Citation Nr: 21022100 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-18 119 DATE: April 14, 2021 ORDER Service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s principal cause of death was end stage COPD/CHF (chronic obstructive pulmonary disease/congestive heart failure). 2. At the time of death, the Veteran was service-connected for chronic mild anxiety disorder with paranoid schizophrenia, and a scar as a residual of a shell fragment wound to the left cheek in front of the ear. 3. The Veteran’s principal and contributory causes of death were not related to service, to include Agent Orange exposure, or to service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service from November 1967 to November 1969, including combat service in the Republic of Vietnam for which he received several awards or commendations, including but not limited to the Purple Heart. The Veteran died in September 2009, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Appellant testified at a Board hearing in June 2016. In March 2018, the Board issued a decision that denied service connection for the cause of the Veteran’s death and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151. In September 2018, the Board denied a motion for reconsideration. The Appellant appealed from the March 2018 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2020 Order, pursuant to a Joint Motion for Partial Remand, the Court vacated and remanded the Board’s decision only with respect to the denial of service connection for the cause of the Veteran’s death. The Appellant specified that she was not appealing the denial of DIC under 38 U.S.C. § 1151. In July 2020 and December 2020, the Board remanded this matter. The prior remands were at least substantially completed, and no further remand is needed. On March 11, 2021, the Veteran’s representative submitted a response to a February 2021 supplemental statement of the case (SSOC) that referenced obtaining an expert opinion. However, he did not request additional time to do so and has not submitted additional evidence. In a March 16, 2021, letter, the Appellant and her representative were notified that the case had returned to the Board and they had 90 days from the date of the letter or until the Board issues a decision, whichever comes first, to submit additional evidence or arguments. Neither the Veteran nor Appellant has submitted additional arguments or evidence. 1. Service connection for the cause of the Veteran’s death At the time of his death in September 2009, the Veteran was service-connected for chronic mild anxiety disorder with paranoid schizophrenia (claimed as posttraumatic stress disorder (PTSD)); and a scar as a residual of a shell fragment wound to the left cheek in front of the ear. Two death certificates listed the Veteran’s immediate cause of death as end stage COPD/CHF (chronic obstructive pulmonary disease/congestive heart failure). The original death certificate listed other significant conditions contributing to death but not resulting in the underlying cause as hypertension. An amended death certificate added anxiety disorder and “MERSA” to that section. The Appellant contends that the Veteran’s service-connected anxiety disorder with paranoid schizophrenia, which she refers to at times as PTSD, was a contributory cause of his death because it caused him to smoke and drink excessively since service, which led to his COPD and CHF. The Appellant also asserts that the Veteran’s anxiety disorder caused or aggravated his hypertension and heart problems, including as due to his inability to sleep more than a few hours per night for years. She also notes that the Veteran had exposure to herbicide agents (including Agent Orange) in Vietnam. See, e.g., March 2010 and August 2010 statements, June 2011 notice of disagreement, June 2016 Board hearing, May 2013 and June 2010 attorney correspondences. In June 2012, the Appellant submitted an internet article from VA entitled “Ischemic Heart Disease and Agent Orange,” which noted that ischemic heart disease (IHD) is a common cause of CHF. Applicable Laws To warrant service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A disability will be considered the principal (primary) cause of death when such 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 disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show a condition causally shared in producing death; rather, it must be shown that there was a causal connection to the Veteran’s death. 38 C.F.R. § 3.312(c)(1). The criteria for determining whether a disability from which a veteran died is service-connected are the same criteria for determining whether a disability is service-connected generally. 38 U.S.C. § 1310. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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 in or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed conditions will be presumed related to exposure to herbicide agents, including Agent Orange, during active service if the condition manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii); 38 C.F.R. § 3.309(e). The Veteran in this case is presumed to have been exposed to herbicide agents during his service in Vietnam. 38 C.F.R. § 3.307(a)(6). Certain listed chronic diseases will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Appellant testified during a June 2016 Board hearing that she had 37 years of experience working in a hospital. However, she stated she is not a nurse (RN or LPN), and the evidence does not otherwise suggest that she has medical education, training, or experience sufficient to provide an opinion as to the Veteran’s specific diagnoses, the underlying cause of his conditions, or whether they caused or contributed to cause his death. These questions require medical training or expertise to interpret the Veteran’s history and test results due to the complex nature of the involved pulmonary, cardiovascular, and psychiatric bodily systems. In this case, several medical opinions were provided. As noted in the July 2020 Board remand, the Joint Motion found that VA opinions in January 2013 and February 2013 were inadequate because they