Citation Nr: 22018108 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-63 440 DATE: March 28, 2022 ORDER Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The death certificate shows that the Veteran died in January 2016, and the immediate cause of death was cardio pulmonary failure, cerebral vascular disease, bilateral carotid artery, and (unintelligible). The contributory causes were myeloproliferative neoplasm and myelo leukemia. 2. Service connection was not in effect for any disability at the time of the Veteran's death. 3. The evidence of record persuasively weighs against finding that the Veteran's death was caused by a disability incurred in or aggravated by service or is etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. §§ 1110, 1131, 1310, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to May 1968. He died in January 2016. The appellant is his surviving spouse. In January 2020, the appellant testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In September 2020 and September 2021, the Board remanded the claim for further development. Regarding the Veteran's diagnosed myeloproliferative neoplasm and acute promyelocytic leukemia (cancer diagnoses), in the September 2020 Board decision, the Board found that the Veteran did not have a disease which warranted a presumption of service connection due to herbicide exposure, and the evidence weighed against finding that the disabilities began during active service, or were otherwise related to an in-service injury or disease. Entitlement to service connection for the Veteran's cause of death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Establishing service connection for cause of death requires (1) evidence of death, (2) evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected 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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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. 38 C.F.R. § 3.312(c). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran's death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). Applicable regulations provide that if a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain disease will be service-connected even if there is no in-service record of the disease in service. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Effective August 31, 2010, VA amended the applicable herbicide regulation, 38 C.F.R. § 3.309(e), to add ischemic heart disease (IHD) to the list of diseases associated with exposure to herbicide. Ischemic heart disease includes, but is not limited to: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (CAD) (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). See 38 C.F.R. § 3.309(e) (codified at 38 C.F.R. pt. 4); 75 Fed. Reg. 53,202- 53,205 (August 31, 2010). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The appellant contends that the Veteran's death is related to his military service. Specifically, she contends that the Veteran died of a heart condition that was due to his in-service herbicide exposure. Regarding the first element, the death certificate shows that the Veteran died in January 2016. His immediate cause of death was cardiopulmonary failure, cerebral vascular disease, bilateral carotid artery, and (unintelligible). The contributory causes were myeloproliferative neoplasm and myelo leukemia. Regarding the second element, at the time of his death, the Veteran was not service connected for cardiopulmonary failure, cerebral vascular disease, bilateral carotid artery, or for any other disabilities. In February 2013, the Veteran was referred to oncology. The Veteran complained of, among other things, shortness of breath on exertion. The examiner stated that the Veteran had been diagnosed with leukocytosis in 2012. On December 15, 2015, the Veteran was seen at a private hospital complaining of weakness. The Veteran's echocardiogram (ECG) was abnormal. On December 17, 2015, the Veteran was discharged with a diagnosis of chronic diastolic congestive heart failure and bilateral carotid artery stenosis. On December 18, 2015, the Veteran was diagnosed with cerebral infraction. On December 19, 2015, an examiner noted that the Veteran had mild aortic valve stenosis, mild mitral regurgitation, and mild tricuspid regurgitation. In a May 2016 rating decision, VA conceded the Veteran's herbicide exposure. During her January 2020 Board hearing, the appellant stated that the Veteran began stumbling, and a doctor revealed that the Veteran's carotid artery was blocked. The Veteran was scheduled for an operation; however, he died three days before the operation. She contends that VA did not diagnose the Veteran's initial problem. In April 2020, the appellant, through her representative, submitted a Statement in Support of Claim. The appellant submitted medical records which documented the Veteran's medical conditions prior to his death. The appellant noted that the Veteran died of stenosis of the right carotid artery, possible left atrial enlargement, mild mitral regurgitation, and left ventricle diastolic function mildly abnormal. In September 2020, the Board acknowledged the appellant's assertion that the Veteran had undiagnosed IHD which caused his death. The Board noted that the Veteran's death certificate indicated cardiopulmonary failure as an immediate cause of death. During her January 2020 hearing, the appellant testified that, prior to his death, the Veteran was awaiting surgery to correct a severe blockage to his carotid artery. Based on this information, along with the Veteran's conceded herbicide exposure, the Board remanded the claim for a VA opinion to determine whether the Veteran had IHD and its causal relation to his death. In January 2021, the AOJ obtained an opinion to determine the Veteran's cause of death. The examiner opined that it is less likely as not that IHD was an immediate or underlying cause of death (cardiac recovery failure is listed