Citation Nr: 22014017 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 19-23 211 DATE: March 11, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran's death certificate lists the immediate cause of his death as cardiac tamponade, due to or as a consequence of hemopericardium, due to or as a consequence of an ascending aortic aneurysm. 2. At the time of the Veteran's death, service connection was established for residuals of a left ear perforated tympanic membrane and residuals of a right inguinal hernia. 3. The evidence is not in approximate balance, but persuasively against a finding that the causes of the Veteran's death began during active military service or are otherwise related to his service or to service-connected disability; his service-connected disabilities are not shown to have contributed to his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38U.S.C. §1110, 1131, 1112, 1116, 5107(b); 38C.F.R. §3.303, 3.307, 3.309, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1986 to April 1994. The Veteran died in March 2013, and the appellant has filed this claim as the surviving spouse. This claim is on appeal from a May 2018 rating decision. In September 2019, the Board of Veterans' Appeals (Board) remanded the claim to obtain an expert opinion regarding the cause of the Veteran's death. In March 2020, the Board denied the claim and the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Joint Motion for Remand (JMR), the parties agreed that the March 2020 decision be vacated because the Board erred in relying on an inadequate medical opinion. Specifically, the parties found the opinion the Board relied on was inadequate because the examiner who provided it was under the misimpression that the Veteran did not have any respiratory condition despite the fact that the autopsy report clearly denotes emphysema. In July 2021, the Board remanded the claim consistent with the terms of the JMR. A new medical opinion was obtained in October 2021. Accordingly, the Board finds there has been substantial compliance with its prior remand directives and the Court's Order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to 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). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), service connection may be established when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as cardiovascular disease including hypertension and endocarditis (which covers all forms of valvular heart disease), service connection may be granted if the disease becomes manifest to a compensable degree within a year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For chronic diseases specified in 38 C.F.R. § 3.309(a), service connection may be established based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). [Pulmonary emphysema, chronic obstructive pulmonary disease, and interstitial lung disease such as asbestosis are not enumerated chronic disease subject to the presumptions.] For a Persian Gulf Veteran, presumptive service connection may be established for a qualifying chronic disability, which specifically includes a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome and fibromyalgia. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e). In this case, the Veteran served in Kuwait and thus qualifies as a Persian Gulf Veteran. The appellant contends that service connection for the cause of the Veteran's death is warranted because his fatal conditions resulted from lung issues he had from his exposure to asbestos during his ship duties and exposure to burning oil well fire smoke when he was stationed in Kuwait. See January 2018, May 2019, July 2019, and April 2021 Statements. At the time of the Veteran's death in March 2013, service connection was in effect for residuals of a left ear perforated tympanic membrane and residuals of a right inguinal hernia. His death certificate lists the immediate cause of death as cardiac tamponade, due to or as a consequence of hemopericardium, due to or as a consequence of an ascending aortic aneurysm. No other significant contributing factors were noted. The death certificate reflects exactly the findings of a report of an autopsy, performed by the coroner's physician. The report notes that there was no known chronic medical history and no known medical care within the previous 13 years for the Veteran. Further, anatomic diagnoses in relation to the heart were atheromatous narrowing with mild calcification of various coronary arteries, cardiomegaly, left ventricular hypertrophy, an ascending aorta that had been dissected and ruptured, and a descending aorta that had mild atherosclerosis and mild to moderate calcification and no aneurysmal changes. Anatomic diagnoses in relation to the lungs were moderate to severe acute pulmonary congestion and edema, centrilobular emphysema, and obstruction of the airways by bloody edema fluid and mucoid exudates (partial for the upper airway and trachea and total for bronchi and terminal airways). After consideration of the evidence and the applicable law, the Board finds that the evidence is not in approximate balance, but persuasively against a finding that service connection is warranted for the cause of the Veteran's death. 