Citation Nr: 21027360 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-12 375 DATE: May 5, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is DENIED. FINDINGS OF FACT 1. The Veteran died in March 2013. The death certificate lists the following causes: respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, hypoxemia, and cardiac arrest. 2. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder, total right knee arthroplasty, bilateral hearing loss, bilateral knee arthritis, right leg shell fragment wound scar, and tinnitus. 3. The Veteran's respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, hypoxemia, and cardiac arrest were not incurred during active service in the United States Army or otherwise related to service. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, an event, injury, or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1112, 1113, 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from March 1954 to August 1967, and from November 1967 to June 1974. Unfortunately, the Veteran passed away in February 2013. The Certificate of Death relays the following causes: respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, hypoxemia, and cardiac arrest. Entitlement to service connection for the Veteran's cause of death is denied. The Appellant contends that she is entitled to dependency and indemnity compensation based on service connection for the cause of the Veteran's death in March 2013. The Appellant submitted a VA Form 21-534EZ in March 2013. Service connection may be granted for a disorder resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (1) the existence of a present disorder; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disorder and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995). In cases of service connection for the cause of the death of the Veteran, the first requirement of a current disorder will always have been met, i.e., the current disorder being the disorder that caused the Veteran to die. However, the last two requirements for a service connection claim must be supported by the record. See Carbino v. Gober, 10 Vet. App. 507, 509 (1997). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service- connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The debilitating effects of a service-connected disability must have made the veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). Notwithstanding, an appellant is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Again, the Appellant is seeking service connection for the cause of the Veteran's death. The Veteran's certificate of death indicates respiratory failure, pneumonia, congestive heart failure, atrial fibrillation, renal failure, cirrhosis of the liver, thrombocytopenia, hypoxemia, and cardiac arrest were the cause(s) of death. In December 2014 , the Veteran's service treatment records (STRs) were associated with the claim file. In December 1956, the military provider noted a diagnosis for acute tonsillitis with a history of upper respiratory infection (URI). In November 1957, the Veteran received a line of duty for a URI. The Board notes that the Veteran was diagnosed with acute respiratory disease in November 1957. The Board notes that the Veteran did not report shortness of breath in October 1955, August and December 1958, December 1962, June 1964, and March 1974. Additionally, the military examiners noted normal lungs in the Clinical Evaluation reports. In May 2017, correspondence from Premier Medical Group was associated with the claims file. Therein, a Doctor of Osteopathic Medicine noted that the Veteran endured multiple medical problems after retirement from the U.S. Army. The Physician opined that, "I believe (the Veteran's) service in Viet Nam and his constant exposure to Agent Orange and other occupational exposures to smoke and fuel and fumes as a mess sergeant are the likely cause of his medical problems since his retirement and are the proximate cause of his death in January 2013. It is my opinion that (the Veteran's) service was much more likely than not the cause of his medical problems that ultimately caused his death. All of his medical problems were service connected (emphasis added to original)." The Board notes that the physician did not indicate that the Veteran's medical treatment documents were reviewed. The physician did not cite any medical literature in support of the conclusory statement. The Physician did not provide any analysis for the etiology statement. The Board observes that the Doctor of Osteopathic Medicine delivered a succinct, conclusory statement without support for his opinion. Consequently, the Board concludes that his opinion is inadequate for the analysis of the Appellant's claim for service connection for the cause of the Veteran's death. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion without any rationale against which to evaluate the probative value of the determination is inadequate). In February 2018, a VA examiner submitted a disability benefits questionnaire (DBQ). Therein, the VA examiner noted that none of the Veteran's service-connected conditions were listed on the certificate of death as a cause or significant contributing factor. The examiner noted the May 2017 correspondence from the Premier Medical Group. In response, the VA examiner relayed that, "(n)one of the veteran's listed causes of death on his Certificate of Death are presumptive diseases due to Agent Orange exposure, and the Institute of Medicine's Update 2014 'Veterans and Agent Orange' report does not support (the Dr.'s) contentions regarding medical problems caused by Agent Orange exposure. b. The veteran's hypertension was initially diagnosed in 1982, several years after exiting active military service. This was more likely as not a primary (essential) hypertension. c. This veteran's emphysema was more likely as not due to his 35-40-year smoking history of 1 to 1.5 packs cigarettes/day. d. The veteran's chronic thrombocytopenia was noted to be of uncertain etiology. e. There is no documentation that this veteran had prostate cancer as a possible cause of his prostate enlargement causing obstructed uropathy and acute on chronic renal failure. f. A review of this veteran's available medical records reveals no documentation of ischemic heart disease, and there is no supporting evidence provided by (the Dr.) to substantiate his contention that 'cardiovascular disease caused his chronic atrial fibrillation and cardiomyopathy.' There is no medical documentation currently available that a coronary catheterization was ever completed. Rather, based on the veteran's medical history, it is certainly possible that the veteran had a hypertensive cardiomyopathy (30+ year history of hypertension), and that his atrial fibrillation may have been caused by his advanced oxygen dependent COPD and/or the cardiomyopathy. g. Without the actual medical documentation and mainstream medical research literature to support his contentions, (the Dr.'s) statements as noted above are merely speculative." The VA examiner opined that the Veteran's service-connected disabilities, and presumptive exposure to Agent Orange, less likely as not caused or contributed to his death. The Veteran's government medical records were associated with the claims file in April 2013, June 2015, September and October 2017, January and February 2018, and April 2019. After review, the Board notes a reported history of emphysema. The Board also notes that the government