Citation Nr: 21030623
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 15-46 271
DATE: May 19, 2021

ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.

Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is denied.

FINDINGS OF FACT

1. The Veteran had active service in Vietnam during the Vietnam era.

2. The Veteran died at home in August 2014, and his original death certificate, indicated that the Veteran's death was caused by cardiac dysrhythmia and respiratory failure. The amended October 2014 death certificate indicated that the causes of the Veteran's death were sudden cardiac arrest and posttraumatic stress disorder (PTSD).

3. Service connection was not in effect for any disability at the time of the Veteran's death.

4. There is no competent and credible evidence that the Veteran was diagnosed with ischemic heart disease during his lifetime.

5. A disability of service origin did not cause or contribute substantially or materially to the cause of the Veteran's death.

6. The Veteran was not continuously rated totally disabled due to service-connected disability, or due to unemployability, for at least 10 years preceding his death; nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death; nor would he have been in receipt of such compensation in either case, but for clear and unmistakable error in a prior decision; and he was not a former prisoner of war (POW).

CONCLUSIONS OF LAW

1. The criteria for establishing 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. §§ 3.303, 3.307, 3.309, 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 from July 1967 to July 1970, to include service in the Republic of Vietnam. He died in August 2014, and the appellant is the Veteran's surviving spouse. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) that denied service connection for the cause of the Veteran's death (which is one basis for DIC), and denied DIC benefits under 38 U.S.C. § 1318.

The appellant testified before the undersigned in a January 2019 Board hearing and the hearing transcript is of record.

In April 2019, the Board remanded this case, in part, in order for VA to adjudicate the intertwined claim of entitlement to service connection for posttraumatic stress disorder (PTSD) for accrued or substitution purposes. In April 2019, VA issued a rating decision denying service connection for PTSD, and the appellant did not appeal this determination. As such, the Board can now move forward with the adjudication for entitlement to service connection for cause of the Veteran's death and DIC benefits.

In September 2020 the Board remanded the appeal to the AOJ for additional development, and the case was subsequently returned to the Board.

DIC

1. Service connection for the cause of the Veteran's death

The appellant contends that the Veteran's cause of death was due to ischemic heart disease as a result of Agent Orange exposure in Vietnam, or in the alternative, to PTSD from combat service in Vietnam. See Appellant's multiple written statements and testimony at the January 2019 Board hearing. She testified that the Veteran did not like to go to the doctor, and rarely complained. In her written statements and testimony, she noted that she finally convinced him to seek treatment for PTSD from VA in July 2014, but then he died unexpectedly in August 2014, before he could attend his first appointment. She contends that if he had been seen by VA, they would have diagnosed ischemic heart disease, and that VA cannot prove that his heart problem was not related to Agent Orange, or that PTSD was not a factor in his death because there are no records. She asserts that that reasonable doubt should be resolved in her favor. See Appellant's May 2015 statement and hearing testimony.

In a November 2014 statement, the appellant stated that when the Veteran died, she was the one who found him lying on his back in their backyard. After the emergency personnel arrived, the coroner, C.U., pronounced him dead at the scene, and told her he had a massive heart attack. An autopsy was not done. She stated that during the last several weeks before his death, he sometimes made a fist, extended his fingers, and shook his left hand. She now suspects that he was having heart symptoms at that time because pain and numbness of the arm are symptoms of a heart condition, and he was not feeling well a few days before he died. See Appellant's April 2015 statement.

In multiple statements, the appellant described his behavior and mental health symptoms, and asserted that he had undiagnosed PTSD for many years. See Appellant's written statements dated in November 2014, April 2015, and October 2019. She stated that he abused her emotionally and physically, and he had irritability, road rage, obsessive-compulsive behavior with checking of switches, locks, and windows, flashbacks, nightmares about Vietnam, sat facing the door when they went out, could not tolerate crowds, and kept a gun beside the bed.