applied incomplete or incorrect legal standards in their conclusions. The Board remanded this matter in July 2020 for an addendum opinion to address the inadequacies noted in the Joint Motion, as well as additional aspects of the case that were found upon further review of the file. In December 2020, the Board noted that the September 2020 VA examiner adequately addressed whether the Veteran had IHD that led to his CHF, as well as whether his service-connected mental health disability at least as likely as not caused or aggravated his use of tobacco products (smoking) and alcohol after service. However, the Board but again remanded the case for other addendum opinions. Although the amended death certificate listed anxiety disorder as a significant condition contributing to death but not resulting in the underlying cause, the Appellant reported in March 2010 that the cause of death on the death certificate was what she told the deputy coroner she thought the Veteran died from. Similarly, an October 2011 VA examiner noted that, per the Appellant, the second death certificate added anxiety disorder as a condition contributing to death at her request. In a February 2012 statement for her claim, the Appellant asserted that the coroner amended the death certificate because of her request and documentation she sent him, as well as the coroner’s own investigation with VA. However, there is no indication of the coroner’s reasoning in the file, and the medical opinions of record contained detailed explanations for contrary opinions, stating that both hypertension and anxiety disorder less likely than not contributed to cause the Veteran’s death despite the notations on the death certificates. Therefore, the notations of hypertension and anxiety disorder as significant conditions contributing to death but not resulting in the underlying cause are not dispositive. As directed in the December 2020 Board remand, the agency of original jurisdiction (AOJ) provided the curriculum vitae to the Appellant and her representative via the September 2020 VA examiner via the February 2021 supplemental statement of the case (SSOC) that was sent to them both. A February 2021 VA addendum opinion gave detailed opinions and rationales based on the Veteran’s full history, relevant medical literature, and appropriate legal standards the reasonably raised theories. In March 2021, the Veteran’s representative asserted that the February 2021 opinion did not directly respond to his prior arguments in response to an October 2020 SSOC. However, the representative did not identify any particular inadequacies, and the Board finds the opinions adequate, as explained further below under the relevant analyses. As explained below, the weight of the evidence reflects that the Veteran’s principal and contributory causes of death were not related to service, to include Agent Orange exposure or a chronic presumption, or to service-connected disability. Ischemic Heart Disease and CHF As noted above, the Appellant asserted for her claim that the Veteran had exposure to herbicide agents (including Agent Orange) in Vietnam, and she submitted an article about IHD and Agent Orange noting that IHD is a common cause of CHF. Under 38 C.F.R. § 3.309(e), IHD will be presumptively service-connected as due to herbicide agent exposure (including Agent Orange) and is defined as including, but not limited to, atherosclerotic cardiovascular disease including coronary artery disease. In this case, the Veteran had presumptive exposure to herbicide agents during service in Vietnam. However, the preponderance of the competent evidence is against finding that he had IHD or that his CHF was caused by that condition. VA examiners in March 2012 and February 2013 who opined that the Veteran did not have IHD did not address potentially favorable evidence. These examiners noted that there were some references to coronary artery disease (CAD) in medical records, but they opined that there was no evidence of significant IHD or atherosclerotic heart disease (ASHD). Instead, these examiners opined that the Veteran’s CHF was more likely due to pulmonary hypertension from his COPD or diastolic dysfunction. However, these examiners did not address the significance of a VA treatment record noting that a September 2009 CT scan showed extensive atherosclerotic disease throughout the aorta and visualized arterial structures, also described as dense atherosclerosis in the distal aorta and common iliac arteries. A September 2020 VA medical opinion adequately responded to the question of whether the Veteran had IHD, to include atherosclerotic cardiovascular disease or CAD. As directed in the July 2020 Board remand, the examiner addressed the significance of the September 2009 CT scan results. The examiner opined that the Veteran less likely than not had IHD or ischemic CAD, and that instead the evidence showed non-ischemic atherosclerotic cardiovascular disease (ASCVD). The examiner explained that multiple diagnostic imaging studies are consistent with atherosclerotic cardiovascular disease (ASCVD). In particular, a January 2003 CT of the abdomen or pelvis identified moderate calcified atherosclerotic disease. A February 2003 CT of the chest identified extensive coronary artery calcification. A September 2003 CT of the chest identified coronary calcifications with normal heart size. A 2009 CT of the abdomen or pelvis identified coronary artery calcification and moderate to severe atherosclerotic disease (as noted in the prior Board remand). The examiner stated that ASCVD may be ischemic or non-ischemic, and individuals with non-ischemic ASCVD do not have coronary blood flow restriction. The examiner concluded that this Veteran had non-ischemic ASCVD. His medical record documentation lacked objective evidence of IHD or ischemic coronary artery disease (CAD). In particular, there were no IHD symptoms, multiple normal (non-ischemic) EKGs from 2001 to 2009, and two echocardiograms in 2008 and 2009 with findings consistent with non-ischemic ASCVD. There was also a reported prior cardiac catheterization test (coronary angiography) with denial of myocardial infarction, stent, or