Citation Nr: 21028785 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-05 254 DATE: May 12, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The Veteran died in December 2010 of cardiac arrest due to atherosclerosis, with pleural effusion being a significant condition contributing to death. 2. At the time of death, service connection was in effect for posttraumatic stress disorder (PTSD), tinnitus, and hearing loss. 3. The preponderance of evidence weighs against a finding that the cardiac arrest, atherosclerosis, or pleural effusion were etiologically related to, or the result of, active duty service or service-connected disability, or that any service-connected disability was a principal or contributory cause of death. 4. The Veteran did not have a service-connected disability that was continuously rated as being totally disabling for a period of 10 or more years immediately preceding his death. 5. The Veteran did not have a service-connected disability that was continuously rated as being totally disabling for a period of not less than five years from the date of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310, 5103, 5013A; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310, 3.312. 2. The criteria for entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 are not met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1943 to November 1946. The Veteran died in December 2010. The Appellant seeks surviving spouse benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Appellant testified before the undersigned Veterans Law Judge at a hearing in October 2019. A transcript of the hearing is of record. DIC 1. Entitlement to service connection for the cause of the Veteran's death 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. That determination will be made by exercising sound judgment, without recourse to speculation, after a careful analysis of all the facts and circumstances surrounding the death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service connection for the cause of a veteran's death may be demonstrated by showing that the death was caused by a disability for which service connection had been established at the time of death or for which service connection should have been established. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. In the same category there would be included service-connected disease or injuries of any rating, but of a static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service connection may be established for a disability resulting from injury incurred or disease contracted in the line of duty in active service, or for aggravation of a preexisting disability in the line of duty in active service. 38 U.S.C. § 1110,1131; 38 C.F.R. § 3.303. In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Appellant contends that the Veteran's death was due to active service. Specifically, the Appellant asserts that the Veteran's service-connected PTSD contributed substantially or materially to the cause of death. At the time of death, the Veteran had established service connection for posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss. The December 2010 death certificate shows that the Veteran died as a result of cardiac arrest due to atherosclerosis with pleural effusion being a significant condition contributing to death. In a December 2010 statement, C. R.-S., M.D. stated that the Veteran had "multiple medical problems" which were all connected to PTSD. The doctor stated that a service-connected PTSD disability was the cause of the Veteran's death. Specifically, the doctor stated that an altered gait, which was secondary to PTSD, caused the Veteran to fall, develop a large hemothorax and subsequent complications, and die. However, other medical evidence shows that the Veteran's altered gait, fall, and hemothorax were related to other nonservice-connected medical conditions and medications associated with those conditions. For example, a November 2010 cardiologist noted an altered mental state, hypotension, and a "fall with resultant hydropneumothorax." The cardiologist stated that the cause of the altered mental state and hypotension could be multifactorial and that dizziness prior to the fall could be secondary to hypotension. In November 2010, a nurse noted that the Veteran was a fall risk due to polypharmacy. Additionally, November 2010 imaging studies of the head and chest showed microvascular ischemic disease and extensive atherosclerotic disease. A November 2010 medical report indicates that coumadin was discontinued because the Veteran's INR levels at the time of admit were elevated to 12.3. As the December 2010 letter from Dr. R.-S. did not discuss the documented alternative etiologies for the Veteran's altered gait, fall, and hemothorax, the Board finds the December 2010 letter to be of less probative weight and outweighed by the other evidence of record. In an August 2011 addendum, C. R.-S., M.D. stated that the Veteran had generalized atherosclerosis which involved mainly the brain, cerebral blood vessels, and the coronary arteries. The examiner stated that the Veteran did not have diabetes or dyslipidemia. The examiner felt that the Veteran's only cause leading to atherosclerosis was PTSD. Dr. R.-S. stated that PTSD was found to be an independent factor for heart disease according to the American Heart Association (AHA) Scientific Sessions from 2010. The doctor opined that PTSD was a direct contributor to the Veteran's demise. The Board notes Dr. R.-S.'s general reference to the AHA's 2010 Scientific Sessions. However, Dr. R.-S. did not reference any specific seminar from the AHA's 2010 Scientific Sessions or any specific articles or research to support the opinion. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). As Dr. R.