Citation Nr: 21012554 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-61 768 DATE: March 4, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDING OF FACT Acute pulmonary embolism, chronic atrial fibrillation, coronary artery disease, hepatocellular carcinoma, or portal vein thrombosis did not manifest during service and are unrelated to service, and service-connected disabilities did not contribute substantially or materially to death, combine to cause death, or aid or lend assistance to the production of death. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1964 to December 1967. He died in March 2016. The Appellant is his surviving spouse. In April 2019, the Board denied the Appellant’s claim for service connection for the Veteran’s cause of death. The Appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court set aside the Board’s April 2019 decision and remanded the case for readjudication consistent with the Court’s decision. Specifically, the Court determined that the Board did not adequately consider the Appellant’s assertion that the Veteran’s multiple parachute jumps in service, including the accident that resulted in his TBI and seizure disorder, contributed to the development of his portal vein thrombosis. In November 2020, the Appellant’s claim was remanded by the Board once again. The Board remanded the claim for a VA examination considering whether the Veteran’s portal vein thrombosis may have been caused by his numerous in-service parachute jumps, to include the jump which resulted in significant injuries. That development having been completed, the claim is once again before the Board and will be adjudicated below. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent 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 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The death of a Veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one which contributed substantially or materially to cause of death or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for the Veteran's cause of death The Appellant seeks service connection for the Veteran’s cause of death. She contends that the Veteran’s service-connected disabilities caused or contributed to his death. At the time of his death, the Veteran was service-connected for a traumatic brain injury (TBI) and a seizure disorder, which were caused by a parachuting accident that occurred during service. The Appellant contends that due to the Veteran’s TBI and seizures, the Veteran was minimally ambulatory and could not avoid sitting for long periods of time, which she contends increased his risk of pulmonary embolism and blood clots. See VA Form 9. She further contends that the in-service injury which caused the Veteran’s TBI disability contributed to his venous thromboembolism. See VA Form 21-4138. The Veteran’s death certificate lists acute pulmonary embolism as the immediate cause of death; chronic atrial fibrillation and coronary artery disease were listed as underlying causes of death; and hepatocellular carcinoma and portal vein thrombosis were listed as conditions contributing to death but not resulting in the underlying causes of death. In a July 2015 medical note, a medical physician certified that the Veteran had a one year history of worsening bilateral claudication which caused him difficulty with walking. During a pre-surgery consultation for surgical intervention of bilateral leg claudication in January 2016, the Veteran described his bilateral leg pain as causing bilateral leg pain when walking greater than 100 yards. He also reported being very active, enjoying hunting and fishing, and household chores such as lawn mowing and snow removal, but that leg pain continued to interrupt his lifestyle. In his March 2016 notice of disagreement, the Veteran described the symptoms of his seizure disorder. He indicated that he had one minor seizure per week, which caused him to stay in bed for at least 15 to 20 minutes. He also indicated that he had a major seizure every four to six weeks, where he would black out. In August 2016, a private doctor, Dr. F., opined that the Veteran’s cause of death of pulmonary emboli in his lower extremities was at least as likely as not to be caused by a very sedentary lifestyle as a result of his TBI. In October 2017, a staff physician opined that the Veteran’s causes of death were not proximately due to or the result of the Veteran’s service-connected seizure disorder, TBI, or medication used to treat his service-connected conditions either individually or combined. The examiner reasoned that it was more likely any hypercoagulable blood condition that led to the pulmonary embolism was the result of the Veteran’s liver cancer and congestive heart failure. The examiner noted that the pulmonary embolism was the result of the liver cancer and congestive heart failure, common complications, and noted that the Veteran’s cancer left him weak and minimally ambulatory. In the Appellant’s November 2017 VA Form 9, she stated that the Veteran’s seizure disorder and TBI caused him to sit for long periods and left him unable to prevent blood clots from forming in his legs. In December 2020, a VA examiner provided an opinion regarding the relationship between the Veteran’s in-service parachute jumping and resultant TBI, and his portal vein thrombosis. The examiner opined that it was less likely than not that the Veteran’s portal vein thrombosis was due to any in-service injury or event, or to any service-connected condition. The examiner reasoned that the most likely cause of the Veteran’s portal vein thrombosis was his hepatocellular carcinoma. The examiner explained that direct invasion of the portal vein was most likely, but a tumor related hypercoagulable state may have contributed. In either event, the examiner opined that the portal vein thrombosis did not contribute directly to the Veteran’s death. He noted that there is no known relationship between leg trauma from parachute