Citation Nr: 21007489 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-08 827 DATE: February 9, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in April 1991, at the age of 43; the immediate cause of death on his death certificate was sepsis, due to or as a consequence of end stage liver condition, alcoholism; multiple system organ failure due to renal disease and cardiac arrest also contributed to the Veteran’s death. 2. At the time of the Veteran’s death, service connection was not in effect for any disability. 3. Sepsis and liver disease were not manifested during service or until many years thereafter and is not shown to be related to any incident during service, including herbicide exposure. 4. No disease that caused or contributed to the Veteran’s cause of death is shown to have been related to his service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1965 to April 1969 and from July 1969 to December 1980, to include service in the Republic of Vietnam. He died in April 1991; the appellant is his surviving spouse. The appellant testified at a videoconference hearing before the undersigned in December 2019. This matter was before the Board in March 2020 when it was remanded for additional development, The appellant essentially contends that the Veteran’s exposure to herbicide agents in service caused heart disease, which in turn caused cardiac arrest, and ultimately death, in April 1991. See October 2016 Notice of Disagreement and December 2019 hearing transcript. The record includes the certificate of death showing that the Veteran died in April 1991, at the age of 43. The immediate cause of death was sepsis, due to or as a consequence of end stage liver condition, alcoholism. Multiple system organ failure due to renal disease and cardiac arrest contributed to the Veteran’s death. At the time of the Veteran’s death, he was not service connected for any disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cardiovascular-renal disease, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service personal records demonstrate that the Veteran had service in the Republic of Vietnam during the Vietnam Era. As such, the Veteran is presumed to have been exposed to herbicidal agents such as Agent Orange, during service. The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied. These include such diseases as ischemic heart disease. 38 C.F.R. § 3.309(e). Aside from these presumptive provisions, service connection might be established by satisfactory proof of direct service connection. See Combee v. Brown, 34 F.3rd 1039 (Fed. Cir. 1994). In order to establish service connection for the cause of the Veteran’s death, the evidence must show that a disease or disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 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. Service-connected diseases or injuries involving active processes affecting vital organs should receive full consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran’s service treatment records (STRs) show some elevated blood pressure readings. See March 1982 STR (noting a history of blood pressure readings to 150/110). A February 1982 EKG was normal. Additionally, a November 1985 retirement examination revealed an abnormal heart evaluation, to include skipped heart beats. EKG showed premature ventricular contractions. The Veteran’s death certificate shows he died in April 1991 while an inpatient at a private hospital. In December 2019, the appellant stated that the records of this hospitalization were no longer available. She did not respond to VA’s April 2020 request for assistance in obtaining the Veteran’s terminal treatment records. In a January 2020 private medical opinion, Dr. JN stated that according to the appellant, the Veteran died at a young age from “a coronary/cardiac arrest.” He also was found to have significant liver disease and it appeared that he was exposed to “several potential toxic agents” in service. The appellant told Dr. JN that she believed her husband had suffered from posttraumatic stress disorder which he “treated” with alcohol. Based on this information, Dr. JN opined that the Veteran’s “alcohol use ultimately contributed to his death at an early age. It is also evident that he had heart disease as given his cause of death, listed as cardiac arrest.” Pursuant to the Board’s remand, the Veteran’s medical records were reviewed by a VA physician in June 2020 in order to ascertain the principal and contributory causes of the Veteran’s death, and whether it was at least as likely as not that Veteran had heart disease at the time of his death, to specifically include ischemic heart disease and hypertension. Finally, the examiner was asked whether it was at least as likely as not (a 50 percent or greater probability) that any of the principal or contributory causes of the Veteran’s death were related to his active duty service, to include any heart problems noted therein. After review of the evidence of record, including the STRs and the January 2020 opinion from Dr. JN, the VA examiner opined that it was not possible to determine the principal and contributory causes of death other than what was noted on the death certificate. In this regard, the examiner noted that the records from the Veteran’s terminal hospitalization were not available. The examiner stated: It would appear that sepsis was the immediate cause of [the Veteran’s] death. It does appear that the sepsis was at least as likely as not related to his end-stage liver disease secondary to alcoholism. When the liver begins to fail like this, and one develops sepsis, multi-system organ failure to include kidney failure and cardiac arrest are not uncommon sequelae. We do not have any competent medical evidence that the [V]eteran had coronary artery disease or ischemic heart disease of any sort prior to his death. The [V]eteran was 48 years of age when he died . . . . less likely than not he would have had manifestations of coronary artery disease or ischemic heart disease at that point in his life. He had signs of hypertension in the service but there was no indication this was a chronic problem or one that was not well controlled. Additionally, the examiner stated that sepsis-related cardiac arrest was a relatively common occurrence with especially poor outcomes. He pointed to research that essentially showed that sepsis could contribute to cardiac arrest. Finally, the examiner opined that it was less likely than not the Veteran had heart disease at the time of his death, to include ischemic heart disease and hypertension. The examiner explained that although hypertension was noted in service, there was no indication that it persisted beyond service. He also noted that there was never any evidence of coronary artery disease or ischemic heart disease while the Veteran was on active duty or thereafter. Regarding the opinion provided by Dr. JN, the VA examiner stated that the private physician “erroneously indicated that the [V]eteran died of cardiac arrest, not indicating that the primary cause of death was noted to be sepsis. He also indicated the [medical] records are incomplete.” The examiner added: It is less likely than not that the [V]eteran’s cause or contributory causes of death are related to his active-duty service to include any heart problems. The [V]eteran appears to have died secondary to sepsis that appears to have been cause by or related to his liver disease/ alcoholism. There was no indication that he had any service-connected conditions that would have caused her contributed to his death to include heart problems or any mental health disorder. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993). While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician’s statement, as it will do in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). There is no evidence of sepsis due or liver disease, which ultimately led to the Veteran’s death, either in service or for many years thereafter. Indeed, the appellant has not contended that the Veteran’s sepsis or liver disease started in service. Again, the appellant’s main contention is that the Veteran’s exposure to herbicide agents in service caused heart disease, which in turn caused cardiac arrest, and ultimately his death. In support of this claim, private physician provided an opinion in January 2020 that it was “evident that [the Veteran] had heart disease as given his cause of death, listed as cardiac arrest.” After reviewing this opinion, the Board found that the rationale was not sufficient and a medical records review for a medical opinion by VA was undertaken. That June 2020 opinion, which found that the cause of the Veteran’s death was sepsis related to end-stage liver disease due to alcoholism, and there was no evidence that he had heart disease at the time of his death, is more probative than the January 2020 private medical opinion. The VA medical opinion specifically addressed each point in the earlier private medical opinion and found several discrepancies, as noted above. The VA examiner also cited to medical evidence and medical literature and provided a thorough explanation for the rationale provided. As such, the Board finds that the VA examiner’s opinion to be the most persuasive in the record. Although the appellant believes the Veteran’s cause of death is related to his military service, she is not competent to provide a nexus regarding this issue. The questions involved in this case, which include whether the Veteran had a heart disability at the time of his death, including ischemic heart disease, or whether he had a service-related psychiatric disability, are medically complex, as they are not capable of resolution by lay observation alone and require knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examiner’s opinion. As such, the Board finds that service connection for the cause of the Veteran’s death is not warranted and the appeal must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fletcher, Kathleen 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.