bypass surgery. Finally, a hospital discharge summary dated in October 2009 that was completed after the Veteran’s death, with an admission date in July 2009 and discharge date of August 27, 2009, identified "no acute episodes related to CAD." Additionally, as discussed in further detail below, a December 2020 VA examiner noted that evidence of CHF did not occur until 2008, and his CHF was due to his severe COPD with development of pulmonary hypertension. The examiner explained that COPD leads to development of pulmonary hypertension and heart failure. The Veteran had global hypokinesis on echocardiogram, which indicates a global dysfunction of the heart. Such global reduced cardiac function can be due to IHD or chronic out of control hypertension. The Veteran did not have IHD. He had diffuse atherosclerosis of his brain, heart, aorta, and peripheral arteries, as noted on brain MRIs, chest and abdominal CT scans. This diffuse atherosclerosis was from his heavy smoking. Treatment records do not show the Veteran ever having a diagnosis of IHD or myocardial infarction. He was seen by cardiology on July 28, 2009, for management of edema attributed to his poor nutritional status and low albumin level. There was no diagnosis of IHD or prior IHD. The September 2020 and December 2020 examiners’ opinions and rationales in this regard have high probative value because they reflect application of medical expertise to the Veteran’s full history and relevant evidence, including consideration of relevant medical articles and explanations as to their significance for this case. There is no contrary competent medical evidence, and these opinions outweigh the noncompetent evidence, including from the Appellant. For the above reasons, the evidence does not establish that the Veteran had IHD or an eligible presumptive condition that caused or contributed to cause his CHF. Smoking and Alcohol History As noted above, the Appellant contends that the Veteran’s service-connected mental health disorder was a contributory cause of death because it caused him to smoke and drink excessively since service, which led to his COPD and CHF. In June 2012, the Appellant submitted a copy of a Board decision, which granted service connection for the cause of a different veteran’s death as due to end-stage liver disease that was caused by alcohol abuse due to his service-connected PTSD. Previously issued Board opinions are not precedential and are binding only with regard to the specific case decided, as each case presented will be decided based the facts of the case and applicable procedures and substantive law. 38 C.F.R. § 20.1303. Importantly, the prior decision is based on a different medical and factual history, including that there was a positive nexus opinion in that case, and there is no such positive opinion in this case. Thus, it has no probative value. For claims filed after October 31, 1990, federal law precludes VA compensation for alcohol or drug abuse on a direct basis. 38 U.S.C. §§ 105(a), 1110; 38 C.F.R. §§ 3.1(m), 3.301(a),(d). However, those laws do not preclude compensation, including DIC, for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001); El-Amin v. Shinseki, 26 Vet. App. 136, 138-39 (2013). Similarly, for claims filed after June 9, 1998, VA compensation is generally precluded for disability or death that is caused by a veteran’s tobacco use during service. 38 U.S.C. § 1103, 38 C.F.R. § 3.300. However, secondary service connection or DIC may be awarded for a tobacco-related disability that is caused or aggravated by a primary service-connected disability that is not due to tobacco use during service. See VAOGCPREC 6-2003 (Oct. 28, 2003). When assessing this type of claim, the following questions must be resolved: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. Id. VA examiners in March 2011 and January 2013 addressed the Veteran’s smoking history or tobacco addiction. The Appellant submitted medical articles suggesting that the Veteran’s smoking history and alcohol abuse may be related to his mental health disorder and may have contributed to cause his death from COPD/CHF. Furthermore, those opinions on smoking did not consider all relevant evidence. Specifically, the March 2011 VA examiner opined that there was “no indication” that the Veteran’s tobacco use was due to his service-connected anxiety disorder. The examiner noted that records in 2000 reflect that the Veteran reported smoking 3 to 4 packs per day for 42 years and that he did not want to quit, he refused a smoking cessation program, and the evidence showed that he was addicted to tobacco and made no effort to quit. However, this opinion did not address whether the Veteran’s tobacco addiction itself and his inability or refusal to quit was at least as likely as not due to his service-connected anxiety disorder. The January 2013 VA examiner opined that the Veteran’s claimed condition was less likely than not due to his service-connected condition, as well as that he clearly and unmistakably had a preexisting condition that was clearly and unmistakably not aggravated by service. However, service connection for the Veteran’s mental health disorder was not based on a preexisting disorder, so that opinion has no relevance to that disorder. In the rationale for both of these opinions, the examiner stated that the Veteran’s smoking addiction was less likely than not caused or aggravated by his service-connected chronic anxiety disorder with paranoid schizophrenia. The examiner noted that the Veteran’s parents died of lung cancer after many years of smoking and the Veteran also smoked for many years, and there was “no evidence in the record” to support that the Veteran’s smoking addiction was caused or aggravated beyond normal its progression by anxiety disorder of any type. This rationale is conclusory and based in part on the history of the Veteran’s parents, not his own history. Additionally, this examiner did not address evidence that the Veteran had a minimal smoking history prior to service, that he began smoking and drinking heavily after combat service, or the medical articles submitted by the Appellant suggesting