Citation Nr: 21009640 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-38 432A DATE: February 23, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDING OF FACT 1. The Veteran died in September 2013, and his Certificate of Death lists the immediate cause of death as acute respiratory failure secondary to septic shock. Other significant conditions contributing to death are listed as Myeloma, Lymphoma, renal failure, urinary tract infection (UTI), benign prostatic hyperplasia (BPH), hematuria, and pneumonia. 2. At the time of the Veteran’s death, service connection was established for bilateral hearing loss and tinnitus. 3. The preponderance of the evidence is against the finding that the Veteran’s death was proximately due to, or the result of, his active service. 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. § §§ 1110, 1310, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from October 1970 to October 1982. The Veteran died in September 2013. The Appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the November 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for the cause of the Veteran’s death. The Appellant’s Notice of Disagreement (NOD) was received in July 2014. The Statement of the Case was issued in October 2014 and the Appellant’s VA Form 9, substantive appeal to the Board was received in November 2014. In November 2018, the Board remanded the claim for further development and adjudication. Entitlement to service connection for the cause of the Veteran's death. The Appellant seeks service connection for the cause of the Veteran’s death and asserts that the Veteran was exposed to asbestos in service, and as a result developed a chronic breathing condition which ultimately caused his death. In her November 2014 VA Form 9, the Appellant also contends that the Veteran developed myeloma and lymphoma as a result of his in-service exposure. A September 2013 Death Certificate lists the Veteran’s immediate cause of death as acute respiratory failure secondary to septic shock. Other significant conditions contributing to death were listed as Myeloma, Lymphoma, renal failure, UTI, BPH, hematuria, and pneumonia. VA death benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5, 3.312. To establish service connection for the cause of a veteran’s death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. To be considered a principal cause of death, a service-connected disability must have been singly or jointly with some other condition the immediate or underlying cause of death or have been etiologically related to the cause of death. For a service-connected disability to be a contributing cause, it must have substantially or materially contributed to a veteran’s death; it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. A contributory cause of death is inherently one not related to the principal cause. 38 U.S.C. § 1310; 38 C.F.R. § 3.312 (b), (c). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s service treatment records (STRs) contain several diagnoses and treatments for an upper respiratory infection (URI), bronchitis, and breathing problems. An August 1971 in-service annual examination report indicated no problems. Examination of mouth, throat, lungs, chest was normal. A negative chest x-ray was noted. A July 1972 note within the Veteran’s STRs indicates that he had nasal congestion, fever, soreness, chills, nasal discharge, wheezing, and bilateral rhonchi. He was diagnosed with acute bronchitis. A follow up note indicated that there was not much improvement, but the Veteran was forced to work full duty. The Veteran was diagnosed with acute bronchitis in July 1973. A September 1974 report of medical history indicates that there were no current problems and the Veteran did not have asthma, shortness of breath, pain in chest, or chronic cough. The Veteran was diagnosed with a URI in May 1974 and June 1975. The Veteran reported having sinus trouble in a November 1975 questionnaire. A November 1976 note within the Veteran’s STRs indicates that the Veteran was seen for wheezing in the right lung and was noted to have a viral URI or bronchitis. There was no follow up care. The Veteran was diagnosed with a URI in January 1979, April 1979, and May 1979. The Veteran was noted to have shortness of breath in February 1980 and diagnosed with a URI in November 1980. A March 1981 treatment note indicates that the Veteran had a viral URI. A September 1981 treatment note indicates that the Veteran reported a runny nose and productive cough. He was diagnosed with a URI. A November 1981 treatment note indicates that the Veteran reported productive cough and malaise for 24 hours. He was noted to have rales and rhonchi in chest and diagnosed with URI/bronchitis. A September 1982 note within the Veteran’s STRs indicates that the was seen for a runny nose and productive cough. He was diagnosed with a URI. A January1982 note within the Veteran’s