Case 25000822

Summary

The Veteran, an Army Veteran who served from April 1960 to April 1963, passed away in March 2016. His surviving spouse appealed the denial of service connection for the cause of his death. The Veteran was service-connected for bilateral hearing loss (50%) and tinnitus (10%) at the time of his death. The death certificate listed cardiogenic shock as the immediate cause, with underlying causes including myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, and hypertension. The Appellant argued that the Veteran's death was related to service, specifically claiming that undiagnosed PTSD from service led to hypertension and heart disease, and that his smoking habit, which began in service, contributed to COPD and subsequent heart disease. The Board remanded the claim for a VA medical opinion to explore these theories. A February 2024 VA examination concluded that the Veteran's causes of death, including myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, and hypertension, had no correlation to his service-connected disabilities or service. The examiner noted that service treatment records were silent regarding these conditions, and diagnoses occurred decades after service. An addendum opinion in September 2024 further stated that PTSD was not diagnosed until 2014, with no indication of onset during service, and that alcohol abuse and negative psychiatric screenings occurred long after service. The VA examiner opined that PTSD or other psychiatric disorders were unlikely to have caused the hypertension leading to the fatal conditions, and that a nexus between PTSD and service could not be made. The Board found the VA opinions persuasive, well-reasoned, and more probative than the Appellant's contentions and a private nexus letter. The Board denied service connection for the cause of death, finding the evidence persuasively weighed against the claim and the benefit of the doubt doctrine inapplicable.

Rationale

VA examiner opined causes of death not correlated to service-connected disabilities or service.; Service treatment records silent for causes of death; diagnoses occurred decades post-service.; Private nexus letter's opinion regarding smoking and COPD/hypertension was outweighed by VA opinions.

Full Decision Text

Citation Nr: 25000822
Decision Date: 01/22/25	Archive Date: 01/22/25

DOCKET NO. 18-55 237
DATE: January 22, 2025

ORDER

Entitlement to service connection for cause of death is denied.

FINDING OF FACT

1. The Veteran died in March 2016; service connection was in effect for bilateral hearing loss, rated 50 percent disabling, and tinnitus, rated 10 percent disabling.

2. The death certificate listed cardiogenic shock, with other underlying causes listed as myocardial infarction, atherosclerotic cardiovascular disease, chronic obstructive pulmonary disease (COPD), hyperlipidemia, and hypertension.

3. The evidence is persuasively against finding that the Veteran's death was caused or otherwise etiologically related to a disorder incurred in service, and his death is not otherwise etiologically related to 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 FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 1960 to April 1963, with no foreign or sea service.

The Veteran died in March 2016 and the Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2018 rating action of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened and denied a claim of service connection for cause of the Veteran's death.

The Appellant previously submitted a claim of entitlement to service connection for cause of the Veteran's death that was previously denied in an unappealed October 2016 rating decision.  In August 2023, the Board noted that medical records, testimony, and lay statements regarding the relationship between the cause of the Veteran's death and service were added to the record.  As the documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand, the Board found new and material evidence had been received to reopen the claim.  See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010).

The Appellant presented sworn testimony at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in February 2022.  The Appellant was notified of the inaudible or unavailable hearing recording in May 2023 and given the opportunity to request another hearing.  The Appellant responded and indicated she did not want another Board hearing.  See June 6, 2023, Correspondence.

Entitlement to service connection for 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).

The Appellant urges that the Veteran's death in March 2016 is related to his active service.

The Veteran died in March 2016.  The death certificate lists the immediate cause of death as cardiogenic shock which had been present for "
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).

The Appellant urges that the Veteran's death in March 2016 is related to his active service.

The Veteran died in March 2016.  The death certificate lists the immediate cause of death as cardiogenic shock which had been present for "minutes," with other underlying causes listed as myocardial infarction, present for hours and atherosclerotic cardiovascular disease, present for years.  Other significant conditions included chronic obstructive pulmonary disease (COPD), hyperlipidemia, and hypertension.  At the time of his death, service connection was in effect for bilateral hearing loss, rated 50 percent, and tinnitus, rated 10 percent.

