Citation Nr: 22016242 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-24 522 DATE: March 21, 2022 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDING OF FACT The evidence is persuasively against a finding that a service-connected disability was either a principal or a contributory cause of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to November 1975. He died in October 2015. The Appellant is his surviving spouse. She seeks entitlement to service connection for the Veteran's cause of death. The Appellant appeared at a hearing before the undersigned in April 2021. A transcript of the hearing is of record. In December 2021, the Board remanded the Appellant's claim for a new opinion because a March 2017 VA examiner, while adequately addressing whether the Veteran had ischemic heart disease prior to his death, failed to address whether the cause of death listed of the Veteran's death certificate, "severe aortic stenosis", was the result of an in-service disease or injury, to include, but not limited to his presumed exposure to herbicide agents; or proximately due to, or aggravated by, a service-connected disability or disabilities. The Agency of Original Jurisdiction (AOJ) subsequently obtained a new opinion that complies with the December 2021 remand directives and has now returned this matter to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis To warrant service connection for the Veteran's cause of death, the evidence must show that a service-connected disability was either a principal or a contributory cause of death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. A disability will be considered the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A disability will be considered a contributory cause of death when it contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). Service connection for the cause of death is determined in accordance with the statutes referable to establishing service connection for compensation purposes under Chapter 11 of 38 U.S.C. (§ 1101 et. seq.). 38 U.S.C. § 1310(a). Under these provisions, service connection is granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a result, establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Finally, service connection may be established on a presumptive basis for diseases enumerated in 38 C.F.R. § 3.309(e) for veterans who were exposed to certain herbicide agents during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6). The term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a). The Appellant's primary theory of entitlement to service connection for the Veteran's cause of death has been that he had ischemic heart disease, which eventually caused his death, that should be presumed to have resulted from active service due to his conceded exposure to herbicide agents in the Republic of Vietnam. The Appellant has also asserted that chest pains noted at the Veteran's separation from active service could have been a preliminary sign of the condition that caused his death. The Board notes the Veteran was entitled to service connection for post-traumatic stress disorder (PSTD), cervical spine degenerative joint disease, and tinnitus prior to his death, raising the possibility that one of these conditions was either a principal or contributory cause of death; or caused, or aggravated, the condition that was either a principal or contributory cause of death. Initially, the Board finds the evidence is persuasively against a finding that the Veteran had ischemic heart disease. Both VA examiners who provided opinions regarding the Veteran's claim noted ischemic heart disease was conclusively ruled out in the Veteran's case based on the results of a September 28, 2015, echocardiogram, the definitive test of ischemic heart disease, which revealed a normal ejection fraction and therefore failed to show myocardial damage that would suggest the presence of ischemic heart disease. In this regard, the Board acknowledges a July 2016 opinion, authored by B.A., M.D., that the Appellant submitted to support her claim that indicates the Veteran had multiple diagnoses during the hospital stay at the time of his death, including acute infectious endocarditis of the aortic valve, but this opinion does not state the Veteran had ischemic heart disease prior to his death, consistent with the treatment records from the Veteran's hospital stay, which also do not include an ischemic heart disease diagnosis. It only states aortic stenosis could potentially aggravate ischemic heart disease if present. As a result, the Board finds the presumptive provisions related to herbicide agents outlined in 38 C.F.R. § 3.307(a)(6) are not for application in this case as the Veteran did not have ischemic heart disease. See 38 C.F.R. § 3.309(e). This finding does not foreclose the possibility of service connection for the Veteran's cause of death based on an alternate theory. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Board finds the evidence is also persuasively against a finding that a service-connected disability was either a principal or a contributory cause of the Veteran's death. The record establishes the Veteran had acute infectious endocarditis of the aortic valve caused by strep viridans prior to his death. This fact is well documented in the record and has been referenced by all experts who have provided an opinion regarding this matter. The Veteran's death certificate lists his immediate cause of death as "severe aortic stenosis" with no other significant conditions or contributing causes being listed. As previously noted, the Board remanded this matter in December 2021 because the March 2017 VA examiner who initially provided an opinion regarding the Veteran's claim failed to adequately discuss the etiology of the "severe aortic stenosis" noted on the Veteran's death certificate, rather explaining bacterial endocarditis led to heart failure that eventually led to sepsis and then septic shock, as commonly occurs with bacterial endocarditis. In December 2021, a second VA examiner provided a far more detailed opinion indicating it was his professional opinion that "severe aortic stenosis" was erroneously listed as the Veteran's cause of death with "severe aortic insufficiency and heart failure" being a more correct characterization. The December 2021 VA examiner explained aortic stenosis was ruled out by the September 28, 2015, echocardiogram and does not result from bacterial endocarditis, noting aortic stenosis is a narrowing of the aortic valve that is due to a congenitally abnormal aortic valve with associated calcification or a damaged valve from having rheumatic fever in the past of which there was no evidence of in the Veteran's case. The December 2021 VA examiner further explained aortic stenosis produces an outflow restriction and does not produce insufficiency or regurgitation as noted in the Veteran's case. The December 2021 VA examiner further explained bacterial endocarditis leads to malfunctioning of the affected valve, causing it to leak, referred to as insufficiency or regurgitation, leading to acute heart failure, as was noted by the previous March 2017 VA examiner. The December 2021 VA examiner ultimately concluded that it is less likely than not that the Veteran's severe aortic insufficiency, or severe aortic stenosis if accepted as correct, was the result of an in-service disease or injury, to include, but not limited to his presumed exposure to herbicide agents; or proximately due to, or aggravated by, a service-connected disability or disabilities. The December 2021 VA examiner initially noted medical research has not shown herbicide agent exposure to be a risk factor for valvular heart disease, to include aortic insufficiency or aortic stenosis. The December 2021 VA examiner then discussed the Veteran's in-service medical history and explained there is no evidence the Veteran incurred a disease or injury in service that would lead to an aortic valve condition, to include, but not limited to, aortic insufficiency or aortic stenosis. The December 2021 VA examiner then noted there is no evidence that any of the Veteran's service-connected disabilities caused or aggravated an aortic valve condition, which was an unfortunate, yet expected, result from the bacterial endocarditis incurred shortly before his death, consistent with the report of the previous March 2017 VA examiner, who noted neither the disease process or treatment for the Veteran's service-connected PTSD, cervical spine degenerative joint disease, or tinnitus, has any relationship to the his cause of death or produces any debilitating effects and general impairment of health that would have rendered him less capable of resisting the effects of the bacterial endocarditis and the resulting aortic valve condition. The Board finds the December 2021 opinion, and its corroboration of the March 2017 opinion, to be the most persuasive evidence in this case. The Board has no doubt the Appellant sincerely believes the Veteran's service may have played a role in the development of the condition that eventually caused and/or contributed to his death, but she does not have the requisite skill or training to address complex medical questions such as the etiology or expected course of a valvular heart condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The competent evidence in this case leads only to the conclusion that the Veteran incurred bacterial endocarditis approximately forty years after his separation from service, which led to the development of a valvular heart condition that eventually caused his death. There is no evidence that links this condition to an in-service disease or injury, to include, but not limited to, his conceded exposure to herbicide agents in the Republic of Vietnam. There is also no competent evidence that indicates the Veteran's service-connected disabilities caused or aggravated his bacterial endocarditis, or the resulting valvular heart condition, or that a service-connected disability contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death, as the two experts who have provided opinions regarding the Appellant's claim have both opined neither the disease process nor treatment for the Veteran's service-connected PTSD, cervical spine degenerative joint disease, or tinnitus has any relationship to his cause of death. As the most persuasive evidence weighs heavily against the Appellant's claim, the benefit-of-the-doubt doctrine does not apply; therefore, service connection for the Veteran's cause of death must be denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED