Citation Nr: 21041197 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-24 357 DATE: July 8, 2021 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in June 2012. The cause of death was respiratory failure with failure to thrive and generalized weakness following complications from a gastric bypass reversal surgery. 2. The weight of competent and credible evidence is that kidney disease and hypertension were not primary or contributing causes of death. 3. At the time of his death, the Veteran had service-connected disabilities of ischemic heart disease with pacemaker; hiatal and ventral hernia; and prostate cancer. 4. The preponderance of the evidence establishes that a service-connected disability was not a principal or contributory cause of the Veteran's death, nor did such a disability hasten his death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1963 to September 1970 with service in the Republic of Vietnam. The Veteran died in June 2012. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant attended a Board videoconference hearing in March 2019 with the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board most recently remanded this issue to the RO for additional development in October 2019. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection for Cause of Death Service connection for the cause of a veteran's death may be granted if the evidence shows that a service-connected disability was either the principal or a contributory cause of death of a veteran. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312 (2020). To show that a service-connected disability contributed to death, the evidence must show that it contributed substantially or materially; or, that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2019). 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. Entitlement to service connection for the cause of the Veteran's death The appellant contends that the Veteran's death was caused by his exposure to Agent Orange while serving in Vietnam. The Veteran died in June 2012. His death certificate listed protein calorie malnutrition, kidney disease, and hypertension as the cause of death, and the appellant contends that kidney disease and hypertension were due to exposure to herbicides. However, as explained in more detail below, the Board finds that the Veteran's actual cause of death was respiratory failure with failure to thrive and generalized weakness following complications from a gastric bypass reversal surgery. At the time of his death, the Veteran had the following service-connected disabilities: ischemic heart disease with pacemaker; hiatal and ventral hernia; and prostate cancer. A December 2013 rating decision denied entitlement to service connection for weight gain and weight loss, gastric bypass surgery residuals, bowel blockages, gallbladder removal, neck blockages, a right shoulder disability, and a left knee disability. Service personnel records show that the Veteran had honorable active duty service in the Republic of Vietnam for less than one month in 1966 and is presumed to have exposure to designated herbicide agents. (Additional service in Vietnam was performed during a period of other than honorable service). See December 2013 rating decision. The Veteran's service treatment records (STRs) reflect that during his entrance examination he weighed 220 pounds. See May 1963 entrance examination. In August 2011 correspondence, the Veteran stated that prior to his gastric bypass surgery in 1980, he weighed 600 pounds. He attributed his weight to his service in Vietnam and exposure to Agent Orange and reported that his weight gain was not from eating. June 2012 private treatment records reflect that the Veteran had a history of prolonged hospitalization following surgery complications and was admitted for respiratory distress, hypotension, and hypoxia. His cardiac rate was within the normal range, but his breathing was diminished and shallow. The Veteran passed away during this hospitalization. In a March 2016 VA opinion, an examiner concluded that the Veteran's service-connected disabilities did not aggravate or impact his kidney disease or hypertension. The examiner found that the Veteran's death was a natural progression of kidney disease caused by long-standing hypertension. The appellant submitted a March 2019 private opinion in which a physician stated that he treated the Veteran from January 2011 to June 2012 and that during that time, the Veteran "suffered from severe weight loss, muscle weakness, fatigue, severe chronic kidney disease stage IV, intestinal disorders along with magnesium metabolism disorders. He was admitted to the hospital due to above symptoms and rectal bleeding. There is a high possibility that the main cause for all his symptoms was due to Agent Orange. [The Veteran] started being symptomatic in 1979 per wife." The private physician did not provide any explanation or rationale, did not appear to review the claims file, and relied heavily on lay statements by the appellant. An additional opinion was obtained in August 2019 pursuant to the July 2019 Board remand. A VA examiner determined that the Veteran's death certificate was incorrect. He concluded that the Veteran's medical treatment records did not support the death certificate information, and instead revealed that the Veteran died from gastric bypass reversal surgery complications. The examiner explained that the Veteran underwent gastric bypass surgery in 1980, and subsequently