STRs indicates that the Veteran complained of shortness of breath, chest pain, coughing, and wheezing. His chest was noted to have musical rhonchi. His chest x-rays were normal, and lungs were clear. He was diagnosed with bronchitis. The Veteran was seen for bronchitis six times in February 1982. A February 1982 x-ray report indicating that the Veteran had bronchitis for two months with the examination revealing rales and rhonci in the lungs. A March 1982 follow up note indicates that the Veteran was seen for resolving asthmatic bronchitis and was feeling better. A June 1982 report of medical history at discharge indicates that the Veteran did not have asthma, pain or pressure in his chest, chronic cough, or shortness of breath. A July 1982 treatment note within the Veteran’s STRs indicates that he was coughing slightly the night before and more in the morning. The Veteran reported having tightness in his chest. He was noted to have scattered rhonci upon chest examination and diagnosed with a mild URI/bronchitis. An August 2002 VA treatment note indicates that he Veteran’s lungs and chest were clear on examination. A June 2005 VA treatment note indicates that the Veteran had acute symptoms, including clear nasal discharge and productive cough. His lungs were noted to be clear. He was diagnosed with a URI and acute bronchitis and prescribed medication. June 2005, June 2006, September 2006, November 2008 and December 2009 VA treatment notes indicate that the Veteran’s lungs were clear to auscultation. In April 2011, the Veteran testified at a Board hearing and indicated that he first experienced trouble breathing in service and had symptoms of coughing, wheezing, and bronchitis at discharge. He also testified that his breathing problems manifested after separation as a chronic condition with intermittent periods of coughing. The Veteran contended that his symptoms were attributed to in-service asbestos exposure. In April 2020, the VA produced a Medical opinion in this case. The VA examiner thoroughly reviewed the Veteran’s records, including all in-service treatment for breathing problems, bronchitis, or wheezing. The VA examiner also noted that the Veteran’s lungs were clear during an August 2002 VA examination as well as the June 2005 diagnosis of acute bronchitis. The VA examiner indicated that the Veteran had BPH and was treated for a UTI in 2006. The VA examiner then indicted that the Veteran had chronic renal insufficiency and proteinuria. The VA examiner indicated that the Veteran had an abdominal CT done for an evaluation which revealed a lytic lesion in the pelvis which ultimately led to a diagnosis of IgA Myeloma. The VA examiner noted that as part of this work up, the Veteran had a chest CT in September 2007 which showed a large bleb in the lower lobe, some small non-suspicious nodules, and basilar atelectasis. The VA examiner noted that there were no pleural plaques identified and that a May 2008 oncology exam showed clear lung. The VA examiner noted the Veteran’s lungs being clear during the December 2009 primary care exam. The VA examiner noted that there were no records submitted with respect to the Veteran’s terminal admission. The VA examiner reviewed the Veteran’s April 2011 hearing testimony and noted the Veteran’s testimony regarding the claimed asbestos exposure and respiratory symptoms. The VA examiner then summarized the findings from the Veteran’s death certificate and concluded that it is less likely than not that the Veteran’s death was related to underlying respiratory condition as opposed to the septic shock. The VA examiner noted that the opinion is based on a review of the evidence and relevant medical literature, and that the Veteran’s STRs indicate that he more likely than not had reactive airway disease which resolved. The VA examiner also noted that the Veteran’s post-discharge chest x-rays and CT scans do not show evidence of asbestos exposure and that the Veteran’s records do not show that the Veteran had any active ongoing respiratory condition at the time of his death, other than the pneumonia which was listed along with his other comorbid conditions. The VA examiner also indicated that individuals with cancer, such as the Veteran’s, are susceptible to infections that can produce septic shock and associated respiratory failure. Of note, the RO made multiple attempts to obtain all relevant outstanding records from the Appellant. An August 2014 letter to the Appellant requested additional records in support of her claim. The Appellant did not respond to the August 2014 letter. Pursuant to the November 2018 remand directives, a January 2020 letter was sent to the Appellant likewise requesting all medical records, medical literature, and/or private opinions in support of her claim. The Appellant did not respond to the January 2020 letter. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA’s duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Accordingly, there has been substantial compliance with the November 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d Dyment v. Principi, 287 F. 3d 1377 (2002). Based on a review of the entire record, the preponderance of the evidence is against the claim. The Veteran’s cause of death is not proximately related to, or the result of his active service or his service-connected disabilities. The Veteran’s STRs do not reflect complaints, diagnosis, or treatments for any of the disabilities listed in the Certificate of Death. While the Veteran was treated for several URIs and acute bronchitis during service, the probative evidence of record indicates that the acute respiratory failure which caused his death was not related his in-service breathing problems or an underlying breathing disability. Instead, the evidence shows that the acute respiratory failure was related to septic shock. Specifically, the April 2020 VA medical opinion indicates that the Veteran likely had reactive airway disease in service which resolved after service and did not manifest into an underlying breathing disability. The opinion indicates that the Veteran had cancer, which made him susceptible to infections which cause septic shock and the associated acute respiratory failure. The VA examiner indicated that there was no evidence of the Veteran having any problems related to asbestos exposure and that the only underlying breathing problem present at the time of death was pneumonia, which was comorbid with other disabilities listed in his Certificate of Death. Moreover, the VA examiner indicated that the disabilities listed in the Veteran’s Certificate of Death, such as cancer and BPH, had their onset several decades after service, having been diagnosed around 2006 and 2007. The VA examiner was unable to link the disabilities to service. The April 2020 VA medical opinion contains a comprehensive review of the Veteran’s medical history as well as a complete rationale for all conclusions reached. Thus, it is afforded the highest probative value in this case. As the April 2020 VA medical opinion confirms, the Veteran’s acute respiratory failure was caused by septic shock, and not any underlying breathing disability, or any other disability related to service. The Veteran’s medical records corroborate the findings that the Veteran did not have an underlying breathing disability related to service and did not have health problems related to asbestos exposure. Namely, the Veteran’s VA treatment records only show a single post-discharge instance of acute (rather than chronic) bronchitis in June 2005, which was almost 25 years after service. All subsequent treatment records indicate that the Veteran’s lungs were clear, without any evidence of asbestos exposure. Moreover, the Veteran’s Certificate of Death lists acute respiratory failure being secondary to septic shock and not a chronic breathing disability. Of note, service connection for a breathing disability was administratively denied following the Veteran’s passing as the Appellant’s substitution was not timely. The Appellant did not contest the administrative decision effectuating the denial. With respect to the Appellant’s assertion that the Veteran’s cancer was caused by in-service asbestos exposure, the evidence is to the contrary. As previously noted, the Veteran’s VA treatment records contain multiple notations indicating clear lungs, and the April 2020 VA medical report indicates that there was no evidence of health problems linked to asbestos exposure. As there is no evidence of the Veteran having health problems related to asbestos, service connection cannot be granted under this theory of entitlement. Although the Appellant sincerely believes that the Veteran’s in-service breathing problems and/or claimed asbestos exposure contributed to the cause of death, she is not competent to provide a medical opinion in this case. The diagnosis and etiology of the cause of the Veteran’s death cannot be competently addressed by the Appellant as a lay person based on personal observation, such as visual observation or by any other senses. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing and interpretation of medical records and studies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). (Continued on the next page)   In sum, the medical evidence shows that the Veteran died from multiple disorders that were not shown to be related to active service. Service connection had not been established for any of those disabilities at the time of his death. There is no credible medical evidence to link his death with active service or any incident therein. As such, a preponderance of the evidence is against the appellant’s claim and the benefit-of-the-doubt doctrine is not applicable. Service connection for the cause of the Veteran’s death is not warranted. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.