Citation Nr: 22018992 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-44 757 DATE: March 31, 2022 ORDER Service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in October 2012; service connection was in effect for cold weather injuries of the left lower, right lower, left upper and right upper extremities. 2. The death certificate listed respiratory failure as the immediate cause of death in Part I of the certificate, with Part 2 reflecting end stage COPD listed as a significant condition contributing to death but not resulting in the underlying cause given in Part I. 3. The evidence does not demonstrate that respiratory failure or COPD were incurred in service or are otherwise related to service or to service-connected cold weather injury residuals; the disorders that caused or contributed to the Veteran's death began many years after service and were not caused by any incident of service. 4. The Veteran's death was not caused by, or substantially or materially contributed to, by an event, injury, or disease incurred in active military service. CONCLUSION OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C. §§ 1110, 1310, 5107; 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1948 to October 1952, to include in support of the Battle of Chosin Reservoir in Korea during the Korean Conflict. The Veteran died in October 2012 and the Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a June 2018 rating action of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant and her daughter presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2022. In January 2022, the Board issued a decision reopening claims of entitlement to service connection for the cause of the Veteran's death and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 and remanding the matters to the RO on the merits. In a February 2022 rating decision, the RO granted entitlement to DIC under 38 U.S.C. § 1318, among other benefits, but denied service connection for cause of the Veteran's death. That matter has been returned to the Board. Cause of Death To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. 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 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). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (c) (1). To establish service connection for a disability, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection for the cause of the Veteran's death is denied. The Veteran died in October 2012. The death certificate lists the immediate cause of death as respiratory failure which had been present for about one week, with end stage COPD (chronic obstructive pulmonary disease) as a significant condition contributing to death. Non-VA treatment records in 2011 and 2012 prior to his death reflect he suffered from multiple conditions to include: severe obstructive airway disease, sleep apnea, memory problems, atrial fibrillation, cor pulmonale, hypoxemia respiratory failure and systemic hypertension. At the time of the Veteran's death, service connection was established for cold weather injuries of the left lower, right lower, left upper and right upper extremities. The disability rating for each extremity was 30 percent, with a combined rating of 80 percent from December 27, 2002, the date VA had recognized as the date his claim for residuals of his in-service cold injuries was received. A total disability rating due to individual unemployability due to service-connected disabilities (TDIU) was also effective from that date. In the February 2022 rating decision in which the RO granted DIC under 38 U.S.C. § 1318, an earlier effective date to September 4, 2022, was granted for service connection for the cold weather injury residuals and for TDIU. The Appellant testified that there was asbestos onboard the Veteran's ship and his death could have been caused by this. She pointed out that there are respiratory disabilities due to asbestos. She noted that he did not like to talk about his service in the Korean War, but she knew that asbestos flakes fell on him, which may have caused his COPD. She noted that he also had congestive heart failure at the time of his death. She has also theorized that his exposure to the extreme conditions onboard ship in Korea which led to his cold weather injuries also led to his respiratory and heart issues that caused his death. Also noted are two buddy statements from 2004 that vividly describe harsh conditions onboard ship, to include dealing with prolonged outdoor work on the flight deck with frozen sea water and temperatures of 50 below zero. His statement submitted with the original claim in 2002 indicates he endured brutal cold exposure onboard ship while performing close air support during the Battle of Chosin Reservoir. Service treatment and examination records reveal no findings or histories of COPD or respiratory failure. Post-service treatment records reflect that COPD was not manifest for many years following service. A February 2002 non-VA examination reflects a review of systems with a finding of no positive chest findings and no relevant past medical history. In July 2003 he underwent an unrelated medical procedure, and the record reflects severe COPD. A consult at the time reflects he had a 40-pack year history of tobacco use but denied any history of COPD. In view of the above, the Board remanded this matter in January 2022 for a medical opinion as to the cause of death. A VA medical opinion was rendered in February 2022 by a VA physician who reviewed the record. The examiner found that the Veteran's death was less likely than not (less than 50 percent probability) related to service. The following detailed rationale was provided. The claimed cause of