Citation Nr: 21031162 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 11-24 744 DATE: May 20, 2021 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in May 2010. The certificate of death lists the immediate cause of his death as hypotension due to (or as a consequence of) probable pulmonary embolism or myocardial infarction. 2. At the time of the Veteran's death, he was service-connected for residuals of a gunshot wound to the right arm with complete lesion of the radial and ulnar nerve (70%); residuals of a gunshot wound to the right shoulder involving Muscle Group III (20%); residuals of a gunshot wound to the left arm involving Muscle Group VIII (10%); residuals of a gunshot wound to the right arm involving Muscle Group V (10%); residuals of gunshot wound, deep scars right upper and right lower arm, right middle finger, left lower arm and left arm (10%); residuals of a gunshot wound, painful scar of the right upper arm (10%); and residuals of a gunshot wound, scar of the right lower arm and right shoulder (0%). 3. The Veteran's service-connected disabilities did not cause or contribute substantially or materially to cause his death. 4. A service-connected disability is not shown to be a principal or contributory cause of 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 had active duty from February 1969 to June1971, including service in the Republic of Vietnam. He died in May 2010. The Appellant is his surviving spouse. This current matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee denied service connection for the cause of the Veteran's death. In May 2013, the Appellant and her daughter-in-law testified at a hearing before the undersigned Veterans Law Judge. In June 2014, the Board remanded this matter for additional development. In November 2014 and January 2018, the Board remanded the matter. Service connection for the cause of the Veteran's death To establish service connection for the Veteran's cause of death, the evidence of record must show that a disability incurred in, or aggravated by, active service either caused or contributed substantially or materially to the Veteran's death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of the Veteran's death. It is not sufficient to show that it casually shared in producing the Veteran's death, but rather it must be shown that there was a causal connection. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for 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). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). At the time of the Veteran's death, he was service-connected for residuals of a gunshot wound to the right arm with complete lesion of the radial and ulnar nerve (70%); residuals of a gunshot wound to the right shoulder involving Muscle Group III (20%); residuals of a gunshot wound to the left arm involving Muscle Group VIII (10%); residuals of a gunshot wound to the right arm involving Muscle Group V (10%); residuals of gunshot wound, deep scars right upper and right lower arm, right middle finger, left lower arm and left arm (10%); residuals of a gunshot wound, painful scar of the right upper arm (10%); and residuals of a gunshot wound, scar of the right lower arm and right shoulder (0%). According to the certificate of death, the Veteran died in May 2010 as a result of hypotension due to (or as a consequence of) probable pulmonary embolism or myocardial infarction. The Appellant asserts that the Veteran's fatal heart attack was caused by his in-service exposure to Agent Orange. The Appellant also asserts that the Veteran's cancer of the nasopharynx/oropharyngeal was caused by his exposure to Agent Orange, as physicians who treated the cancer thought it could have been related to such exposure. Initially, the Board finds that the Veteran's service-connected disabilities did not cause or contribute substantially or materially to cause his death. The record does not show, and the Appellant does not assert, that there was any link between these disabilities and the Veteran's death. Moreover, in a November 2018 report, a VA physician stated that the Veteran's gunshot wounds resulted in loss of function of the upper extremities, with the right hand and forearm much more impaired than the left, and essentially had upper extremity neuropathies which affected hand and forearm function. The physician noted that the medical records of the care prior to the Veteran's death showed a history of gunshot wounds to the upper extremities but did not show ongoing treatment for these injuries. The physician also noted that previous VA examinations indicated that the upper extremity gunshot wound injuries were stable. The physician stated that the upper extremity injuries did not affect vital organs and there is no evidence that these injuries caused debilitating effects on the Veteran's health. The physician observed that the medical literature shows that these types of injuries do not result in a reduction of life expectancy, and stated that these types of injuries would not have prevented the Veteran from being physically active, such as to have prevented him from walking. Given the above, the Board finds that the Veteran's service-connected disabilities did not cause or contribute substantially or materially to cause his death. Also, the record does not show, and the Appellant does not assert, that the pulmonary embolism noted on the death certificate had its onset in service or is otherwise related to service. There is also no medical opinion evidence indicating a link between the pulmonary embolism and service. Thus, the Board finds that the pulmonary embolism was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. Accordingly, service connection for pulmonary embolism is not warranted and that service connection for the cause of the Veteran's death based on this condition is not warranted. Turning to the Appellant's assertion that the Veteran's heart attack (myocardial infarction) and cancer of the nasopharynx/oropharyngeal were caused by his in-service exposure to Agent Orange, as he served in the Republic of Vietnam during the Vietnam Era, his exposure to herbicides is presumed. There is a rebuttable presumption of service connection for diseases associated with such exposure. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. This includes ischemic heart diseases, including myocardial infarction, atherosclerotic cardiovascular disease such as coronary artery disease and coronary bypass surgery, as well as stable, unstable, or Prinzmetal's angina. 