either the principal or a contributory cause of death. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran's death, due to a cause not already service-connected, the evidence must show that a disability that either was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1101, 1112, 1113, 1310; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (a), 3.312 (a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312 (b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c). As a general matter, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a [claimant] must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection generally may not be granted for congenital or developmental defects, as they are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9. However, the VA Office of General Counsel has held that service connection may be granted for a congenital disease on the basis of in-service aggravation. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985)). VA General Counsel's opinion indicated that there is a distinction under the law between a congenital or developmental "disease" and a congenital or developmental "defect" for service connection purposes. A "disease" considered by medical authorities to be of congenital, familial (or hereditary) origin by its very nature pre-exists claimants' military service, but that service connection for such diseases could be granted only if manifestations of the disease in service constituted aggravation of the condition. See also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); but see VAOPGCPREC 67-90 (July 18, 1990) (finding that "service connection may be granted for hereditary diseases which either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service."). If the disorder is considered a congenital or hereditary "defect," service connection may be granted for a disability resulting from any superimposed disease or injury. 38 C.F.R. §§ 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for the Veteran's cause of death The Veteran's death certificate indicates that he died from sepsis, due to or as a consequence of "diffuse large cell lymphoma." The death certificate indicates that "[o]ther significant conditions contributing to death but not resulting in the underlying cause" were cardiomyopathy and chronic renal failure. The Appellant contends that the Veteran's heart condition, noted as a contributory cause of his death, is the result of either in-service aggravation of a preexisting congenital disease or an injury to a congenital defect. The Veteran's August 1979 report of medical history at induction indicates he denied heart trouble. His clinical heart evaluation was normal. In early 1980 the Veteran complained of dizzy spells. On evaluation he demonstrated a systolic murmur. A late January 1980 chest x-ray revealed the Veteran's heart was enlarged. In early February 1980 an EKG showed cardiac abnormalities. A subsequent chest x-ray in late February 1980 indicated the Veteran's heart size was normal. However, in March 1980 an echocardiogram revealed the Veteran had Barlow's Syndrome, a congenital heart disease. The Veteran was deemed fit for release from active duty without limitations. The Veteran was separated in March 1980. In October 2007 the Veteran was diagnosed with end-stage renal disease. As noted, the Veteran's death certificate indicates he died of sepsis and diffuse large cell lymphoma; with contributory conditions of cardiomyopathy and chronic renal failure. At a December 2013 Board hearing, the Appellant contended that the Veteran's military service aggravated his asymptomatic heart condition beyond the normal progression of the disease because the Veteran did not know that he had the condition until the rigors of military service led to symptoms that were eventually diagnosed as a congenital disease. Therefore, the Appellant contended, the Veteran's service activated his asymptomatic heart condition permanently. The Appellant testified that the Veteran's cardiac condition made treatment for his lymphoma difficult. In an October 2016 opinion, a VA cardiologist reviewed the Veteran's claims folder and opined the Veteran's cardiac condition was not related to service and did not significantly contribute to his death. The cardiologist opined that as a congenital disease the Veteran's condition did not begin in, was not related to, nor aggravated by service. In a November 2016 addendum, the same VA cardiologist explained that medical knowledge indicates that the congenital condition generally had a long period of being asymptomatic. The cardiologist observed that only if valve leakage became severe did it cause shortness of breath and fatigue. In addition, the examiner noted that the condition did not have its onset during service as it was a congenital disease that was present at birth and worsened over time. The examiner further explained that the Veteran's congenital disease did not begin in service but rather had a natural history of potentially progressively worsening over time. The examiner reiterated that the Veteran's condition was not aggravated by service. The examiner also explained that the Veteran's Barlow's disease did not contribute to his death unless he had demonstrated severe heart failure which did not occur in this Veteran's case. The examiner noted that the claims file did not contain serial echocardiograms to evaluate the full extent of damage the condition may have caused to his heart prior to his death. In an April 2021 medical opinion, a different VA examiner reviewed the Veteran's claims file and provided several opinions. With regards to what cardiac disabilities the Veteran demonstrated prior to his death, the examiner noted that the only cardiac disability shown in the Veteran's medical records was a minimal cardiac murmur. The examiner opined that it was less likely than not that any diagnosed cardiac disability had its onset during active service because Barlow Syndrome is a mitral valve prolapse, one of the most common heart valve abnormalities, and generally did not demonstrate with symptoms nor require treatment. The examiner noted that the condition can be associated with fatigue and/or palpitations. The examiner also opined that the Veteran's congenital disease was not aggravated by service because STRs did not document aggravation or permanent worsening during the Veteran's four months of active-duty service. With regards to the role that the Veteran's Barlow Syndrome had in his death, the examiner opined that it was unlikely that the Veteran's Barlow Syndrome materially or substantially contributed, aided, or lent assistance to the production of his death because Barlow Syndrome, as the most common heart valve abnormality, seldom resulted in death. The examiner reported that the Veteran's Barlow Syndrome was not of such a severity that it had material influence in accelerating his death. The examiner also opined that the Veteran's Barlow Syndrome did not cause or contribute to his cardiomyopathy because medical knowledge indicates that cardiomyopathy can cause Barlow Syndrome, but Barlow Syndrome was not a primary cause of cardiomyopathy. The preponderance of the evidence is against finding service connection for the Veteran's cause of death. There is no probative medical evidence that indicates the Veteran's congenital heart disease contributed substantially or materially, nor combined, aided, or lent assistance to the production of his death. The Appellant has continuously asserted throughout the appeal that the Veteran's Barlow Syndrome was permanently aggravated during service and eventually contributed to his death. The Appellant is competent to report observable symptomatology of the Veteran's condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Appellant has attempted to establish a nexus through her own lay assertions, the Appellant is not competent to offer opinions as to how the Veteran's Barlow Syndrome contributed to the Veteran's death. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Cardiac conditions require specialized training for determinations as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. Thus, the Appellant is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between the Veteran's in-service diagnosis of Barlow Syndrome and its relationship to his death. The claim for service connection for the Veteran's cause of death is denied. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.