In May 2015, the appellant submitted lay statements from the Veteran's sister, friends, and coworkers that are collectively to the effect that he had emotional issues and sleep difficulties related to his service during the Vietnam War. A.O., a friend and coworker of the Veteran, stated that the Veteran told him about traumatic events during combat in Vietnam and that he believed the Veteran suffered from PTSD. In May 2015, the Veteran's sister stated that when the Veteran returned from Vietnam, his personality was different, he was distant, reserved, and quiet, and he had many triggers, including helicopters and loud noises. She said that before he died, he told her that his wife had finally convinced him to seek help for his PTSD.

DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a)(1).

In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). In order to constitute the principal cause of death, the service-connected disability must be 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 inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312 (c)(1).

Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309 (e), it will be presumed that he was exposed to herbicide agents if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).

The Veteran's service personnel records reflect that he served in the Republic of Vietnam from January 1968 to January 1969, during the Vietnam Era, and is presumed to have been exposed to an herbicide agent (to include Agent Orange). 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307. Certain specified diseases are presumptively service connected based on herbicide exposure, including ischemic heart disease (IHD). See 38 C.F.R. § 3.309 (e). IHD includes, but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina. 38 C.F.R. § 3.309 (e). For purposes of this section, the term IHD does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Id., Note 2.

Moreover, certain chronic diseases, including cardiovascular-renal disease (which includes hypertension), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

During the Veteran's lifetime, service connection was not established for any disability. His death certificate indicates that he died at home in August 2014. The original death certificate, completed by C.U., coroner, indicated that the Veteran's death was caused by cardiac dysrhythmia and respiratory failure. The amended October 2014 death certificate, also completed by C.U., indicates that the causes of the Veteran's death were sudden cardiac arrest and PTSD. 

The Board previously remanded this case for the AOJ to contact the Alabama Department of Public Health to determine why the original death certificate was amended. The AOJ did so, and in response, the Alabama Department of Public Health merely provided a duplicate copy of the original and amended death certificates.

The appellant has submitted a December 2015 letter from C.U., the coroner who signed the Veteran's original and amended death certificates. He stated that when he first saw the Veteran lying in his backyard, he exhibited the signs of a person who had experienced sudden cardiac arrest. He said that at that time, the Alabama computer system only listed a limited number of causes of death from which he could choose, and he originally chose cardiac dysrhythmia with respiratory failure. After speaking with the Veteran's family members, he filed an additional medical certification at a later date to better summarize the Veteran's cause of death. He said the Veteran's family members told him that the Veteran was a Vietnam Veteran, and due to his habits, he fit the category of someone who had PTSD, and had even filed an informal claim with VA for service connection for PTSD. C.U. said he came to the conclusion that the Veteran had a sudden cardiac arrest with PTSD as a contributing factor.

Service treatment records are entirely negative for a heart condition, high blood pressure, or PTSD, and his heart was clinically normal on separation medical examination in May 1970. A May 1970 chest X-ray study was negative. In a May 1970 report of medical history, the Veteran denied a history of heart trouble, chest pain or pressure, high or low blood pressure, nervous trouble, and depression or excessive worry.

Post-service medical records are negative for a diagnosis of PTSD, hypertension or IHD.

The appellant has submitted private medical records dated in February 2013, including a February 2013 electrocardiogram (ECG) showing normal sinus rhythm, right bundle branch block, left anterior fascicular block, and bifascicular block, and a report of laboratory blood tests. She has also submitted internet articles regarding IHD and bifascicular block on ECG, to the effect that a bifascicular block can occur as part of IHD, and regarding the warning signs of a heart attack. She testified that the Veteran never complained about any heart symptoms, and never followed up with a physician regarding any heart condition after the February 2013 ECG. See hearing transcript, pages 3, 14.