-S. only gave general references to support the opinion, the Board finds the August 2011 addendum to be of less probative weight and outweighed by the other evidence of record. In November 2012, a VA examiner reviewed the claims file and opined that it was not at least as likely as not that the Veteran's PTSD materially contributed to the Veteran's cause of death. The examiner explained that the preponderance of currently established scientific and medical evidence did not support any relation between PTSD and atherosclerotic heart disease. In an August 2020 private medical opinion, C.R.-S., M.D. stated that the Veteran had multiple medical problems: hypertension, chronic atrial fibrillation, partial complex seizures, PTSD with insomnia, nightmares, headaches, panic attacks, cervical radiculopathy, low back pain syndrome, degenerative joint disease of the knees, mild memory loss, umbilical hernia, and multiple skin cancers that required excision and at times radiation treatment. The examiner opined that all of the above conditions were directly linked to the attacks on the Veteran's battalion by two kamikaze planes in May 1945, during service in World War II. The Board finds the August 2020 opinion from Dr. R.-S. to be incomplete, as the examiner did not provide an adequate rationale to support the opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). The examiner simply stated that the listed disabilities were linked to active duty service. The examiner did not provide any rationale for this opinion or link any of the disabilities to the Veteran's death. The examiner did not properly explain what led to the opinion and cited no supporting evidence. Thus, the Board finds the August 2020 private medical opinion is incomplete and outweighed by the other evidence of record. In an August 2020 VA opinion, after review of the claims file, the examiner, a psychologist, stated that it is well documented that heart disease is the leading cause of death worldwide. The examiner stated that some studies had indicated that there was a link between PTSD and cardiovascular disease and that PTSD was an independent risk factor. However, the examiner also noted that while traumatic stress tended to activate the hypothalamic pituitary-adrenal (HPA) axis and sympathetic-adrenal-medullary system causing an increase in certain neurotransmitters and hormones that can damage the cardiovascular system, numerous other factors such as one's behaviors could increase CVD risk such as a history of smoking, decreased activity levels, and substance use. Thus, while acknowledging that recent studies had suggested associations between PTSD and coronary heart disease risk, no direct link between PTSD and cardiovascular disease had been established, and the professional cardiovascular societies have not officially recognized PTSD as a cardiovascular risk. Thus, in summary, the examiner stated that findings in their totality showed the Veteran was service-connected for PTSD that was incurred in or caused during service during World War II. The examiner's record review indicated that Veteran had multiple medical conditions in addition to PTSD. The examiner stated that CVD was the number one cause of death worldwide, and atherosclerosis was the most common cause of CVD independent of PTSD. The examiner stated that studies had documented multiple risk factors for CVD to include hypertension, hyperlipidemia, diet, exercise, family history, alcohol, stress, age, and genetics. The examiner summarized that while studies had shown a link between PTSD and CVD, and PTSD being an independent risk factor, research studies had not established a cause and effect relationship between the two or found that PTSD is a primary risk for CVD or cardiac atherosclerosis. The examiner also included several citations to support the rationale. The examiner further opined that it was less likely as not that PTSD substantially or materially contributed to the Veteran's death, or caused a cardiac or cardiovascular disability as there was no direct link between PTSD and cardiovascular disease (CVD). The examiner acknowledged that while PTSD is a risk factor, there was no evidence that PTSD is the primary risk factor for CVD. The examiner also opined that it was less likely as not PTSD caused a cardiac or cardiovascular disability as there is no cause and effect relationship between PTSD and CVD or cardiac arrest due to atherosclerosis and contributing cause of pleural fusion. Next, the examiner opined that it was less likely that PTSD aggravated a cardiac or cardiovascular disability, considering the Veteran's multiple medical conditions, environmental/behavioral risk factors, and psychosocial stressors. Rather, the Veteran's CVD and severity were attributed to multiple risk factors. The examiner opined that it was less likely than not that the fall that resulted in the Veteran's death was caused by PTSD or medications prescribed for PTSD, as there were no psychiatric medications noted in the available evidence. The examiner found no association between falls and PTSD. The examiner noted that the Veteran's problems with balance may be possibly attributed to neurological issues as noted by a 2007 MRI which showed generalized cerebral atrophy and suspect subcortical infarct which would be consistent with the Veteran's symptoms of imbalance and dysphagia. The examiner concluded the opinion by stating that considering the Veteran's multiple risk factors that may be contributing to CVD, it was not possible to objectively rule out or assess the possible impact that PTSD might have had on Veteran's functioning or the cause of death, considering the available evidence without resorting to speculation. In January 2021, a VA examiner reviewed the evidence of record and noted that the