developed malabsorption, diarrhea, and malnutrition. A nephrology consultation described Veteran's kidney function as "close to baseline." The examiner also explained that the Veteran did not have hypertension at the time of his death, and instead had hypotension. He stated that the March 2016 VA opinion was incorrect. The Veteran underwent a gastric bypass reversal procedure in May 2012, complicated by a post-operative wound infection and right upper extremity thrombus. Therefore, the Veteran's death was caused by prolonged hospitalization and complications, and eventually lead to respiratory failure with failure to thrive and generalized weakness. Because the August 2019 VA opinion raised additional unanswered questions regarding the Veteran's cause of death and any relationship to his service, and additional opinion was obtained in March 2020. Following a review of the record, the VA examiner determined that the Veteran's 50 pound weight gain in service, and subsequent 330 pound weight gain in the ten years following separation was the result of too much fat being stored in the Veteran's body due to eating more calories than his body was using. The examiner explained that obesity was usually the result of a combination of inherited factors along with personal diet and exercise choices. The examiner stated that the Veteran's STRs did not identify a medical cause for the Veteran's morbid obesity such as Cushing Syndrome or hypothyroidism and that Agent Orange exposure was not a known risk factor for obesity. The examiner also determined that the Veteran's cause of death was due to respiratory failure with associated respiratory distress, hypoxia, and hypotension, which was caused by failure to thrive and generalized weakness from malabsorption, diarrhea, malnutrition from his gastric bypass in 1980 and subsequent gastric bypass reversal in May 2012 with prolonged hospitalization and complications. The examiner concluded that the Veteran's service-connected conditions (ischemic heart disease with pacemaker, hiatal and ventral hernia, or prostate cancer) did not serve as an immediate and/or underlying cause of death, explaining that these conditions were etiologically unrelated to the Veteran's cause of death. The examiner determined that the Veteran's service-connected disabilities did not contribute substantially or materially to Veteran's death because his medical record revealed "NORMAL/PATENT" coronary arteries, "NORMAL LV EF," and "NORMAL cardiac function." The Veteran's medical record did not reveal objective evidence of ischemic heart disease with pacemaker, hiatal hernia, ventral hernia, or prostate cancer as contributory factors to his death. The March 2020 VA examiner also explicitly addressed the March 2019 private opinion. He determined the private opinion was not accompanied by sufficient rationale. To the contrary, the VA examiner explained that the, "scientific literature [and] basic tenets of biological plausibility do not support the premise that [Agent Orange] exposure duration [for one] month approximately 40-45 years prior to the onset symptoms is a risk factor for all of the following: severe weight loss, muscle weakness, fatigue, severe chronic kidney disease stage IV, intestinal disorders along with magnesium metabolism disorders, and rectal bleeding." Furthermore, the VA examiner explained that the term "high possibility" used by the private opinion, did not meet the generally accepted nomenclature for "at least as likely as not." The Board has considered the appellant's theory that the Veteran's health conditions were caused by herbicide exposure and ultimately led to his death. However, the Board notes that the determination of the cause of the Veteran's death is clearly a matter well outside a layperson's expertise to address. Because the matter at hand requires medical expertise, and as the appellant lacks the requisite medical training to have the expertise to make medical diagnoses or provide opinions on matters regarding medical causation and etiology, her statements in this regard are therefore not entitled to any probative weight. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, the Board places more probative value on the March 2020 VA examiner's opinion because it considered the Veteran's specific medical history, considered pertinent medical literature, and provided a detailed explanation that contained clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board is cognizant of the late Veteran's honorable service and is sympathetic to his widow's situation, her personal belief in the existence of a relationship between the cause of the Veteran's death and his military service, no matter how sincere, is not probative of a nexus to service if unsupported by objective medical evidence. See Voerth v. West, 13 Vet. App. 117, 119 (1999). In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the appellant's claim of service connection for the Veteran's cause of death. The late Veteran's service-connected disabilities have not been shown to be causally related to his death or to have contributed materially or substantially to the cause of death. Moreover, his primary cause of death due to respiratory failure with associated respiratory distress, hypoxia, and hypotension, which was caused by failure to thrive and generalized weakness from malabsorption, diarrhea, malnutrition from his gastric bypass is unrelated to his military service. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.