the veteran's death COPD condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The remand letter and testimony were reviewed to include the testimony of cold weather and asbestos exposure. The primary cause of COPD is exposure to tobacco smoke. Overall, tobacco smoking accounts for as much as 90% of COPD risk. Cigarette smoking induces macrophages to release neutrophil chemotactic factors and elastases, which lead to tissue destruction. Secondhand smoke, or environmental tobacco smoke, increases the risk of respiratory infections, augments asthma symptoms, and causes a measurable reduction in pulmonary function. COPD does occur in individuals who have never smoked. Although the role of air pollution in the etiology of COPD is unclear, the effect is small when compared with that of cigarette smoking. In developing countries, the use of biomass fuels with indoor cooking and heating is likely to be a major contributor to the worldwide prevalence of COPD. Long-term exposure to traffic-related air pollution may be a factor in COPD in patients with asthma. Alpha1-antitrypsin deficiency is the only known genetic risk factor for developing COPD and accounts for less than 1% of all cases in the United States. Severe AAT deficiency leads to premature emphysema at an average age of 53 years for nonsmokers and 40 years for smokers. Emphysema occurs in approximately 2% of persons who use intravenous (IV) drugs. This is attributed to pulmonary vascular damage that results from the insoluble filler (e.g., cornstarch, cotton fibers, cellulose, talc) contained in methadone or methylphenidate. Human immunodeficiency virus (HIV) infection has been found to be an independent risk factor for COPD, even after controlling for confounding variables such as smoking, IV drug use, race, and age. Hypocomplementemic vasculitis urticaria syndrome (HVUS) may be associated with obstructive lung disease. Other manifestations include angioedema, nondeforming arthritis, sinusitis, conjunctivitis, and pericarditis. Cutis laxa is a disorder of elastin that is characterized most prominently by the appearance of premature aging. The disease usually is congenital, with various forms of inheritance (ie, dominant, recessive). Precocious emphysema has been described in association with cutis laxa as early as the neonatal period or infancy. The pathogenesis of this disorder includes a defect in the synthesis of elastin or tropoelastin. Marfan syndrome is an autosomal dominant inherited disease of type I collagen characterized by abnormal length of the extremities, subluxation of the lenses, and cardiovascular abnormality. Pulmonary abnormalities, including emphysema, have been described in approximately 10% of patients. Ehlers-Danlos syndrome refers to a group of inherited connective tissue disorders with manifestations that include hyperextensibility of the skin and joints, easy bruisability, and pseudotumors; it has also been associated with a higher prevalence of COPD. Salla disease is an autosomal recessive storage disorder described in Scandinavia; the disease is characterized by intralysosomal accumulation of sialic acid in various tissues. The most important clinical manifestations are severe mental retardation, ataxia, and nystagmus. Precocious emphysema has been described and likely is secondary to impaired inhibitory activity of serum trypsin. The vet's history is positive for decades of tobacco abuse, about 43 pack years (1 pack per day for 43 years). This is certainly the cause of the COPD. Asbestos exposure causes interstitial lung disease, a restrictive form of lung disease which has not been found on imaging or other studies to verify the diagnosis. I found no evidence in medical literature that cold weather causes COPD. The vet died of COPD due to his smoking. I found no evidence that he had COPD symptoms or findings in the service period. The examiner further stated that they found no evidence in medical literature that cold weather injuries can cause or worsen COPD. They noted the Veteran died of COPD due to his smoking. They found no evidence that he had COPD symptoms or worsening COPD due to cold weather injuries of the left lower, right lower, left upper and right upper extremities. They explained that these conditions are completely unrelated. This medically opinion is highly probative evidence against the claim. The examiner demonstrates they were well-informed, the opinion is fully articulated and well-reasoned. It is the most persuasive evidence on the matter of a relationship between the conditions that led to the Veteran's death and service. The Appellant is not competent to render an opinion on this matter of medical complexity. Her opinion is thus outweighed by the VA medical opinion as to the cause of death. The record does not suggest that the COPD or respiratory failure is secondary to a service-connected disability. There is no suggestive medical evidence of such a link; notably the VA medical opinion is wholly against the claim. The record also does not suggest that either the COPD or respiratory failure that caused the Veteran's death is etiologically related to service. There is no medical opinion indicating such a link; notably again the VA medical opinion is wholly against this theory. Again, the Appellant is not competent to opine on this matter of medical complexity. After review of the record, the Board finds service connection is not warranted for the cause of the Veteran's death. The record does not include any probative evidence linking the cause of death to service or a service-connected disability. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for cause of the Veteran's death is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.