Veteran was service connected for PTSD, tinnitus, and hearing loss. It was further noted that the Veteran died of cardiac arrest. The examiner commented that atherosclerosis refers to the buildup of fats, cholesterol, and other substances in and on the artery walls which can restrict blood flow. The examiner explained that atherosclerosis happens when the endothelium becomes damaged due to factors such as smoking, high blood pressure, or high levels of glucose, fat, and cholesterol in the blood. The examiner found no literature that supported the theory that PTSD or its treatment, tinnitus, or hearing loss were causally related to atherosclerosis and pulmonary effusion. The examiner stated that the most common causes of transudative pleural effusions include heart failure, pulmonary embolism, cirrhosis, and post-open heart surgery. Therefore, the examiner opined that it was less likely than not that any of the Veteran's causes of death, to include cardiac arrest, atherosclerosis, and pulmonary effusion, were due to, related to, caused by, or aggravated by the service-connected disabilities. Taken together, the Board finds the August 2020 and January 2021 VA examiners' opinions to be the most probative evidence of record. The two opinions outline the reasons why the examiners opined that the Veteran's death was less likely to be related to service or the service-connected disabilities. The examiners considered the lay statements, the service medical records, the post-service records, and explained the factors behind the determinations that the Veteran's death was less likely to be related to service or the service-connected disabilities. Additionally, the Veteran's other risk factors were acknowledged. Taken together, the Board finds the August 2020 and January 2021 VA examiners' opinions to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Regarding the various articles submitted by the Appellant, the Board observes that medical articles or treatises can provide important support when combined with the opinion of a medical professional if they discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). However, standing alone, the medical treatise evidence provided by the Appellant is too general to make a causal link between the Veteran's death and service or the service-connected disabilities, to include PTSD, that is more than speculative in nature. Moreover, the August 2020 VA examiner who provided an opinion on the specific facts of this case noted medical treatise information concerning PTSD and cardiovascular disease and concluded that it was less likely than not that the Veteran's death was related to or aggravated by service or service-connected disability, to include PTSD. Therefore, the Board finds that the statements in the articles submitted by the Veteran are outweighed by the VA examiners' assessments of the medical literature as a whole. Hayes v. Brown, 5 Vet. App. 60 (1993). Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The preponderance of the evidence is against a finding of a causal connection between the Veteran's service or service-connected disabilities and the cause of his death. The Board is sympathetic to the Appellant in that it is clear she sincerely believes the cause of the Veteran's death is related to service. However, the most probative and persuasive evidence of record does not support that contention. Although the Board is appreciative of the Veteran's faithful and honorable service to our country, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318 If a Veteran's death is not due to a service-connected disability, a surviving spouse may still be entitled to DIC benefits in the same manner as if a Veteran's death were service-connected if a Veteran was, at the time of death, in receipt of, or entitled to receive, compensation for a service-connected disability rated totally disabling if: (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of the Veteran's discharge or other release from active duty; or (3) the Veteran was a former prisoner of war, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. § 3.22(a). At the time of the Veteran's death, service connection had been established for PTSD, rated 100 percent; tinnitus, rated 10 percent; and hearing loss, rated 0 percent. The Veteran had been continuously assigned a 100 percent (total) disability rating since April 30, 2004. However, although VA rated the Veteran's service-connected disabilities as being totally disabling prior to his death, the service-connected disabilities were not continuously rated as being totally disabling for a period of 10 or more years immediately preceding the Veteran's death in December 2010. Additionally, the Veteran did not have a disability that was continuously rated as being totally disabling for a period of not less than five years from the date of separation from service. VA regulations allow for surviving spouses to receive DIC benefits if the Veteran was a former prisoner of war who had a disability that was continuously rated as being totally disabling for a period of not less than one year immediately preceding death. The service personnel records do not show, and the Appellant has not contended, that the Veteran was a former prisoner of war. Although the Board recognizes the Veteran's service on behalf of his country and is sympathetic with the Appellant's loss of her husband, the Board is nonetheless bound by VA regulations. In this case, the applicable law passed by Congress does not provide a basis to award the benefit sought. Accordingly, the criteria for establishing entitlement to DIC benefits under 38 U.S.C. § 1318 have not been met. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 1318; 38 C.F.R. § 3.22 (a). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.