a relationship between heavy combat exposure and/or mental health disorders and smoking and drinking. The Veteran received multiple commendations for his heavy combat service and wounds received in combat. The Appellant, who knew the Veteran since childhood and married him in 1973, stated that prior to service they smoked a few cigarettes or drank a beer once in a while socially, but the Veteran drank and smoke more after he returned from Vietnam. She also stated that his personality and behavior were different after Vietnam. The Appellant reported that the Veteran would smoke to calm his nerves or relax due to anxiety and would drink to help “forget” and to fall asleep, as well as that he had attempted to quit smoking and drinking excessively in the past but was unable to do so. See, e.g., August 2010 and February 2012 statements, June 2016 Board hearing. Prior to his death, the Veteran also stated that he began heavily drinking and smoking marijuana during his combat service in Vietnam and continued heavy use for several years when he returned from that service. He had multiple periods of rehabilitation or treatment with Antabuse for alcohol abuse, and he was sober for a few years but then began drinking heavily again. A 1981 examiner noted a lengthy problem of alcohol use and diagnosed chronic severe alcohol dependency disorder. The Veteran reported smoking 2 packs per day in 1981. See, e.g., January 1981 VA examination report, special psychiatric report, and special general medical report. During an October 1989 VA examination, the Veteran reported that although he drank alcohol prior to service, his use of alcohol and marijuana intensified considerably in Vietnam and his heavy abuse continued until about 1976. He reported infrequent “slips” since then. The examiner noted heavy combat exposure. Subsequent treatment records noted that the Veteran was again drinking heavily and continued to smoke heavily, along with mental health disorders. A May 1993 private inpatient discharge summary noted that the Veteran had alcoholism where he drank at least a 6-pack of beer almost daily and psychotic disorder not otherwise specified (NOS) manifested primarily by severe paranoia. A February 1996 private discharge summary noted diagnoses of Axis I acute alcohol intoxication, alcohol dependence, and schizo-affective disorder; Axis II schizotypal personality; Axis III COPD and emphysema; and Axis IV alcoholic relapse. The Veteran reported smoking 3 packs per day for 35 years and drinking 12 to 24 beers per day. A July 2000 VA smoking cessation consult record noted that the Veteran smoked 3 to 4 packs per day and reported a diagnosis of schizophrenia but that he was not seeing anyone for it. The provider told the Veteran that he doubted his ability to quit smoking while his alcohol intake remained so high, and the Veteran agreed, saying that a beer and cigarette go hand in hand. The provider offered treatment for alcohol use, but the Veteran declined, saying that he had tried before and it didn’t work. The provider informed the Veteran that he would be unable to help him quit smoking at this time, and the Veteran was agreeable to no further intervention. During a November 2004 VA examination, the Veteran described combat stressors in Vietnam and reported that he began drinking to fall asleep and had significant interpersonal difficulties once he was stateside, and he currently smoked up to two packs per day. The initial report listed diagnoses of PTSD, schizophrenia, residual type, and alcohol dependence in remission. However, a December 2004 addendum stated that the full diagnostic criteria for PTSD were not met, and that the diagnosis was anxiety disorder NOS with paranoia and interpersonal difficulties. A September 2020 VA examiner adequately responded to whether the Veteran’s service-connected mental health disability at least as likely as not caused or aggravated his use of tobacco products (smoking) and alcohol after service. As directed by the July 2020 Board remand, the examiner considered the evidence from the Appellant and Veteran consistent with the above summary, as well as an article submitted by the Appellant in June 2011 noting that people with anxiety are more likely to resort to other unhealthy habits such as smoking and drinking. The examiner opined that the Veteran’s mental health disorder less likely than not caused or aggravated his use of tobacco or smoking. The Veteran started smoking at age 9, he was a willful heavy smoker until age 52 in July 2001, when he first requested smoking cessation and reduced smoking, then he quit in February 2007 when he had to use supplemental oxygen. The examiner explained that an early age at onset of regular smoking is associated with a statistically significant increased high nicotine dependence ratio and decreased quit attempt and intention to quit, per medical literature and multiple studies. Therefore, the Veteran’s early age at onset of smoking resulted in his addiction and unwillingness to quit. Although scientific literature identifies increased smoking prevalence in individuals with anxiety, schizophrenia, or depression, this increased rate by itself should not be used to determine causality. In this case, there was an early age of onset of smoking that preexisted the Veteran’s mental health disorders; therefore, the mental health disorders do not meet the temporal association to be considered a primary causative condition. Additionally, the examiner opined that the Veteran’s mental health disorder did not aggravate his use of tobacco or smoking after service. Records do not support that he smoked only minimally prior to service and heavily after service due to his mental health disorder and symptoms. Records from 1992 to 2001 indicated that he smoked 2 to 5 packs per day for 35 to 42 yrs or since about 1960, and an April 2004 record noted that he smoked two packs per day for 35 years or since about 1970. The examiner noted that the statement from the Appellant as the Veteran’s wife minimized his smoking history because she was three years younger and was also not with him the whole time they were married, noting that she