The Appellant urges that the Veteran had diagnosed posttraumatic stress disorder (PTSD) for which he did not file a claim of service connection during his lifetime, but nevertheless was attributable to service.  This, in turn, caused his hypertension, heart disease and death.  See, e.g., September 2018 Notice of Disagreement, December 2018 VA form 9.  She has submitted medical journal evidence in support of her argument, along with a January 2014 medical report from a non-VA psychiatrist diagnosing PTSD and mentioning that he talks of his war experiences.

Alternatively, she urges that smoking which started in service led to post service COPD which contributed to his death.  She has also submitted a September 2016 letter from a doctor stating that stress during the pre-Vietnam era could have contributed to the Veteran developing his smoking habit.  That doctor noted that the Veteran suffered from chronic COPD until his death, according to his wife and son.  He noted that the Veteran was reportedly chronically short of breath and had a cough for many years.  This provider then indicates, "Because he started smoking in the military, developed chronic lung disease which may have led to heart disease, does this qualify his wife, [Appellant], to receive survival benefits even if she also works."

VA treatment records prior to his death reflect he suffered from significant conditions including heart disease, hypertension and COPD.

In the context of a DIC claim, VA must provide a medical opinion where (1) the claimant requests VA's assistance in obtaining a medical opinion, (2) the provision of a medical opinion is necessary to substantiate the claimant's claim for benefits, and (3) there exists a reasonable possibility that provision of such assistance would in fact aid in substantiating the claim.  See Wood v. Peake, 520 F.3d. 1345, 1348 (Fed. Cir. 2008) (explaining the Secretary's obligation to provide a medical opinion under 38 U.S.C. § 5103A(a) in the context of a DIC claim.)

In August 2023, the Board noted that a medical opinion had never been obtained to explore the theories of entitlement that were laid out by the Appellant, to include primarily whether the Veteran had PTSD related to his in-service experiences that caused or contributed substantially or materially to his cause of death, by way of hypertension and/or heart disease.  The Board remanded the claim to obtain a medical opinion prior to adjudication on the issue.

The Board also noted that the Appellant testified that the Veteran only confided in his brother about his military experiences; the Board invited the Veteran's brother to submit a statement relevant to the appeal.  However, no such statement in support of the appeal was submitted subsequent to the Board's August 2023 remand.

In February 2024, a VA examiner submitted a VA medical opinion regarding the etiology of the Veteran's cause of death.

The February 2024 VA examiner noted that Veteran passed away in March 2016 and was service-connected for bilateral hearing loss and tinnitus at the time.  The examiner opined that the Veteran's conditions that were listed as causes of death on the death certificate (myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, hypertension, and the claimed condition of post-traumatic stress disorder) have no correlation to the Veteran's service-connected disabilities.  The examiner noted that the September 2016 private nexus letter stated that Veteran smoked for many years up until his death in 2016; the examiner stated that the continued smoking could likely cause COPD and hypertension.  The examiner noted that Veteran's service treatment
4 VA examiner noted that Veteran passed away in March 2016 and was service-connected for bilateral hearing loss and tinnitus at the time.  The examiner opined that the Veteran's conditions that were listed as causes of death on the death certificate (myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, hypertension, and the claimed condition of post-traumatic stress disorder) have no correlation to the Veteran's service-connected disabilities.  The examiner noted that the September 2016 private nexus letter stated that Veteran smoked for many years up until his death in 2016; the examiner stated that the continued smoking could likely cause COPD and hypertension.  The examiner noted that Veteran's service treatment records are silent of any of the Veteran's causes of death; while medical record prior to death indicate the Veteran had heart disease, the heart disease was present over forty-five years after separation from service.  Therefore, the examiner opined that the claimed conditions are less likely than not related to Veteran's active duty service.

In September 2024, the February 2024 VA examiner submitted an addendum medical opinion to supplement the prior submitted opinion.  In the September 2024 VA opinion, the examiner noted that the Veteran has no record of being seen for or diagnosed with PTSD until 2014.  While the Appellant has stated that PTSD was the cause of hypertension and the onset of PTSD was during military service, the examiner stated that there were no reports of psychiatric symptoms or indication of an onset of PTSD during service or shortly after.  In addition, alcohol abuse was not documented until forty-three years after leaving military service, in 2006; results in 2015 for suicidal or violent behavior were also negative.  The examiner noted that Veteran was diagnosed with hypertension in 2004, prior to his documented ETOH abuse (ethyl alcohol or ethanol abuse) in 2006 and prior to psychiatric evaluation in 2014 which diagnosed PTSD.  Therefore, the examiner opined that PTSD or another psychiatric disorder is unlikely to be the cause for hypertension which would have led to myocardial infarction, atherosclerotic cardiovascular disease, COPD, or hyperlipidemia.  The examiner stated that while there are accounts of hardships during military service by the Veteran, the medical records do not support a finding that supports a relationship between a diagnosis of PTSD and military service.