38 U.S.C. § 1116(a)(2)(F); 38 C.F.R. § 3.309(e). Here, the death certificate shows that the Veteran died from hypotension possibly due to a myocardial infarction, but does not provide clear medical evidence as to whether the Veteran indeed suffered a myocardial infarction and, if so, whether it was a contributory cause of death. While the Veteran's cancer, variously diagnosed as squamous cell carcinoma of the nasopharynx and oropharyngeal cancer, is not among the conditions presumptively service connected due to exposure to certain herbicides, including Agent Orange, it is well established that a claimant might establish direct service connection when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, the Board requested a medical opinion on these matters. In a June 2014 report, a VA physician stated that a thorough review of the Veteran's medical records does not indicate a prior diagnosis of ischemic heart disease. The physician noted that a May 2010 CT of the head showed microvascular ischemic changes and August 2009 records showed stent placement for peripheral vascular disease (PVD), but stated that these conditions do not qualify within VA's generally accepted definition of ischemic heart disease. The Board's review of the medical evidence of record also fails to show that the Veteran had ischemic heart disease prior to his death. Given the above, the Board finds that the Veteran did not have ischemic heart disease, to include a myocardial infarction, at the time of his death. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. 38 U.S.C. § 1110. In the absence of proof of present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against a finding that the Veteran had a myocardial infarction, or any other form of ischemic heart disease, at any time during his lifetime. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As there is no disability that can be related to service, service connection for a myocardial infarction cannot be established. Accordingly, service connection for the cause of the Veteran's death based on this disease is simply not warranted. Turning to the Veteran's cancer of the nasopharynx/oropharynx, the first evidence of the cancer appears in a July 2009 private medical record showing that a needle biopsy was consistent with a squamous cell carcinoma of the nasopharynx. An August 2009 private medical record shows a history of hoarseness and sore throat for the past 4 to 5 months and a mass in the right side of the neck on examination. There is no indication that the Veteran had these symptoms prior to that time. That dates the onset of symptoms to almost 38 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, in a July 2010 letter, Dr. K., a private physician, stated that the Veteran's cancer is likely related to his cigarette smoking but that the possibility that it is related to his in-service exposure to Agent Orange cannot be ruled out. Thus, the doctor concluded that it is conceivable that the Veteran's cancer is related to such exposure. In another July 2010 letter, Dr. N., a second private physician, stated that the Veteran's exposure to Agent Orange could have contributed to his cancer of the nasopharynx. Thus, the Board requested a medical opinion. In a December 2018 report, a VA physician expressed agreement with Dr. K.'s opinion that the Veteran's cigarette smoking is the likely cause of his cancer of the nasopharynx, but disagreed with the Dr. N.'s opinion that it is conceivable that is it related to exposure to Agent Orange. The physician noted that the International Agency for Research on Cancer does not list Agent Orange, or herbicides at all, as a carcinogenic agent with sufficient evidence in humans in reference to cancer of the nasopharynx but does list tobacco smoking as a carcinogen with sufficient evidence in humans. The physician also cited a statement by the National Cancer Institute that tobacco use is a leading cause of cancer and of death from cancer, and people who use tobacco products or are regularly around environmental tobacco smoke (also called secondhand smoke) have an increased risk of cancer because tobacco products and secondhand smoke have many chemicals that damage DNA. While two private physicians have opined that the Veteran's in-service exposure to Agent Orange could have caused his cancer of the nasopharynx/oropharynx, their opinions were speculative in nature and not supported by any rationale. On the other hand, a VA examiner has opined that the Veteran's cancer is not due to his exposure to Agent Orange but rather his history of cigarette smoking, which an August 2009 private medical record shows as a greater than one pack per day for 45 years. The examiner also supported the opinion with citation to a finding by an international agency for cancer research that herbicides, including Agent Orange, have not been linked to cancer of the nasopharynx. As such, the Board finds the VA examiner's opinion to be of greater probative value. Hayes v. Brown, 9 Vet. App. 67 (1996). A lay person is competent to give evidence about observable symptoms such as hoarseness, a sore throat, and a lump in the neck. Layno v. Brown, 6 Vet. App. 465 (1994). A lay person is competent to address the etiology of a disability in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the record dates the onset of the Veteran's symptoms to almost four decades after his separation from active service, and the question of causation extend beyond an immediately observable cause-and-effect relationship. As such, the Appellant is not competent to address the etiology of the Veteran's cancer. Given the above, the Board finds that cancer of the nasopharynx/oropharynx was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. Thus, the Board concludes that service connection for cancer of the nasopharynx/oropharynx is not warranted. As such, service connection for the cause of the Veteran's death based on this disease is also not warranted. In sum, while the Board is sympathetic to the Appellant's situation, a service-connected disability is not shown to be a principal or contributory cause of the Veteran's death. Accordingly, the Board concludes that service connection for the (CONTINUED ON NEXT PAGE) cause of the Veteran's death is not warranted. As the preponderance of the evidence is against this claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.