stated that he would go to his shed. The examiner stated that although the Veteran’s mental health disorder did not cause or aggravate his tobacco use, it is more likely than not that his tobacco use was the primary causative factor of his COPD/CHF. The examiner explained that smoking is a well-known risk factor for COPD. Death from COPD including pulmonary hypertension is a common complication of COPD, and it may lead to right-sided heart failure, per medical literature. The Veteran had had right-sided CHF in July 209 due to end-stage COPD, which resulted in his death. The September 2020 VA examiner also opined that the Veteran’s mental health disorder less likely than not caused or aggravated his use of alcohol after service. The examiner explained that early alcohol use is linked to a higher lifetime alcoholism risk, per medical literature. The Veteran started drinking around age 9 or 10 and was raised by parents who used alcohol to excess. Therefore, the Veteran’s onset at age 9 or 10 markedly increased his risk of lifetime alcohol dependence and was most likely the cause of his alcohol dependence. Although scientific literature identifies an increase in alcohol dependence with mental health disorders including anxiety, schizophrenia, and depression, this increased rate by itself should not be used determine causality. In this case, there is an early age of onset of drinking which preexisted the Veteran’s mental health disorder, so the temporal association is not met to be a primary causative condition. The examiner stated that the Veteran’s mental health disorder also did not aggravate his alcohol use beyond its natural progression. The examiner explained that records from 1973 forward are consistent with a normal progression of preexisting alcohol dependence. This includes a notation in October 1989 stating that the Veteran drank prior to service, but his alcohol and marijuana use intensified considerably in Vietnam, and he had heavy abuse after Vietnam until about 1976. An August 1999 record noted that the Veteran was drinking when he fell asleep and crashed his car at age 17. The examiner stated that the Appellant’s assertion that the Veteran had a minimal drinking history prior to service and increased drinking during and after combat, and that he drank to help him forget and sleep and was unable to quit several times, is consistent with the normal progression of a preexisting alcohol dependency condition. The September 2020 examiner also opined that the Veteran’s alcohol dependency did not contribute substantially or materially, combine to cause death, or aid or lend assistance to his death. The examiner explained that the cause of death was COPD/CHF, and the Veteran stopped drinking in 2001 as reflected in an August 2008 record. There was no objective evidence in the records that a history of alcohol dependency contributed to the cause of death from COPD/CHF. The September 2020 VA examiner’s opinions and rationales have high probative value because they reflect application of medical expertise to the Veteran’s full history and relevant evidence, consistent with the Board’s independent review the evidence. The examiner also considered relevant medical and scientific articles and gave explanations as to their significance for this case. There is no contrary competent medical evidence, and these opinions outweigh the noncompetent evidence. Therefore, the evidence does not establish that the Veteran’s smoking or alcohol use were caused or aggravated beyond their natural progression by his service-connected mental health condition, or caused or contributed to his death. Aggravation of Hypertension and CHF As noted above, the Appellant asserts that the Veteran’s service-connected anxiety disorder caused or contributed to cause his death from COPD with CHF because it caused or aggravated his nonservice-connected hypertension to cause heart problems or CHF, including due to chronic sleep impairment for years. An April 2012 examination report (with an initial October 2011 date) by a psychologist opined that the Veteran’s service-connected mental health disorder less likely than not caused or resulted in his death from heart disease or CHF. This examiner noted that articles from the internet were provided concerning to the relationship between anxiety, hypertension, and CHF; and that hypertension and anxiety were noted on the death certificate as contributing to death but not resulting in the underlying cause of death of COPD/CHF. This examiner acknowledged that studies show a correlation between mental disorders and medical disease and increased mortality, but stated that there is no scientific evidence to support “anxiety with paranoid schizophrenia” as contributing substantially or materially to death. It appears that this examiner inappropriately narrowed his search to the specific characterization of the service-connected disorder, not the Veteran’s anxiety and other mental health symptoms. As noted in the Joint Motion, the January 2013 VA examiner concluded that, while the Veteran’s service-connected mental health disorder “contributed in some way to his death, it is less likely than not, on the basis of the material in the record, that it caused or substantially contributed to his death or to the conditions which caused his death.” The examiner stated that “it is quite true that the Veteran’s anxiety disorder with paranoid schizophrenia was a significant condition for him” and he suffered from the condition since 1974. However, this examiner did not address whether the Veteran’s mental health disorder “combined to cause death” or “aided or lent assistance to the production of death.” The examiner also did not clarify the degree to which the disorder “contributed in some way” to his death. The Joint Motion also found that the February 2013 VA examiner used an incorrect legal standard for secondary service connection. This examiner opined that the Veteran’s service-connected mental disorder less likely than not “caused or permanently aggravated beyond normal progression” his hypertension.” After that opinion was provided, the Court clarified that secondary service connection is warranted for any incremental increase or additional impairment of earning capacity above the baseline level of a nonservice-connected disability existing before the increase that results from the service-connected disability, regardless of permanence. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). The February 2013 examiner also stated that his review of medical literature showed that “depression was the only psychological disorder that was possibly linked to an increased incidence of hypertension.” This examiner also stated that he could not find “any medical literature articles” that concluded that either anxiety or paranoid schizophrenia was a cause of hypertension. However, as the Appellant submitted internet medical articles in this regard, it cannot be said that there is “no” such evidence. Additionally, the February 2013 examiner did not address evidence that the Veteran had depression for years as part of the symptomatology for his service-connected mental health disorder. Although service connection was granted for anxiety disorder with paranoid schizophrenia, not for PTSD, the Veteran’s records reflect depression and other symptoms that were diagnosed at times as schizophrenia. Additionally, records since 1970 documented the Veteran’s mental health symptoms. For example, a June 1970 record diagnosed psychoneurotic anxiety reaction for symptoms including nervousness or anxiety and insomnia beginning in service. Private treatment records in January 1974 noted “clear manifestations of depressive syndrome” including sadness, inability to sleep, and apprehension, as well as anxiousness and restlessness. A June 1975 record noted that the Veteran was treated in 1974 for manic depressive disease, depressive type, and excessive periodic drinking. A September 1976 record noted that he was admitted for severe depression, and the final diagnosis was depressive neurosis, alcohol addiction, and rule out schizophrenia. A March 1977 record noted alcohol addiction, schizophrenia, schizo-affective type, depressed, and rule out organic brain syndrome. A November 1980 record noted that the Veteran had been treated since 1974 for schizophrenia, schizo-affective type, depressed, and alcohol addiction with a history of being sober for 4-5 years. A January 1981 VA examination noted current depressed mood, nervousness, irritability, memory and concentration disturbances, and being paranoid of most people. An October 1989 VA examination stated that the Veteran had schizophrenia and did not meet the full criteria for PTSD. An April 1990 private treatment record noted that psychiatric test results suggested depression, anxiety, and other symptoms that were generally consistent with PTSD. However, VA examiners in August 1996 and August 1999 again diagnosed schizophrenia and alcohol dependency, but again found that the Veteran did not meet the full PTSD criteria. A May 2000 VA treatment record noted neurotic depression and alcoholism. An October 2007 VA treatment record noted psychosis NOS and depressive disorder NOS. An April 2008 VA treatment record noted neurotic depression and psychosis, with symptoms including depressed mood with anxiety. An October 2008 VA treatment record noted neurotic depression with symptoms including depression, fair sleep, poor self-esteem, and anxiety more than half the time. In March 2009 and July 2009, the Veteran had active VA prescriptions for depression. Based on the above summarized prior inadequacies and evidence, the Board remanded this case in July 2020 for addendum medical opinions. A September 2020 VA medical opinion responded to the questions of whether the Veteran’s service-connected mental health disorder caused or aggravated his hypertension and cardiac conditions or otherwise caused or contributed to cause his death. However, in December 2020, the Board again remanded the matter for an addendum opinion to consider the Veteran’s history and records prior to those dated in August 2009, shortly before his death. The December 2020 Board remand explained that the examiner should consider the Veteran’s mental health symptoms since 1970 and over the course of his life in determining whether his service-connected mental health disability was as likely as not a contributory cause of death under the appropriate legal standards. In other words, the question is whether the Veteran’s longstanding service-connected mental health symptoms contributed to his physical condition of COPD with CHF that resulted in his death. Although the September 2020 medical opinion report listed relevant evidence since the 1970s, the opinions and rationales did not reflect consideration of that information. Upon remand, in a different VA examiner provided addendum opinions in February 2021, as directed in the December 2020 Board remand. The examiner noted that he had reviewed all evidence in the claims file, consistent with directives in the Board remand. The examiner opined that it is less likely than not that Veteran’s service-connected anxiety disorder with paranoid schizophrenia contributed substantially or materially, combined to cause death, or aided or lent assistance to his death from COPD/CHF, to include through causation or aggravation of his hypertension. The examiner provided the following rationales. As directed in the remand, the examiner addressed the Veteran’s full history, not solely his mental health status and symptoms in August 2009 shortly before his death. The examiner also addressed the medical and internet articles submitted by the Appellant. The examiner first stated that based on the body of evidence, which includes all of this Veteran’s mental health records and associated recorded mental health symptoms since the 1970’s, does not support that the Veteran’s longstanding service-connected mental health conditions and symptoms contributed to his physical condition of COPD with CHF that resulted in his death. Beginning in 1970, the Veteran sought care for his anxiety disorder and subsequently for other mental health conditions, including depression, psychosis, schizophrenia, schizo-affective type and anxiety, along with symptoms related to these