Citation Nr: 21031172 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-36 846 DATE: May 20, 2021 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran died in January 2015; his amended death certificate listed liver failure and stage IV esophageal carcinoma as the cause of his death with arteriosclerosis as a significant condition contributing to death. 2. The Veteran cannot be presumed to have died of a service-connected disability and a disability incurred in or aggravated by service is not shown to have been a principal or contributory cause of death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38U.S.C. §§1110, 1112, 1113, 1310; 38C.F.R. §§3.303, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service with the United States Army from January 1966 to June 1975 with service in Vietnam. The Veteran died in January 2015. The surviving spouse is the Appellant. This matter was previously before the Board of Veterans' Appeals (Board) in March 2019 and June 2019, and was remanded for addendum medical opinions, which has been completed. The Appellant appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). The Appellant abandoned the issue denying entitlement to DIC and disputed the remanded issue of entitlement to service connection for cause of death. In February 2020, the Court dismissed the appeal of entitlement to service connection for cause of death because it lacked jurisdiction to adjudicate the issue. The Board also wishes to apologize to the Appellant for the delays in the full adjudication of her claim. Entitlement to service connection for cause of death The Appellant contends the Veteran's death was service-connected due to arteriosclerosis and herbicide exposure, being a significant condition contributing to death. The Appellant also contends the Veteran's cause of death was directly related to his service-connected diabetes and peripheral artery disease. Lastly, the Appellant contends that a June 2020 rating decision conceded the Veteran's death was related to his heart disability. This is the only issue on appeal. As an initial matter, the Board evaluates the evidence de novo, and is not bound by legal or factual findings of the RO. See 38 U.S.C. § 7104. VA death 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, 3.312. To establish service connection for the cause of the 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. 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. For a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; it combined to cause death; or that it aided in the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (b), (c). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but 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). The National Defense Authorization Act for Fiscal Year 2021 added 3 disorders to the list of presumptively associated diseases with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116 (a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. The Veteran died in January 2015. His death certificate initially listed the cause of death as liver failure and stage IV esophageal carcinoma. In July 2015, the Veteran's death certificate was amended to include arteriosclerosis as a significant condition contributing to death. The physician did not provide an explanation for this amendment. At the time of his death, the Veteran was service connected for the following: Diabetes mellitus type II with erectile dysfunction; Peripheral arterial disease, left lower extremity associated with diabetes mellitus type II with erectile dysfunction; Peripheral arterial disease, right lower extremity associated with diabetes mellitus type II with erectile dysfunction; Peripheral neuropathy, left lower extremity associated with diabetes mellitus type II with erectile dysfunction; and Peripheral neuropathy, right lower extremity associated with diabetes mellitus type II with erectile dysfunction. None of the listed service-connected disabilities caused or contributed substantially or materially to the Veteran's death. A June 2017 VA examiner reviewed the available medical records and noted the Veteran died of liver failure due to widespread metastatic squamous cell carcinoma of the esophagus. The Veteran's peripheral vascular disease of the lower extremities was based on a low ankle-brachial index of the left leg in 2010 without symptoms. There was no evidence prior to death of any peripheral vascular disease, diabetic or neuropathy with its complications, treatment, or debilitating effects, or other service conditions that would have contributed to his death. Therefore, the examiner opined the Veteran's death is less likely than not proximately due to or the result of the Veteran's service-connected conditions. A VA addendum opinion was obtained in May 2019 to ensure the duty to assist was met. The examiner reviewed the National Academy of Science (NAS) scientific evidence to determine whether there is a statistical association between suspected diseases and herbicide exposure, the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam, and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. Based on the cumulative scientific data, the NAS has determined there is no positive association between herbicide exposure and esophageal carcinoma. The Veteran underwent ankle-brachial index ratios in March 2010 for a disability benefits questionnaire regarding possible lower extremity peripheral vascular disease. There were diminished bilateral foot pulses. The right was normal while the left had moderate vascular insufficiency. Furthermore, the Veteran denied peripheral vascular disease. His lower extremity vascular insufficiency was as likely as not related to his service-connected diabetes. The Veteran was service connected for diabetes mellitus, but it did not contribute significantly to his rapid demise from widespread metastatic esophageal