Citation Nr: 21020982 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-07 797 DATE: April 9, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDING OF FACT The weight of the evidence is against a finding of a medical nexus between the Veteran’s cause of death and active service, including in-service exposure to dust and airborne particles. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1958 to March 1960. Unfortunately, he passed away in March 2014. The Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the July 2016 Department of Veterans’ Affairs (VA) Regional Office (RO) rating decision that denied service connection for the cause of the Veteran’s death. It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (West 2014). In this case, the Board has thoroughly reviewed all the evidence in the Veteran’s file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Entitlement to service connection for the Veteran's cause of death Service Connection for Cause of Death Criteria Dependency and Indemnity Compensation (DIC) 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. 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). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a). A principal cause of death is one in which a service-connected disability, 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 a service-connected disability contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal cause. 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. 38 C.F.R. § 3.312(c)(1). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA is responsible for determining whether the evidence supports the claim, with the appellant prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran’s death certificate lists the immediate cause of death as acute myocardial infarction. For the reasons discussed below, the Board finds that there is no medical nexus between the cause of the Veteran’s death and active service, including as due to exposure to dust and airborne particles. The Appellant appealed the denial of entitlement to service connection for the cause of the Veteran’s death and entitlement to Dependency and Indemnity Compensation (DIC) to the United States Court of Appeals for Veterans Claims (CAVC). In April 2020, this claim was remanded by CAVC for action consistent with the terms of the parties’ Joint Motion. This claim was remanded by the Board in July 2020 for clarification as to whether each physician had access to the Veteran’s STRs or medical treatment records prior to 2001 when writing their respective medical opinions. An addendum opinion was also obtained to reconcile those opinions and to discuss the nature and etiology of the Veteran’s cause of death, to include its potential relationship or correlation with the Veteran’s demolition and explosives duties and conceded exposure to dust and airborne particles in service. A private medical opinion, dated April 2016, from Dr. TS stated the Veteran, “previously worked as a 'Demolition Specialist' in the military. This may potentially be related to some of his health problems, including his hypertension, diabetes, and carotid artery plaque. It may also be related to his development of obstructive lung disease.” This provider subsequently stated that they did not have access to the Veteran's Service treatment records or medical treatment records prior to 2001 when submitting the medical opinion dated April 2016. The Board finds this opinion to be of diminished probative value for two reasons. First, the provider stated that the Veteran’s work as a Demolition Specialist “may potentially be related to some of his health problems…”. The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Secondly, the provider stated that they did not have access to the Veteran’s Service treatment records or medical treatment records prior to 2001. Without access to the Veteran’s records, it is not possible to conclude that the Veteran suffered from any of the claimed health effects in service. A private medical opinion, dated December 2016, from Dr. JS stated in part, “I feel his health problems were linked to his work in the military because little concern was given to protection of the soldiers hearing and breathing during that time. [The Veteran’s] death came at an earlier age than anticipated, secondary to these health issues which he may not have had if he had not been exposed to the byproducts of his military duties.” This medical opinion speculates as to the development of secondary health issues, but does not speculate as to the conclusion that the Veteran’s health problems were linked to the military. In other words, the non-speculative conclusion was based upon a speculative premise that the Veteran may not have developed secondary health issues if he had not been exposed to the byproducts of his military duties, presumably airborne particulates. The Board reiterates that a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a medical nexus. Additionally, this opinion lacks adequate rationale to substantiate a medical nexus. The physician stated that little concern was given to the protection of the soldiers’ hearing and breathing during that time, yet failed to explain how that lack of protection ultimately led to the Veteran’s death. Further, the physician stated that the Veteran’s death came at an earlier age than anticipated, yet failed to state what the Veteran’s anticipated age of death was, and to explain how the Veteran’s military duties hastened the Veteran’s death. A third private medical note, dated April 2017, from Dr. GR stated, “I am sure that he had considerable exposure to dust and air-borne particles during the course of his training and work. I was involved in treating him for a laryngeal cancer from 2001-2014.” The provider further stated that the Veteran had several cardiopulmonary events in 2013 that ultimately led to his demise in 2014. The Board finds that this correspondence does not add probative value to the adjudication of this claim because exposure to dust and airborne particles has been conceded, yet “considerable exposure” has never been quantified. Also, this provider does not form an opinion as to the nexus between exposure to airborne particles and the Veteran’s cause of death. As directed by the July 2020 Board remand, an addendum opinion was obtained to address the etiology of the Veteran’s cause of death and to discuss the private medical opinions of April 2016, December 2016, and April 2017. After a thorough review of the claims file, the October 2020 VA examiner opined that it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension, Type II Diabetes Mellitus, and respiratory disability contributed significantly or materially to cause his death. However, the examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's fatal cardiac disability was related to an in-service injury or disease, to include his demolition and explosives duties, and his conceded in-service exposure to dust and airborne particles. The rationale is that the size of the particulate matter, the chemical make-up of the particulate matter, the concentration of the various chemicals in the particulate matter, the duration of exposure to the particulate matter, and whether or not there are any pre-existing health conditions at the time of exposure to the particulate matter are factors that influence the development of disease. The examiner stated that “despite the veteran's conceded in-service exposure to [dust] and airborne particles, there is no information in the av[ai]lable STR's documenting the duration of exposure and the concentration of particulate matter the veteran was exposed to. Nor is there any documentation in the veteran's STR's of him developing any acute health complications due to the exposure to particulate matter.” The examiner addressed the three private medical opinions (April 2016, December 2016, April 2017) and explained that a determination regarding whether the Veteran’s fatal cardiac disability either began during service or was related to an in-service injury or disease, to include his demolition and explosives duties, and his conceded in-service exposure to dust and airborne particles, cannot be made without resorting to mere speculation. The examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran's comorbidities or disabilities that resulted in his death began during service, or manifested within one year after discharge from service, to include his demolition and explosives duties, and his conceded in-service exposure to dust and airborne particles. The examiner stated that the Veteran's STR's are silent for any acute health problems that developed during his active military service, and that his hypertension and Type II Diabetes Mellitus were apparently diagnosed in the 1980s, at least two decades from the time of his separation examination. The Board affords the October 2020 examiner’s opinion great weight, as it provided a thorough rationale based on a thorough review of the claims file, and supported by medical literature. In conclusion, the duration of exposure to particulate matter, the concentration of the particulate matter the Veteran was exposed to, and the frequency of exposure to the particulate matter cannot be determined without resorting to mere speculation. Likewise, the notion that the Veteran may have developed a contributory disease within one year after discharge from service cannot be determined without resorting to mere speculation because records from this period of time do not exist. In light of the above analysis, the weight of the evidence does not establish a nexus between the Veteran’s in-service presumptive exposure to dust and airborne particles and the Veteran’s death by acute myocardial infarction. While the Board acknowledges various positive opinions by private examiners, those opinions were determined to contain inadequate rationale and/or were speculative given the lack of evidence of the duration or frequency of exposure, and concentration of particulate matter the Veteran was exposed to during service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Therefore, the appeal must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.