mental health conditions, such as nervousness, paranoia, memory loss and sleeping difficulties. Mental health and medical treatment records do not attribute the Veteran’s COPD with CHF as being due to, aided by or aggravated by his service-connected mental health condition. Records clearly attribute his COPD to his long history of heavy smoking, and his heavy smoking preceded his enlistment. The examiner also explained that treatment records note the Veteran having COPD on a November 1994 chest X-ray. Evidence of CHF did not occur until 2008. Treatment records support that the Veteran developed COPD as a result of continuation of his pre-service heavy smoking. His CHF was due to his severe COPD with development of pulmonary hypertension. COPD leads to development of pulmonary hypertension and heart failure. He had global hypokinesis on echocardiogram, which indicates a global dysfunction of the heart. Such global reduced cardiac function can be due to IHD or chronic out of control hypertension. The Veteran did not have IHD. He had diffuse atherosclerosis of his brain, heart, aorta, and peripheral arteries, as noted on brain MRIs, chest and abdominal CT scans. This diffuse atherosclerosis was from his heavy smoking. Treatment records do not show the Veteran ever having a diagnosis of IHD or myocardial infarction. He was seen by cardiology on July 28, 2009, for management of edema attributed to his poor nutritional status and low albumin level. There was no diagnosis of IHD or prior IHD. Additionally, treatment records show that the Veteran’s hypertension was treated and controlled with two medications. His hypertension was more likely than not a result of his smoking. Hypertension does not affect COPD. Furthermore, the Veteran’s hypertension was controlled, so it is less likely as not that his hypertension contributed substantially or materially, combined to caused or aided or lent assistance to his CHF. His CHF was due to his COPD. The examiner then addressed articles submitted to support the Appellant’s claim. As noted in the July 2020 Board remand, in June 2011, the Appellant submitted an internet article entitled “Anxiety: A cause of high blood pressure.” This article noted that episodes from anxiety can cause just as much damage to the blood vessels, heart, and kidneys as chronic high blood pressure. It also noted that people with anxiety are more likely to resort to other unhealthy habits such as smoking and drinking. The February 2021 VA medical opinion summarized that this 2009 article from the Mayo Clinic stated that anxiety does not cause long-term hypertension but can cause temporary spikes that can damage blood vessels, heart, and kidneys. The examiner explained that in this case, the body of evidence does not show that this Veteran had anxiety-induced spikes in his blood pressure that would lead to damage to his blood vessels, heart, or kidneys. His blood pressure was well controlled on medications. In June 2011, the Appellant also submitted an article entitled “Relationship of Depression, Anxiety, and Social Isolation to Chronic Heart Failure Outpatient Mortality.” This article noted that considerable evidence links psychosocial factors to coronary heart disease mortality and sudden cardiac death. The February 2021 VA medical opinion summarized that this article by Friedmann E, et al., stated that depression and anxiety were common in heart failure outpatients. The examiner explained that this article does not apply to this Veteran since his heart failure had nothing to do with his depression, anxiety, or any mental health disorder. His heart failure was due to his severe COPD with resultant pulmonary hypertension. Additionally, the Friedmann article is a cross-sectional study based on depression and anxiety symptoms with a mean follow-up duration at 23.6 months. The cited article does not address a long-term history of depression and anxiety, as with this Veteran, going back 39 years prior to Veteran’s death. The Friedmann study design and results are applicable for a 23.6 months duration. In June 2011, the Appellant also submitted an article entitled “Prognostic Value of Anxiety and Depression in Patients with Chronic Heart Failure.” This article noted that anxiety and depression are highly correlated in CHF patients, although depression alone predicts a significantly worse prognosis of these patients. The February 2021 VA examiner summarized that this article reflects that anxiety was not associated with increased mortality in this study. The examiner explained that this article does not apply to this Veteran since his heart failure had nothing to do with his depression, anxiety, or any mental health disorder. His heart failure was due to his severe COPD with resultant pulmonary hypertension. In February 2012, the Appellant submitted an internet article entitled “The Human Costs of Vietnam.” This article noted that Vietnam-era veterans with heavy combat experience and Agent Orange exposure suffer a higher rate of social, physical and mental problems, including divorce, heart disease, and PTSD. The February 2021 VA examiner noted that this article from American Legion Magazine from 1988 references several journal articles by JM and SD Stellman, published in Environmental Research in December 1988. The articles are based on a cross-sectional survey of Vietnam-era American Legionnaires and addressed PTSD, combat experience, and herbicide exposures. The articles reported that combat veterans had a higher rate of behavioral issues and significantly poorer rate of reduction and cessation of smoking and drinking than others. Heart disease was reported more often by Vietnam veterans compared to controls. The examiner explained that the study design, being a cross-sectional survey, can look at trends but cannot show or prove causation. In response to the Board remand directive to clarify the degree to which the Veteran’s service-connected mental health disorder “contributed in some way” to his death, as noted in the January 2013 VA opinion by a different examiner, the February 2021 VA examiner stated that he did not agree with that opinion. Instead, based on the body