Citation Nr: 21076453 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-26 530 DATE: December 23, 2021 ORDER Service connection for the cause of death is denied. FINDINGS OF FACT 1. During his lifetime, the Veteran had the following service-connected disabilities: posttraumatic stress disorder, prostate cancer, tinnitus, bilateral hearing loss, and erectile dysfunction. Service connection was not in effect for any other disability, to include chronic obstructive pulmonary disease. 2. The cause of the Veteran's death was chronic respiratory failure. 3. A service-connected disability did not cause or contribute materially or substantially to the Veteran's death, combine with another disorder to cause his death, or aid or lend assistance to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310 (2012); 38 C.F.R. §§ 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the United States Navy from February 1959 to April 1971 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon and two Purple Heart Medals. The Veteran died in April 2017. The appellant is the surviving spouse and the RO granted substitution in November 2017. This matter comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in January 2016. Rating decisions denying service connection for the cause of death were issued in August 2017. A Statement of the Case (SOC) in June 2018 denying service connection for the cause of death. The appellant perfected an appeal by submitting a timely VA Form 9 in May 2018. The appellant, her son, and her representative appeared in an April 2021 hearing. The issue was previously before the Board. In July 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain an addendum VA medical opinion discussing the contribution, if any, of the Veteran's service-connected disabilities or ischemic heart disease (IHD)/coronary artery disease (CAD), to his cause of death/chronic obstructive pulmonary disease (COPD). In September 2021, the AOJ obtained an addendum medical opinion that diagnosed the Veteran as having CAD prior to his death and opining that the Veteran's service-connected disabilities, and CAD, were less likely than not to have contributed to his cause of death. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, a supplemental statement of the case (SSOC) was issued in November 2021. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Service connection for the cause of death The appellant contends that the Veteran was diagnosed with ischemic heart disease (IHD) and/or coronary artery disease (CAD) prior to death and that either or both conditions contributed to his cause of death. In the alternative, the appellant contends that the Veteran's COPD was caused by service, to include exposure to herbicide agents. The cause of a Veteran's death will be considered to be due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not enough to show that it causally shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In April 2017, the Veteran died, and the immediate cause of death listed in the certificate issued on April 10, 2017 was chronic respiratory failure. On September 20, 2017, a second death certificate was issued with "history of exposure to herbicides in Vietnam per Veterans Administration" as a condition leading to the primary cause of death. The file contains highlighted excerpts received in May 2021 from VA and private medical facilities, many dated in 2016 associated with a period of hospitalization for an acute COPD and pneumonia episode with a possible MRSA infection. There are several history notations of CAD, IHD, or congestive heart failure but no clinical notes of when diagnosed and treated. A highlighted section of a private hospital laboratory report indicated that a test for elevated serum cardiac troponin may be associated with ischemic cardiac injury but also with many other conditions. However, the test value recorded for the Veteran was low, below the range indicating a myocardial infarction. Therefore, the note had no applicability to the Veteran. There was also a February 2017 listing of a prescription medication for heart failure. In November 2017, the VA examiner stated that "although CAD is infrequently noted in his past medical history list, definitive testing for that condition is not identified," dismissing the possibility of CAD and opined that "diagnosis is not warranted." The VA examiner ultimately based her opinion on the lack of diagnosis of IHD and did not directly discuss the appellant's contention that IHD caused or contributed to the Veteran's COPD and whether COPD caused respiratory failure. In July 2021, the Board found that additional assessment of whether the Veteran's possible IHD could have contributed to his cause of death was necessary and that the November 2017 VA examination was inadequate. In September 2021, a VA physician reviewed the Veteran's file, summarized multiple entries from VA and private facilities in detail, and opined that it was less likely than not that the Veteran's CAD, or any other of his service-connected disabilities contributed to his cause of death. As rationale, the examiner stated that the medical evidence of record shows that the Veteran died as a result of end stage COPD from his COPD-induced pulmonary hypertension. The examiner than stated that there was no evidence that the Veteran's non-obstructive CAD contributed to the Veteran's death and that his pulmonary hypertension was due to his COPD. His COPD, in turn, was caused by the Veteran's long history of smoking. The examiner then stated that there was no medical evidence of the Veteran being diagnosed as having IHD and that a chest CT scan only revealed non-obstructive CAD. The physician evaluated multiple test results and found that that the Veteran did not have troponins. The examiner noted that an examination for troponin noted that elevated cardiac troponin may be seen in conjunction with primary ischemic cardiac injury. The examiner further stated that the Veteran's heart failure was due to COPD-induced pulmonary hypertension. COPD, the examiner added, was not due to CAD but rather smoking and that the Veteran's CAD was asymptomatic. In December 2021, the appellant's representative submitted excerpts of medical literature showing a correlation between exposure to herbicide agents and COPD as well as an increased morbidity from COPD. Although the claim of service connection for COPD was previously denied in a December 2004 rating decision, not reopened in August 2006, and the Veteran did not appeal the decisions within the applicable time period, the Board will address the appellant's contention in the context of the claim of service connection for the cause of death. As an initial matter, COPD is not among the disabilities listed in 38 C.F.R. § 3.309(e) and therefore service connection cannot be granted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e); 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). Service connection, however, may still be granted on a direct basis even if it is not granted on a presumptive basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board, however, finds that there is no competent, credible and probative medical opinion of record suggesting that the Veteran's COPD was caused by his service. To the contrary, the medical evidence of record, as discussed by the September 2021 VA examiner, shows that the Veteran's COPD was most likely caused by his smoking. Moreover, the medical literature submitted by the appellant's representative do not address causation and they are too generic to have any probative value in the Veteran's specific case. See, e.g., Mattern v. West, 12 Vet. App. 222, 228 (1999) (generic texts, which do not address the facts in this particular case with any degree of medical certainty, do not amount to competent medical evidence). The representative contends that these studies show that the Veteran's exposure to herbicide caused his respiratory disease. The representative is not competent to provide medical opinions that apply research to the Veteran's case, and the excerpts suggest only statistical elevated risk factor, not causation and do not address this Veteran's complete medical history including the history of smoking. The Board is cognizant that there is a death certificate, issued 5 months after the original death certificate, listing "history of exposure to herbicides in Vietnam per Veterans Administration" as a cause of death following "chronic respiratory failure." There is, however, no medical opinion associated with the death certificate and there is also no rationale supporting how "history of exposure to herbicides in Vietnam per Veterans Administration" contributed to the Veteran's death. The phrasing "per Veterans Administration" also suggests that the cause of death was added without review of the medical evidence by a medical practitioner. Bare transcription is not transformed into competent medical evidence simply because it was transcribed by a medical professional or on a medical document. LeShore v. Brown, 8 Vet. App. 406 (1995). Even if "history of exposure to herbicides in Vietnam per Veterans Administration" was an opinion by a medical practitioner, the Board finds it inadequate as it is not supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, the Board has carefully considered the evidence of record, and after so doing, concludes that the most probative evidence reflects that the criteria for entitlement to service connection for cause of death have not been met. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5356 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, Associate 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.