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. Service treatment records (STRs) do not reflect any complaints, findings, or diagnosis of a heart-related condition. Thus, based on STRs alone, the conditions listed on the death certificate are not shown to have been manifested during service. The evidence is also against a finding of service connection for the disabilities noted on the death certificate and autopsy report based on continuity of symptoms, under 38 C.F.R. § 3.303(b). The clinical records do not document the presence, or symptoms, of a cardiovascular disease or endocarditis. The official cause of death, as determined through an autopsy, was an ascending aortic aneurysm, which resulted in hemopericardium and cardiac tamponage; there is no evidence that the aneurysm was caused by cardiovascular disease or endocarditis, or more importantly that the Veteran even had a diagnosis of cardiovascular disease or endocarditis in the first instance. Neither the Veteran (while living) nor the appellant has claimed that symptoms of a heart-related ailment or disability were manifest in service or continuously ever since then. Moreover, there are no VA or private medical records from the time of service discharge to the Veteran's death to show any heart-related condition (the autopsy report notes that the Veteran had no known chronic medical history or medical care for 13 years before his death). As the initial manifestation or development of a heart-related disease is not shown within the one-year presumptive period, service connection for cardiovascular disease or endocarditis (if such is presumed related to the fatal aneurysm) on a chronic disease presumptive basis under 38 C.F.R. §§ 3.307(a) and 3.309(a) is not warranted. The appellant's primary theory of entitlement is that service connection for the Veteran's fatal ascending aortic aneurysm is warranted on the basis that it is due to a lung condition from exposure to asbestos and/or smoke from oil well fires in the Persian Gulf. Given the circumstances of the Veteran's active service (an electrician's mate on an older destroyer, USS Lawrence, DDG-4, which was soon decommissioned as well as his active service in Kuwait), the prior Board decisions have conceded the Veteran was exposed to asbestos and oil well fires during service. The July 2021 Board decision remanded this matter following a February 2021 Court grant of a JMR in which the parties agreed that the March 2020 Board decision relied on an inadequate VA opinion. Specifically, the December 2019 VA medical opinion, in part, erroneously assumed that the Veteran did not have a respiratory condition despite the fact the autopsy report clearly denotes emphysema. The parties found this error was prejudicial because the examiner remarked that pulmonary disease may have had an indirect impact on death, an inquiry relevant under 38C.F.R. § 3.312(c)(3)-(4), but the examiner then concluded that respiratory impairment was not the cause of the death and that there are no records to indicate whether pulmonary/respiratory was a direct or indirect cause of the death. Pursuant to the Board's most recent remand, a medical opinion was obtained in October 2021. First, the examiner opined that the evidence was not in approximate balance, but persuasively against a finding that the Veteran's documented incidence of loss of consciousness and/or syncope in service were related to a heart disability that remained undiagnosed or misdiagnosed in service. She noted the Veteran's autopsy report identified findings of a ruptured ascending (i.e., thoracic) aortic aneurysm, mild atherosclerotic disease of the coronary arteries, and an enlarged heart with a dilated and hypertrophied left ventricle. She then explained that the STRs are absent for symptoms and findings of a heart disability, to include acute and chronic coronary syndrome, heart failure, cardiomyopathy, hypertension, hypotension, tachycardia, abnormal heart sounds, electrocardiogram abnormality, arrhythmia, severe ches, abdominal, or back pain characteristic of symptomatic thoracic aortic aneurysm. The examiner also noted that the Veteran's blood pressure and pulse rate were normal at 100/60 and 70 respectively, and heart and lung examinations were normal when he presented for medical treatment in May 1987 because he "felt dizzy, doesn't know if he passed out." His blood pressure was 140/70 and pulse rate was 68 with ECG finding of normal sinus rhythm in January 1993, when he was brought to the emergency department by ambulance after loss of consciousness. Chest pain, abdominal pain, and dyspnea were denied, lab studies including cardiac enzymes were ordered, and clinical impression at discharge was vasovagal syncope. Instead, the examiner opined that the evidence supports vasovagal syncope, a neural-mediated condition, as a more likely cause of the Veteran's in-service syncope than a cardiac disability. The examiner explained that the Veteran's syncopal episode in May 1987 occurred in the typical vasovagal context ("heat exhaustion due to high heat and no food"), included prodromal symptoms and signs consistent with increased vagal tone, and was short in duration (minutes). Additionally, the Veteran was diagnosed with vasovagal syncope in January 1993. Syncope associated with arrhythmia is typically of abrupt onset and of short duration, but without autonomic-mediated prodrome or post-episode fatigue. The examiner concluded that despite the clinical examinations, ECG, and laboratory testing conducted after Veteran's