of evidence and in accordance with accepted medical principles, the examiner stated that it was his professional opinion that it is less likely than not that the Veteran’s service-connected mental health disorder “contributed in some way” to his death. The examiner provided the same rationale as for his earlier opinions as summarized above, which considered all of the evidence concerning the Veteran’s status and mental health symptoms since the 1970s, and his long history of heavy smoking that preceded his enlistment into service. The February 2021 examiner’s opinions and rationales have high probative value because they reflect application of medical expertise to the Veteran’s full history and relevant evidence, consistent with the Board’s independent review of the evidence. The examiner also considered relevant medical and scientific articles and gave explanations as to their significance for this case. These opinions outweigh the January 2013 VA examiner’s notation about the Veteran’s mental health disorder contributing in some way to his death, as well as the noncompetent lay evidence. Therefore, the evidence does not establish that the Veteran’s service-connected mental health condition caused or aggravated his hypertension or high blood pressure, or otherwise caused or contributed to cause his death from COPD with CHF. Direct Service Connection, to include Presumptions As noted above, the theories of chronic disease and herbicide agent presumptions have been raised by the arguments and evidence. See 38 C.F.R. §§ 3.307 and 3.309. Although the Veteran had presumptive herbicide agent exposure in Vietnam, COPD, CHF, and hypertension are not subject to presumptive service connection. See 38 C.F.R. § 3.309(e). In June 2020 arguments, the Appellant’s representative asserted that the Veteran’s hypertension was due to Agent Orange exposure in Vietnam. He asserted that a 2018 National Academy of Sciences (NAS) study and report entitled “Veterans and Agent Orange: Update 11 (2018)” found that there is “sufficient” evidence of an association between hypertension and Agent Orange exposure, an upgrade from the previous classification in the “limited or suggestive” evidence category. Hypertension has not been added to the list of presumptive diseases for herbicide agent exposure, and there is no medical opinion directly linking the Veteran’s hypertension to such exposure considering the facts of his case. Additionally, as summarized above, the evidence reflects that the Veteran’s CHF was due to his COPD with pulmonary hypertension or diastolic dysfunction, not by his hypertension or high blood pressure. The medical opinions noted that his blood pressure or hypertension was controlled by medications and did not contribute substantially or materially, combine to cause, or aid or lend assistance to his CHF. Therefore, the examiner distinguished between the Veteran’s hypertension or general high blood pressure and his pulmonary hypertension from severe COPD. No further development or opinion is needed in this regard because it would not have a reasonable possibility of substantiating the claim. For the chronic disease presumption, arteriosclerosis, cardiovascular-renal disease including hypertension, and endocarditis and all forms of valvular heart disease are listed chronic diseases. COPD is not a listed chronic condition. See 38 C.F.R. § 3.309(a). However, there is no argument or suggestion of an onset of hypertension or any cardiac disease during service or within one year after service. Therefore, the chronic disease presumption does not apply for hypertension or any cardiac disease to the extent it may have any relationship to his COPD or CHF. Additionally, the Veteran’s service treatment records do not reflect any complaints, treatment, or diagnosis of a lung or heart condition or hypertension. He was treated in September 1968 for an upper respiratory infection (URI) with persistent cough, and a chest X-ray revealed “BV markings in RLL; otherwise normal chest.” During his November 1969 separation examination, the Veteran denied asthma, shortness of breath, pain or pressure in chest, chronic cough, palpitation or pounding chest, and high or low blood pressure. A Report of Medical Examination for separation showed that the Veteran’s lungs, chest and heart were found clinically normal; a chest X-ray was negative; and his blood pressure was 120/80. After service, a November 1980 chest X-ray revealed no evidence of active pulmonary disease, and a December 1994 chest X-ray was noted as normal. In a March 2011 VA opinion, a medical doctor noted that the Veteran had severe steroid and oxygen-dependent COPD, and in 2003 he was seen by the pulmonary service for a lung nodule that turned out not to be malignant. A February 2013 VA examiner opined that the Veteran’s September 1968 chest X-ray results less likely as not represented a diagnosis of COPD. The examiner explained that the Veteran’s X-ray report due to a persistent cough was normal, except for bronchovascular markings noted in the right lower lobe, and markings confined to only one lung lobe would be unusual for COPD. The examiner cited to medical literature; gave examples of radiographic features suggestive of COPD, usually seen in advanced disease; and stated that such findings were not shown on the Veteran’s 1968 X-ray report. Additionally, the Veteran was first noted to have COPD in July 2003, more than 30 years after his separation from service. This opinion is highly probative because it reflects application of medical expertise, including relevant medical literature, to accurate facts for this Veteran’s history. For the above reasons, the weight of the evidence does not establish direct service connection for the Veteran’s listed causes of death or potential contributing factors. Overall Conclusion Based on the above evidence, the criteria for service connection for the cause of the Veteran’s death are not met. The preponderance of the evidence is against the claim under any reasonable raised theory, and there is no reasonable doubt to resolve in the Appellant’s favor. The appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.