carcinoma. There was no other significant arteriosclerosis. Furthermore, there was no active colon cancer and the Veteran's bladder cancer showed no recurrence on cystography in April 2014. Another VA addendum opinion was obtained in January 2020. The examiner opined it is less likely than not that the Veteran's peripheral arterial disease of the bilateral lower extremities, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities were a principle or contributory cause of the Veteran's death or materially hastened death. In reaching this rationale, the examiner noted the body of record does not contain evidence that the Veteran had symptoms of these conditions during the final months of his life, include his terminal hospitalization. Furthermore, the body of record does not contain evidence that the Veteran's treating providers reported these conditions as an active problem during the final months of his life, including his terminal hospitalization. The examiner noted that one would expect if these conditions had a significantly detrimental impact or detrimental effect on the Veteran's health that it would be reported at the time of hospital discharge. The body of record does not support this contention. Moreover, the body of record contains no evidence that these conditions aggravated or negatively affected treatment of the Veteran's esophageal cancer. Therefore, the examiner found the preponderance of the evidence does not show that peripheral arterial disease of the bilateral lower extremities, diabetes mellitus, and peripheral neuropathy of the bilateral lower extremities was a principle or contributory cause of the Veteran's death or materially hastened his death. As for ischemic heart disease, the examiner opined that it is less likely than not that the Veteran's condition was a principle or contributory cause of the Veteran's death or materially hastened death. The most recent cardiac evaluation documented in the record was a nuclear stress test on July 2012. This stress test was reported as normal, meaning there was no evidence of coronary artery blockages or prior heart attack (myocardial infarction). The stress test was obtained due to the Veteran's complaints of chest pain. Medical records showed that cardiac medication (including nitroglycerin) was prescribed as a precaution until this stress test could be obtained. Prescription of such precautionary medication is routine and does not imply the existence of subsequent ischemic heart disease. Medical records are consistently silent for the diagnosis of ischemic heart disease with the exception of one note on November 26, 2014, which reports "coronary artery disease." At that visit the Veteran did not report cardiac symptoms and his physical examination and heart was reported as normal, but no cardiac testing was performed. All subsequent medical records do not report coronary artery disease or other ischemic heart disease conditions. The record does not contain evidence that the Veteran had ischemic heart disease. Furthermore, VA interprets ischemic heart disease as encompassing any atherosclerotic heart disease resulting in clinically significant cardiac ischemia or requiring coronary revascularization. The record does not contain evidence that the Veteran had clinically significant ischemia or coronary revascularization to meet the VA definition. Moreover, the record does not contain evidence that the Veteran had symptoms of ischemic heart disease during the final months of his life, including his terminal hospitalization. Instead, the Veteran specifically denied chest pain. The record also does not contain evidence that the Veteran's treating providers reported this condition as an active problem during the final months of his life, including his terminal hospitalization. There is no evidence that ischemic heart disease aggravated or negatively affected treatment of the Veteran's esophageal cancer. Therefore, the preponderance of the evidence does not show that ischemic heart disease was a principle or contributory cause of the Veteran's death or materially hastened his death. Lastly, the examiner opined that it is less likely than not that arteriosclerosis was a principle or contributory cause of the Veteran's death or materially hastened death. Arteriosclerosis was added to the Veteran's death certificate 6 months after his death with no explanation provided for this addition. An August 2019 statement from the Appellant suggested that arteriosclerosis and coronary artery disease/ischemic heart disease are synonymous conditions. However, arteriosclerosis and coronary artery disease/ischemic heart disease are not medically synonymous conditions. Arteriosclerosis is the process of artery wall thickening, stiffening, and narrowing. This process can occur throughout the body. Coronary artery disease/ischemic heart disease is the process of arteriosclerosis when it occurs in the arteries serving the heart (coronary arteries). Although they describe the same process, the condition of ischemic heart disease is not inferred from the term arteriosclerosis. The only arteriosclerosis condition supported by the body of evidence was the Veteran's peripheral arterial disease of the bilateral lower extremities, which, as discussed above, was not a principle or contributory cause of the Veteran's death or materially hastened his death. Thus, while the Board is sympathetic to the appellant's loss of her husband, service connection for the cause of the Veteran's death is not warranted under any theories of entitlement raised by the appellant or by the evidence of record. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is now significant evidence against this claim. Both the service records, the post-service treatment records, and the best medical opinions all provide evidence against this claim. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.