Citation Nr: 21023284 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-24 204A DATE: April 20, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death service connection was in effect for right upper extremity amputation rated as 90 percent disabling. 2. The preponderance of the evidence shows that neither a service-connected disability or a disability for which service connection was warranted caused or contributed substantially or materially to the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1942 to January 1946. Unfortunately, he died in November 2012. The appellant is his surviving spouse. This case was previously before the Board in May 2018, at which time it was remanded to attempt to obtain outstanding service medical and personnel records, Veterans' Administration (VA) treatment records, and private treatment records. In this regard, the post-Remand record shows that the regional office (RO) substantially complied with the Remand because while the appeal was in Remand status the RO obtained and associated with the record all identified and available service, VA, and private records. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). In this regard, to the extent that the RO was unable to obtain and associate with the record any other service medical and personnel records while the appeal was in Remand status, the Board finds that where, as here, “service medical records are presumed destroyed, . . . the Board’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened.” O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened “benefit of the doubt,” but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran’s medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of his claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the “‘duty to assist’ is not a license for a ‘fishing expedition’ to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim”). The Cause of Death Claim The appellant asserts, in substance, that service connection is warranted for the cause of the Veteran’s death. Specifically, she argues that the Veteran’s service-connected right upper extremity amputation caused him undue stress which ultimately led to his death. See Informal Hearing Presentation dated in March 2021. To establish service connection for the cause of the Veteran’s death, the evidence must show that a disability which was incurred in or aggravated by active duty service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been one of the immediate or underlying causes of death or be etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). A contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, 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). Service-connected diseases or injuries involving active processes affecting vital organs are given careful consideration as a contributory cause of death, despite being unrelated to primary cause, due to debilitating effects and general impairment of health that such processes may cause. 38 C.F.R. § 3.312(c)(3). In all cases, VA must consider whether the evidence indicates that a service-connected condition was of such severity as to have a material influence in accelerating death. For example, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In evaluating the evidence, 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). 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). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the Veteran died in November 2012. The Certificate of Death lists the principal cause of death as cardiorespiratory arrest and cerebrovascular accident. In this regard, the Board notes that the Veteran was not service connected cardiorespiratory arrest and cerebrovascular accident at the time of his death. Moreover, the appellant does not claim, and the record does not show that the Veteran should have been service connected for either of these disorders during his lifetime. See Owens, supra. At the time of his death, service connection was in effect for interscapulothoracic amputation of the right upper extremity effective July 1952. The Veteran was also in receipt special monthly compensation for loss of one hand from July 1952 and a total rating based on individual unemployability (TDIU)from March 2011. As to the Veteran’s wife’s claim that the Veteran’s service-connected right upper extremity amputation caused him undue stress which ultimately led to his death, the record shows that the Veteran was severely disabled by his service-connected problem. This is not in dispute and it was the basis of the Veteran’s 90 percent rating, special monthly compensation, and TDIU. However, the July 2014 VA examiner opined, in substance, that the Veteran’s cardiorespiratory arrest was less likely than not caused by, a result of, or aggravated by his service-connected right upper extremity amputation. In this regard, the examiner reasoned that cardiorespiratory arrest could arise from many different reasons, including pulmonary embolus, arrhythmia, cardio tamponade, hypoxemia, acidosis, electrolyte abnormalities, or myocardial infarction. A cardiorespiratory arrest is of a dramatic onset with one more possibilities being present. However, stress by itself, has not been shown in the medical literature to contribute or cause a cardiorespiratory arrest. Additionally, the Veteran sustained his service-connected disability some sixty to sixty-five years before he died. Assuming that there was a contribution from his interscapulothoracic amputation of the right upper extremity inducing stress, the cardiorespiratory arrest should have happened on or near the time he sustained his disability or soon thereafter. However, this was not the case. Rather, the Veteran was able to live a very long life and be gainfully employed despite his condition. By the same line of reasoning, an aggravation cannot be demonstrated since other explanations for his arrest were present in his medical history such as advanced age, hypertension, and coronary artery disease, which are not necessarily related to stress. Further, the examiner opined that his cerebrovascular accident was less likely than not caused by, a result of, or aggravated by his service-connected right upper extremity amputation. The rationale provided was that risk factors for stroke can include hypertension, cigarette smoking, hyperlipidemia, diabetes, obesity, physical inactivity, obstructive sleep apnea, heart conditions (heart failure, heart defects, heart infection, or abnormal heart rhythm), birth control pills, heavy or binge drinking, age 55 or older, family history of stroke, race, and male gender. The Veteran had several risk factors for his stroke, such as hypertension, hyperlipidemia, age, and male sex that were present, independent from stress or explained by other etiologies. Either alone or in concert, they would be more likely to result in the development of the cerebrovascular accident than from the stress he sustained. Moreover, the service-connected disability was sustained some sixty years before he died. The Board finds this VA opinion the most probative evidence of record because it was provided after a review of the record on appeal and supported by citation to relevant evidence found in the claims file and controlling medical literature. See Owens, supra. The Board has also reached this conclusion because the VA opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). It is highly adequate and provides a basis to decide this issue. The Board also finds that neither the appellant or her representative is competent to provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused or contributed to cause the Veteran’s death). See Davidson, supra. Therefore, because the most probative evidence of record is the July 2014 VA opinion that the Veteran’s service-connected right upper extremity amputation had no relationship to the cardiorespiratory arrest and cerebrovascular accident that caused his death or in other way contributed to cause his death, the Board finds that the claim of service connection for the cause of the Veteran’s death cannot be granted based on a service-connected disability that was in affect at the time of his death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Therefore, because the most probative evidence shows that an already service-connected disability did not cause or contributed substantially or materially to death and because the appellant does not claim and the record does not show that service connection is not warranted for any other disease or disability that caused or contributed substantially or materially to the Veteran’s death, the Board finds that the preponderance of the evidence is against the appellant’s claim of service connection for the cause of the Veteran’s death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.