in-service syncope/presyncope, STRs are absent for findings of a heart disability known to be associated with syncope. The examiner also opined that the evidence was not in approximate balance but persuasively against a finding that the Veteran's diagnosis of emphysema was incurred in or caused by active service, to include exposure to asbestos and/or oil fires. She explained that the STRs are absent for symptoms and findings of chronic respiratory disease. She noted that the April 1986 Report of Medical examination listed a normal chest x-ray. A March 1994 Report of Medical History notes the Veteran's denial of current and prior respiratory symptoms and the accompanying Report of Medical examination noted normal clinical evaluation of the lungs. The examiner concluded that there is insufficient evidence to support asbestos and/or oil fires as the cause of the Veteran's emphysema. She supported her conclusion by citing to an article from the American Journal of Epidemiology that found an increased but not statistically significant risk for emphysema in military personnel deployed during the time of the Kuwait oil fires. An article from the Journal of Clinical Medicine found that the relationships between emphysema and asbestos exposure remain unclear and the causative role of asbestos on emphysema remains to be determined. Additionally, the examiner cited various medical articles as evidence of factors other than asbestos and oil fire exposure that cause emphysema, to include genetics, surfactant instability, malnutrition, and alveolar cell apoptosis. She also cited to an article that indicated findings of emphysema in non-smokers with chronic asthma. Lastly, the examiner opined that the Veteran's cause of death was not related to active service, to include his exposure to asbestos or smoke from oil fires in the Persian Gulf. She noted that there is no evidence supporting active service to include exposure to asbestos or smoke from oil fires as a cause for thoracic aortic aneurysm and rupture. Additionally, a review of medical literature is absent for evidence supporting exposure to asbestos or smoke from oil fires in the Persian Gulf as a cause for thoracic aortic aneurysm, rupture, or cardiac tamponade. The examiner cited medical literature that indicated that the majority of thoracic aortic aneurysms are degenerative and occur in association with risk factors for atherosclerosis. Hypertension is an important risk factor for atherosclerosis and is present in over 60 percent of patients with thoracic aortic aneurysms. The examiner found that the evidence implicates that the Veteran's atherosclerosis and his atherosclerosis risk factors are unrelated to active service to include exposure to asbestos or smoke from oil fires in the Persian Gulf in causation of his thoracic aortic aneurysm and rupture. Medical literature notes that established risk factors for atherosclerotic cardiovascular disease include, but are not limited to, advancing age, male sex, obesity, overweight, weight gain. Accordingly, the Veteran's autopsy report identified atherosclerosis risk factors unrelated to active service, including his age (46) and BMI (25.1) overweight status. After a thorough review of the evidence, the Board finds that the evidence is not in approximate balance, but weighs against a finding that the Veteran's heart condition and emphysema are related to active service, to include exposure to asbestos and smoke from oil well fires. The Board affords the October 2021 VA medical opinion significant probative weight because the examiner's rationale for the negative nexus opinions was based upon review of the medical records, consideration of the Veteran's reported history, and numerous medical articles. The Board acknowledge the appellant's statements indicating that the Veteran's cause of death is attributable to a lung disability caused by his in-service exposures to asbestos and smoke from oil well fires or by an undiagnosed heart condition that should have been detected during service. However, the Board finds the appellant is not competent to furnish a diagnostic impression regarding the Veteran's symptoms including whether they are manifestations of lung damage from exposure to asbestos/smoke from oil well fires in service or of an undetected heart condition that began in service. It is neither argued nor shown that the appellant is qualified through specialized education, training, or experience to offer an opinion on the question of service connection for the cause of the Veteran's death, including whether the Veteran's fatal conditions may be attributed to service. Laypersons are competent to provide opinions on some medical issues, but the etiology of the ascending aortic aneurysm falls outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Lay assertions that the Veteran's death may be related to his military service have no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant has not presented any competent (medical opinion or treatise) evidence supporting her asserted theory of entitlement. Given the above, the Board finds that a heart condition and emphysema were 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 a heart condition or emphysema 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 cause of the Veteran's death is not warranted. J. O'Connell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.