Upon review of the record, the Board finds the evidence does not support a finding of service connection for the cause of the Veteran's death. The terminal condition of cardiac dysrhythmia and cardiac arrest listed in the original and amended death certificate is not a disability to which the herbicide presumptions apply. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). In other words, cardiac dysrhythmia and cardiac arrest is not a disability recognized by VA as being due to herbicide exposure, and therefore it is not subject to presumptive service connection on the basis of herbicide exposure. Id. The Board finds that the weight of the competent evidence shows that the Veteran did not have a diagnosis of IHD.

The October 2015 VA examiner reviewed the claims file and opined that it cannot be stated without resort to mere speculation that the Veteran had IHD. The rationale was that there is nothing in the medical record indicating that he had IHD. He did have a bifascicular block which can be associated with various heart problems but is also more common with advanced age. Based on the description of events, the Veteran died a sudden, unwitnessed death. Several things can cause this including a myocardial infarction, arrhythmia, pulmonary embolus and cerebrovascular accident (CVA) among others. The death certificate originally states that he died from a cardiac dysrhythmia and respiratory failure. Cardiac dysrhythmia is non-specific in that it means he had an abnormal heartbeat. Abnormal heart beats would be likely in all deaths as would respiratory failure. The revised death certificate lists sudden cardiac arrest as the cause of death. This is also non-specific as it means that the heart suddenly stopped beating. The heart stops beating in all deaths regardless of the cause. PTSD is not a known cause of cardiac arrest making unlikely to be actually associated with his death. 

The October 2015 VA examiner opined that the service treatment records did not reveal a diagnosis which would have at least as likely as not contributed to the Veteran's death or make him debilitated and render him materially less capable of resisting the effects of other disease or injury that led to his death. The rationale was that the service treatment records did not show that the Veteran had a chronic illness. The May 1970 separation physical did not list any medical problems other than a history of fractures of the nose and right ankle. 

The Board also finds that the evidence shows that cardiovascular-renal disease was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Private treatment records show the Veteran was not diagnosed with any heart abnormality until February 2013, decades after his separation from service and decades outside of the applicable presumptive period. The appellant testified that the Veteran never complained about any heart symptoms.   

While the appellant is competent to describe her observations that during the last several weeks before his death, the Veteran sometimes made a fist, extended his fingers, and shook his left hand, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of IHD or a myocardial infarction, as she has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 

The Board finds that the internet articles submitted by the appellant regarding ECG interpretation and IHD are general in nature, and equivocal, and therefore do not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board gives more probative weight to the competent medical evidence, which indicated that the findings on the February 2013 ECG did not demonstrate that the Veteran had IHD. See October 2015 VA examination. And, despite the appellant's contentions, there is no competent and credible evidence that the Veteran had IHD during his lifetime. Finally, no medical professional has suggested that the Veteran's death was related to herbicide exposure. Therefore, service connection is not warranted for the cause of the Veteran's death on a presumptive basis based on exposure to an herbicide agent. See 38 U.S.C. § 1116, 38 C.F.R. §§ 3.307 (a)(6), 3.309(e).

With regard to the appellant's assertion that the Veteran had PTSD which was a contributory cause of death, she and the Veteran's friends and family are not competent to provide a diagnosis of PTSD. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 

Although C.U., in the revised death certificate, opined that the Veteran had a sudden cardiac arrest with PTSD as a contributing factor, the Board finds that his opinion is less probative than that of the December 2020 VA examiner, because the diagnosis of PTSD was based entirely on the reported lay history by the appellant, and there is no indication that C.U. reviewed any of the Veteran's medical records. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993).  