as a cause of death on the death certificate, but this is not necessarily the same thing as IHD). The examiner noted that the Veteran's primary cause of death included cardiac recovery failure, cerebral vascular disease, and bilateral carotid artery, and the contributory causes of death included myeloproliferative neoplasm and myelo leukemia. The examiner stated that review of the medical records indicated congestive heart failure, diastolic dysfunction, and valvular heart disease in 2015. However, prior to his death, there were no notes showing a diagnosis of IHD. Therefore, it is less likely as not that IHD was an immediate or underlying cause of death. In September 2021, the Board found the January 2020 examiner's rationale inadequate as it was unclear why the mere fact that there were no notes on IHD prior to death established that the disease was unlikely to be an immediate or underlying cause of death. The Board remanded the claim for a new opinion. In November 2021, the AOJ obtained an addendum opinion. The examiner reviewed the medical records. The examiner stated that there is no evidence that the Veteran was ever diagnosed or treated for IHD. The Board finds the VA examination to be competent and credible and consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, it is afforded probative weight. As noted above, service connection may be granted on a presumptive basis for certain diseases, such as CAD or IHD, associated with exposure to herbicide agents during the Vietnam era if such diseases are shown to be manifest to a degree of 10 percent within the period prescribed in 38 C.F.R. § 3.307(a)(6)(ii). See 38 C.F.R. §§ 3.307(a), 3.309(e). In this case, VA has conceded herbicide exposure. Therefore, the Board has to determine whether the Veteran's heart disease constitutes IHD. Although the appellant has asserted that the Veteran died of IHD, the medical evidence of record does not support a finding that the Veteran was ever diagnosed with IHD or CAD prior to his death. In this case, the Veteran was diagnosed with cardiopulmonary failure and bilateral carotid artery. The VA examiner stated that, after reviewing the medical records, there is no evidence that the Veteran was ever diagnosed or treated for IHD. The Board also notes that the Veteran's cardiopulmonary failure and bilateral carotid artery are not listed as diseases for which presumptive service connection is possible. Regarding the Veteran's cerebral vascular disease/brain condition, his diagnosed brain condition is also not a disease subject to presumptive service connection based on exposure to herbicide agents. Accordingly, service connection is not warranted on a presumptive basis for either a heart or brain disability. As no other presumptive provisions appear to be applicable to the appellant's claim, the Veteran's cause of death must be established on a direct basis, i.e., the Board will consider whether there is any other evidence of a link between the Veteran's disabilities and an incident of active duty service. The Veteran's service treatment records (STRs) do not document complaints, treatments, or diagnosis for a heart or brain condition. During his June 1966 Report of Medical History: Enlistment examination, the Veteran's heart and head were clinically normal. Neurologically, he was intellectually deficient (unintelligible). During his May 1968 Separation examination, the Veteran's heart and other systems were clinically normal. The Veteran reported being in good condition. During both his enlistment and separation examinations, he stated that he did not have frequent or severe headaches, dizziness or fainting spells, shortness of breath, pain or pressure in his chest, or palpitation or pounding heart. Regarding the heart conditions, the Board notes that the Veteran had an abnormal electrocardiogram (ECG) result in 2015, and he was diagnosed with chronic diastolic congestive heart failure and bilateral carotid artery stenosis. He was also diagnosed with cerebral vascular disease in 2015. Both disabilities were diagnosed over 47 years after separation from service. Therefore, the overall evidence of record weighs against finding that the Veteran's heart and brain conditions are associated with his active duty. The Board has considered the appellant and her representative's statements regarding the Veteran's cause of death. As lay persons, they are competent to report symptoms they can personally observe. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). They are also competent to diagnose a simple medical condition capable of lay observation. However, the record does not reflect that the appellant and her representative have the necessary level of medical expertise to competently diagnose a heart and/or brain condition and relate the disability to service. Rather, this is a complex medical matter which involves clinical tests to adequately diagnose the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges that opinions were not obtained regarding whether service connection is warranted on a direct basis. However, the Board finds that an opinion is not warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran's current disabilities and his active service. The first medical evidence of the Veteran's disabilities was 47 years after active service. The only evidence of a possible connection between the Veteran's disabilities and his service are the appellant and the representative's own broad and conclusory statements that the disabilities are related to service, and such statements are not sufficient to trigger VA's obligation to obtain an opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). As the evidence fails to establish that the Veteran had a service-connected disability that was either the principal or a contributory cause of death, the appellant's claim is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, T. 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.