jumps and portal vein thrombosis, particularly not 50 years after the fact. The examiner also opined that other medical conditions, such as atrial fibrillation and coronary artery disease, were less likely than not due to any of the Veteran’s service-connected conditions, or to events while in service. The examiner reasoned that there was no physiologic basis to associate parachute injuries with heart disease. The Veteran had multiple well recognized cardiac risk factors that explained his coronary disease and atrial fibrillation as well as his peripheral arterial disease. The Veteran’s cardiac risk factors included hypertension, hyperlipidemia, smoking, and diabetes. The examiner acknowledged that the record included an August 2016 statement from a Dr. F. endorsing inactivity due to TBI and seizure disorder as leading to inactivity and thus to pulmonary emboli. The VA examiner opined that this was highly speculative; the record was far more supportive of extensive and advanced peripheral arterial disease as causing inactivity. The examiner found that it was very likely that congestive heart failure and advanced hepatocellular carcinoma contributed as well. The Veteran’s records did not indicate to the examiner that his TBI or seizures limited activity in any significant way. Rather, the examiner noted that he believed that there were likely multiple underlying contributors to the Veteran’s pulmonary emboli which originated from the legs or pelvis, not from the portal veins. Such contributors included: increased venous pressure due to congestive heart failure aggravated by atrial fibrillation, possible hypercoagulable state secondary to hepatocellular carcinoma, increased peripheral venous pressure secondary to cirrhosis and or hepatocellular carcinoma of the liver, chronic reduced level of activity secondary to CHF, coronary artery disease, peripheral vascular disease, and debilitating effect of hepatocellular carcinoma. In summary, the examiner determined that the medical record did not support that parachute jumps in service, or service-connected TBI and or seizure disease, as contributing in any meaningful way to any of the underlying disorders associated with the Veteran’s death. The Board finds that the weight of the evidence does not show that the Veteran’s cause of death was incurred in service, or that was his death was caused by his service-connected disabilities. As noted above, to establish service connection for the cause of a veteran’s death, the evidence must show that a service-connected disability either caused or contributed substantially or materially to cause death. However, the most competent and credible evidence does not show that the Veteran’s in-service parachute jumping nor his service-connected TBI and seizures caused his death. The Board acknowledges that there is an August 2016 positive nexus opinion in the Veteran’s record; however, that physician did not provide a rationale for his opinion that the cause of the Veteran’s death, pulmonary emboli in his lower extremities, was at least as likely as not caused by a very sedentary lifestyle as a result of his TBI. The physician provided a conclusory statement without an explanation. Moreover, there are highly probative October 2017 and December 2020 medical opinions of record which provide that the Veteran’s cause of death was less likely than not incurred in or caused by his period of service, or his service-connected disabilities. The October 2017 VA examiner determined that the Veteran’s cause of death was not related to his service-connected disabilities. The VA examiner provided an adequate rationale and considered the record in full. The December 2020 VA examiner opined that the Veteran’s medical conditions which caused his death such as atrial fibrillation and coronary artery disease were less likely than not due to the Veteran’s service-connected conditions, nor events in service; he notably considered the entirety of the Veteran’s medical history, and provided a detailed rationale. In addition, the December 2020 examiner addressed the positive August 2016 opinion, providing that the opinion was merely speculative and that the record was far more supportive of extensive and advanced peripheral arterial disease as causing inactivity. In response to the Court’s April 2020 memorandum decision, the Board also notes that the December 2020 examiner opined that it was less likely than not that the Veteran’s portal vein thrombosis was due to any in-service injury or event, or to any service-connected condition. The examiner opined that the portal vein thrombosis did not contribute directly to the Veteran’s death and he further noted that there is no known relationship between leg trauma from parachute jumps and portal vein thrombosis, particularly not 50 years after the fact. In consideration of the above, the Board assigns higher probative weight to the October 2017 and December 2020 VA examiners’ opinions and lower probative weight to the August 2016 opinion from Dr. F. While the Appellant has expressed her earnest belief that the Veteran’s cause of death was related to his service-connected disabilities or his active service, she is not competent to provide such an opinion. Likewise, while prior to his death the Veteran asserted a connection between his service-connected disabilities and his ambulatory state, he was not competent to provide an opinion relating such a state to the ultimate causes of his death. While sympathetic to the Appellant, the issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the medical findings from the VA opinions of record, which are supported by detailed rationales that are consistent with the other facts in the record and are unrebutted by any other probative medical opinions. Accordingly, the Board finds that the Appellant is not entitled to service connection for the Veteran’s cause of death and to that extent, the appeal is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.