To support the negative nexus opinion, the VA examiner found that there was no evidence in the Veteran's file to support a nexus between PTSD or any other psychiatric disorder and active duty service.  The VA examiner noted the Veteran had 2 medical examinations conducted in April 1960 and March 1963 while in service that were silent for any symptoms or diagnoses related to PTSD.  Service treatment records are further silent for any complaints of treatment for PTSD or other psychiatric disorder.  A further review of the medical records found the Veteran had a PTSD screening complete in June 2008 and the results were negative.  Veteran also had a suicidal/violent behavior screening completed in September 2015 and the results were negative.  The Veteran was reported to have a history of ETOH abuse in 2006; however, this finding is over forty-three years after separation from service.  Therefore, the examiner stated a correlation between PTSD or any psychiatric disorder and Veteran's active duty service could not be made.  See September 2024 C&P Exam.

Additionally, the VA examiner opined that the conditions of cardiogenic shock (immediate cause of death), or other significant condition contributing to death such as myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, and hypertension, are also not connected to the Veteran's military service.  The STRs and medical records are silent for any signs and symptoms of these conditions, including the lack of complaints, treatment, or diagnoses for these conditions on the Veteran's entrance and exit medical examination while in service.  The VA examiner noted that Veteran was diagnosed with hypertension in 2004, which was approximately forty-one years post-separation from service.  Further, Veteran's cardiovascular disease and cardiac issues started approximately in 2013, after he was diagnosed with hypertension.  The medical evidence of record does not indicate that the Veteran's conditions that contributed to cause of death were present prior to the dates of their initial diagnoses, nor were the conditions related to Veteran's service-connected disabilities which were bilateral hearing loss and tinnitus.  Therefore, the VA examiner concluded that a nexus cannot be created between the Veteran's myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, and hypertension conditions and his active duty military service.  See September 2024 C&P Exam.

While the Board has considered the September 2016 nexus opinion, as well as the literature and the arguments submitted in this
 cardiac issues started approximately in 2013, after he was diagnosed with hypertension.  The medical evidence of record does not indicate that the Veteran's conditions that contributed to cause of death were present prior to the dates of their initial diagnoses, nor were the conditions related to Veteran's service-connected disabilities which were bilateral hearing loss and tinnitus.  Therefore, the VA examiner concluded that a nexus cannot be created between the Veteran's myocardial infarction, atherosclerotic cardiovascular disease, COPD, hyperlipidemia, and hypertension conditions and his active duty military service.  See September 2024 C&P Exam.

While the Board has considered the September 2016 nexus opinion, as well as the literature and the arguments submitted in this claim by the Appellant, the evidence is persuasively against the claim.  The Board finds that the February 2024 and September 2024 VA medical opinions are highly probative evidence against the claim.  The examiner demonstrates that she is well-informed, the opinion is fully articulated and well-reasoned, with consideration of all of the evidence to include the conflicting evidence.  The opinions address the September 2016 private nexus opinion and provide a well-supported rationale for rejecting the opinion.  The VA opinions thoroughly considered the Appellant's contentions and are the most persuasive evidence on the matter of a relationship between the conditions that led to the Veteran's death and his active duty 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 opinions as to the cause of death.

Here, the Board finds that the evidence of record does not establish that the Veteran's PTSD was incurred in or caused by his active duty service, nor is there medical evidence relating the Veteran's causes of death to his PTSD or to his active duty service.

In reaching this determination, the Board acknowledges the Appellant's lay statements regarding the Veteran's active duty service and his disorders.  The Board finds that the Appellant is not competent to provide a medical link between the Veteran's disorders and his active duty service as she does not have the requisite medical expertise to opine on such matters.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for the cause of the Veteran's death is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).  The claim is denied.

 

 

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ahmed, Zarar

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.