Citation Nr: 22017671 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 13-27 664 DATE: March 25, 2022 ORDER Entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Certificate of Death indicated the Veteran died in February 2011 and that his cause of death was due to cardiopulmonary arrest, with Alzheimer's dementia being a contributing condition. 2. The evidence of record persuasively weighs against a finding that the Veteran's Alzheimer's dementia or any heart disorder began during active service, or was otherwise related to an in-service injury or disease, including due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for cause of death have not been met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1951 to June 1971. The Veteran passed away in January 2011. In February 2011, the Veteran's surviving spouse submitted a claim for Dependents and Indemnity Compensation, specifically requesting service connection for the cause of the Veteran's death. The Veteran's spouse passed away in December 2015. In November 2018, the Veteran's daughter (hereinafter the Appellant) was determined to be a valid substitute on the claim of entitlement to service connection for the cause of the Veteran's death. 38 C.F.R. §§ 3.1000(a)(5), 3.1010(a). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The Veteran's surviving spouse submitted an informal notice of disagreement (NOD) to the August 2011 rating decision in November 2011. VBA issued a statement of the case (SOC) continuing its decision in July 2013. The Veteran's surviving spouse submitted a September 2013 VA Form 9, seeking to appeal the decision to the Board. In September 2014 correspondence, the Veteran's surviving spouse requested a Board hearing. In a June 2015 Board decision, the Board remanded the matter as a hearing had not been afforded. In December 2015, the Veteran's surviving spouse withdrew her request for a hearing. The Board was alerted later that month that the Veteran's spouse had passed and issued a January 2016 decision dismissing the claim for service connection for cause of death. In January 2016, the current Appellant, the Veteran's daughter, filed a request to substitute as Appellant in the surviving spouse's claim for service connection for cause of death, which was granted in November 2018. The previously dismissed appeal was re-activated, and the Appellant and her representative were notified that the appeal had been place on the Board's docket in October 2019. In November 2019 and June 2021, the Board remanded the claim in pursuit of additional development. The matter has returned to the Board for appellate consideration. In June 2015, November 2019, and June 2021, the present claim was remanded for further evidentiary development and readjudication. The Appellant is entitled to substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). The Board finds that the VBA has substantially complied with the prior remand directives. Neither the Appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for cause of death The Appellant contends that the cause of the Veteran's death was related to his military service. Specifically, the Appellant contends that the Veteran had a heart disability, which was causally related to his in-service herbicide exposure, and which in turn caused or materially contributed to his cardiopulmonary arrest, which was listed as the immediate cause of death on the death certificate. She alternatively contends that the Veteran's Alzheimer's dementia, listed on the death certificate as a significant condition contributing to death, is directly related to the Veteran's in-service herbicide agent exposure. The death of a Veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when the 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 contributory cause of death is inherently one that is not related to the principal cause. To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or aided the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. At the time of his death, the Veteran was not service-connected for a disability. As such, the Board will address the laws that otherwise govern service connection for a disability. Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to the Veteran's heart condition, the Board finds the first two element of Shedden to be met. The evidence contains October 2020 and November 2021 VA examinations where the Veteran was diagnosed with non-ischemic cardiomyopathy (NICM). The Veteran was considered presumptively exposed to herbicide agents due to his military service in the Republic of Vietnam. As such, the remaining question before the Board is to the nexus between the disability and the in-service incurrence. Evidence regarding a nexus includes a November 2011 letter by a Dr. C.L.C. The clinician noted the Veteran's treatment from August 2003 to September 2009. The clinician opined that it was at least as likely as not that a relationship existed between herbicide exposure and the Veteran's subsequent health problems. No explanation or rationale was provided for this opinion. In October 2020, the Veteran's file was reviewed for an opinion regarding service-connection of any heart disability. The examiner opined it was less likely than not the Veteran's NICM was related to active service, including possible herbicide exposure. The examiner cited a lack of chronic cardiac conditions of any kind shown in service treatment records, the onset of NICM decades after leaving service, and a medical treatise that supported the contention that herbicide exposure was not a known cause of NICM. Additional nexus opinions regarding the Veteran's heart disability in November and December 2021 found it to be less likely than not due to the Veteran's exposure to herbicide. The examiner explained that the Veteran's congestive heart failure was most commonly due to ischemic heart disease or long-term hypertension. He highlighted the Veteran never had ischemic heart disease and that herbicide exposure was only shown to cause ischemic heart disease. As such, he concluded the Veteran's heart disability was not due to active duty, to include herbicide exposure. While the Board finds the November 2011, October 2020, November 2021, and December 2021 nexus opinions competent and credible, the Board gives less weight to the November 2011 opinion. The November 2011 opinion is without any discussion or rationale in support of its findings. In contrast, the other opinions show full record reviews and provide explanations for their findings. As such, the Board finds the third and final element of Shedden is not met. By failing to meet this element, the Veteran's heart disability is not service-connected and thus cannot be a service-connected disability that was either the principal or contributory cause of death. As to the Veteran's Alzheimer's dementia, the Board finds the first two elements of Shedden are met. The Veteran's death certificate indicated Alzheimer's dementia was a significant condition contributing to death, establishing it as a current diagnosis of the Veteran. The Veteran is presumptively exposed to herbicide agents due to his military service in the Republic of Vietnam. As such, the remaining question before the Board is to the nexus between the disability and the in-service incurrence. Nexus evidence in the record includes the November 2011 letter by Dr. C.L.C. finding it was at least as likely as not that a relationship existed between the Veteran's herbicide exposure and his subsequent health problems. An October 2020 VA opinion found it less likely than not the Veteran's Alzheimer's dementia was related to his military service. The examiner pointed to the lack of cognitive dysfunction during service and established medical principles, stating that herbicide exposure does not cause Alzheimer's dementia. In November 2021, a VA examiner opined it was less likely than not the Veteran's Alzheimer's dementia was due to his active service, because there was no research to support such a connection. An addendum opinion was provided in December 2021 in which the clinician opined that the Veteran's Alzheimer's dementia was less likely than not due to the Veteran's presumptive herbicide exposure, explaining that the greatest risk factors for Alzheimer's involves age, family history, and genetic factors, all of which were unrelated to herbicide exposure. While the Board finds the November 2011, October 2020, November 2021, and December 2021 nexus opinions competent and credible, the Board gives less weight to the November 2011 opinion. The November 2011 opinion is without any discussion or rationale for its opinion. In contrast, the other opinions show full record reviews and provide explanations for their findings. As such, the Board finds the third and final element of Shedden is unmet. By failing to meet this element, the Veteran's Alzheimer's dementia disability is not service-connected and thus cannot be a service-connected disability that was either the principal or contributory cause of death. In summary, the Board finds entitlement to service connection for cause of death is not warranted. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.