In contrast, the October 2020 VA examiner, a psychologist, reviewed the claims file, including the appellant's statements and the Veteran's medical records, and opined that it was less likely than not that the Veteran had PTSD caused by service in Vietnam. The rationale was that there is no evidence of the presence of symptoms of PTSD or any other mental illness in his service medical records, he never sought or was referred for mental health or medical treatment of symptoms of PTSD or any mental health disorder following service, and there is no evidence of symptoms of PTSD in his post-service medical records. The examiner noted further that the diagnosis was provided in hindsight by the coroner who was also a paramedic but not a mental health clinician. The examiner also noted that the Veteran's spouse believed that the Veteran had PTD and that this led to his death, and that she and other individuals provided lay statements documenting a number of symptoms commonly found in PTSD such as nightmares, irritability, hypervigilance, angry outbursts, psychological reactivity at reminders, insomnia, changes in cognition, and mood; the Veteran's sister testified that these symptoms had their onset after Vietnam. The examiner stated that this demonstrates that the Veteran showed indications of symptoms possibly related to PTSD. Such symptoms may satisfy some but not all pf the diagnostic clusters for PTSD. The examiner noted that diagnosing PTSD requires the presence of eight clusters of symptoms and a certain number of symptoms within each cluster, the presence and etiology of some of which is not possible to assess in hindsight without speculation. The examiner stated that there is well-known overlap of symptoms between mental health conditions. The examiner stated further that collaborative information is important in assessment of mental health conditions; however, it is not sufficient to distinguish between different diagnoses or determine etiology of symptoms. 

Upon review of all of the evidence of record, the Board finds that the weight of the evidence does not show that the Veteran's death was related to service. As there is no evidence in the service treatment records to support direct causation of heart disease, no diagnosis of IHD, no manifestation of cardiovascular disease within one year of separation from service to support presumptive causation, and insufficient evidence to alternatively support presumptive service connection based on herbicide exposure during the Veteran's Vietnam service, the Board finds that the weight of the evidence is against the claim.

For these reasons and bases, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran's terminal condition  developed many years after service, and that this condition was not caused by any incident of his service, including his presumed exposure to an herbicide agent.

The weight of the competent and probative evidence establishes that a disability incurred in or aggravated by service did not cause or contribute to the Veteran's death, and thus service connection for the cause of his death is not warranted. The preponderance of the evidence is against the claim; thus, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. DIC under 38 U.S.C. § 1318 

The appellant has made no specific contentions regarding the claim for DIC benefits under 38 U.S.C. § 1318.

VA death benefits may be paid to a deceased Veteran's surviving spouse in the same manner as if the Veteran's death is service-connected, even though the Veteran died of nonservice-connected causes, if the Veteran's death was not the result of his or her own willful misconduct and at the time of death, the Veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the Veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the Veteran was a former POW who died after September 30, 1999. 38 U.S.C. § 1318. The total rating may be either schedular or based upon unemployability. Id. 

Essentially, the only possible ways of prevailing on a claim for benefits under 38 U.S.C. § 1318 are: (1) to meet the statutory duration requirements for a total disability rating at the time of death; (2) to show that such requirements would have been met, but for clear and unmistakable error (CUE) in a previous decision; or (3) to show that service department records in existence at the time of a prior VA decision, which were not previously considered by VA, provide a basis for reopening a claim finally decided during the Veteran's lifetime and for awarding a total service-connected disability rating retroactively.

Based on the evidence of record, the Board finds that the requirements of 38 U.S.C. § 1318 for an award of DIC benefits are not met. First, the Veteran did not have any established service-connected disabilities during his lifetime, and therefore did not meet the durational requirement for a total disability rating under 38 U.S.C. § 1318. As such, the Veteran was not rated totally disabled for a continuous period of at least 10 years immediately preceding death; nor was he rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death. Additionally, the Veteran was not a former POW.

The next issue is whether either of the aforementioned durational requirements for a total rating necessary to satisfy 38 U.S.C. § 1318 would have been met, but for CUE in a decision on a claim filed during the Veteran's lifetime. There was no VA decision on a claim for service connection during the Veteran's lifetime, and thus there was no CUE in such a decision.

In sum, the Board finds that the basic threshold criteria for establishing entitlement to DIC benefits under 38 U.S.C. § 1318 are not met, and the claim must be denied. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. L. Wasser, 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.