medical records reflect that the Veteran ceased tobacco use in 1985 or 1986, after smoking more than two packs a day for at least 30 years. In April 2019, a VA examiner submitted a medical opinion. After review of the electronic claims file, the examiner opined that 1) the Veteran's service-connected disabilities less likely as not caused or contributed to his death; 2) the Veteran's treatments associated the with the service-connected disabilities less likely as not caused or contributed to his death; 3) the Veteran's service-connected disabilities less likely as not caused debilitating effects and general impairment of health to an extent that would render him materially less capable of resisting the effects of other disease or injury primarily causing his death; 4) the Veteran's conceded in-service Agent Orange exposure less likely as not caused or contributed to his death; and 5) the Veteran's STRs did NOT reveal any other treatment/diagnosis which would have at least as likely as not contributed to his death. In October 2020, the Appellant and her son supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Appellant testified that the Veteran was an intermittent smoker in the military, but he quit smoking 40 years before his death. The Appellant testified that the Veteran's responsibilities in and out of the military mess hall required the Veteran to be around diesel exhaust fumes "quite a bit." When questioned by her representative, the Appellant confirmed her belief that the Veteran was exposed daily to diesel exhaust fumes during his 20 years of military service. The Appellant testified that the Veteran endured breathing difficulty during and after military service. As indicated above, the STRs do reveal that the Veteran endured bouts with upper respiratory infections while in the U.S. Army. However, during the Veteran's in-service clinical evaluation reports, he did not report shortness of breath. Moreover, the military examiners reported that the Veteran demonstrated normal lungs. In October 2020, the Appellant submitted an article entitled, "Occupational diesel exhaust exposure as a risk factor for chronic obstructive pulmonary disease." The article summarized that, "(t)he available literature directly examining the effects of occupational diesel exhaust on risk of COPD is quite small, but it does suggest that increasing exposures are associated with increasing risk." In January 2021, the Board addressed the Appellant's claim for service connection for the Veteran's cause of death (COD). At that time, the Board remanded the claim to the AOJ to secure a VA opinion that addressed the Veteran's in-service diagnosis for acute respiratory disease and also considered the Appellant's contention that in-service occupational exposure diesel exhaust fumes were a cause of the Veteran's death. In February 2021, a VA examination report was associated with the claims file. The VA examiner noted that the Veteran was diagnosed with upper respiratory infections (URIs) at various times during active duty. The examiner noted that the STRs contained the Veteran's multiple complaints for sore throat or tonsillitis, which were diagnosed as URIs. The examiner contended that the in-service diagnosis for acute respiratory disease was related to the Veteran's various diagnoses for URI, because the throat and upper airways were part of the respiratory system. The VA examiner noted that the Veteran's in-service chest x-rays revealed normal findings. The examiner noted that the Veteran's smoking history included 2 packs each day for 35 years. The examiner noted that the Veteran never marked shortness of breath on any of his noted Personal Health Assessments, and there was also a negative response at this retirement physical examination. The examiner noted that Appellant's contention that exposure to occupational smoke, fuel fumes, and Agent Orange resulted in COPD and, therefore, caused the Veteran's death. The examiner opined that the Veteran's COPD was related to smoking, and not environmental factors. It was relayed that, "(t)his examiner does not agree that his service connected conditions of: PTSD, Total right knee arthroplasty, Right knee arthritis, Left knee arthritis, Right leg shell fragment wound scar, Bilateral hearing loss, and Tinnitus would have had any bearing on this Veterans death." The examiner relayed that, "(t)he current VA presumptives for Agent Orange exposure do not include the diagnosis of COPD. It does include respiratory cancers as presumptive conditions. This includes cancers of the lung, larynx, trachea and bronchus." The examiner relayed that, "(t)here is also no specific finding for this Veteran for any shown exposure to diesel fumes noted in review of the available records at this time. It has been shown that long term inhalation of diesel fumes can cause lung cancer, kidney damage and increased risk of heart attack. However, the Veteran had no diagnosis for lung cancer or heart attacks noted." The examiner relayed that, "(t)he evidence that smoking is a significant predictor of symptoms and for the development of COPD. This indicates that the Veteran's smoking history of 70 pack years would be the most likely causative factor for his later development of COPD and not the claimed history of diesel fume exposure while stationed in Vietnam for 3 years." Ultimately, the VA examiner opined that it was likely than not (less than 50 percent probability) that the Veteran's cause of death was in-service occupational exposures, to include exposure to diesel exhaust fumes, or was otherwise related to the Veteran's active duty service. The Board notes that the Appellant and her son are competent to report evidence pertaining to the Veteran's health that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (2007). However, as the Board revealed above, medical evidence is required to establish a causal connection between service or a disability of service origin and a Veteran's death. See Van Slack, 5 Vet. App. at 502. Ultimately, the Appellant and her son are not competent to provide evidence as to more complex medical questions and, specifically, are not competent to provide an opinion as to etiology in such cases. See Woehlaert, 21 Vet. App. at 462. The Board notes that the Appellant has not contended that the late Veteran demonstrated COPD during active duty service, or within one year following his separation from active duty Army service, which ended in June 1974. Moreover, she has not asserted that the Veteran died from any of the disability for which the Veteran established service-connection during his lifetime. In conclusion, and upon consideration of the entire record, the Board finds no competent medical evidence indicates that a disability incurred in, or aggravated by, military service caused or contributed to the Veteran's death. The Board emphasizes that it is sympathetic to the Appellant and is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the evidence is against the Appellant's claim, there is no reasonable doubt to resolve in her favor. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Ultimately, the Board concludes that the preponderance of the evidence is against the Appellant's claim for service connection for the cause of the Veteran's death; therefore, the benefit-of-the doubt rule does not apply to this entitlement claim. The claim for service connection for the cause of the Veteran's death must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.