Citation Nr: 1743984	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  07-17 131A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death. 


REPRESENTATION

Appellant represented by:	Robert B. Goss, Attorney


WITNESSES AT HEARING ON APPEAL

The Appellant and N.S.




ATTORNEY FOR THE BOARD

S. Yuskaitis, Associate Counsel


INTRODUCTION

The Veteran had active duty service from August 1965 to May 1969.  The Veteran died in January 1993.  The appellant is the Veteran's surviving spouse.

This matter on appeal before the Board of Veterans' Appeals (Board) arises from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

In February 2011, the Board reopened and remanded the claim for additional development.  The Board denied this claim in a July 2012 decision.  The appellant appealed the July 2012 Board decision to the United States Court of Appeals for Veterans Claims (CAVC).  Pursuant to a May 2014 Memorandum Decision, the Court vacated and remanded the claim back to the Board for further development. 

In March 2015, the Boarded remanded this case for further development consistent with the directives of the May 2014 Memorandum Decision.  In March 2017, the Board remanded the claim for a Board hearing. 

The appellant testified before the undersigned Veterans Law Judge (VLJ) in a May 2017 videoconference hearing.  A transcript of the hearing is of record.





FINDINGS OF FACT

1.  The Veteran died in January 1993.  The death certificate lists the immediate cause of the Veteran's death as heart failure with apnea syndrome as the underlying cause.  

2.  Service connection was not in effect for any disability at the time of the Veteran's death.  The Veteran did not have any claims pending at the time of his death. 

3.  The preponderance of the credible and probative evidence of record is against finding that the Veteran's death was caused by a disability incurred in or aggravated by service or is etiologically related to any incident or disease during the Veteran's active service.


CONCLUSION OF LAW

Service connection for the cause of the Veteran's death is not warranted.  38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102-5103A, 5107 (West 2014).  In the instant case, VA's duty to notify was satisfied by letters dated August 2005, May 2009, and March 2011.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Specific to a claim for Dependency & Indemnity Compensation (DIC) benefits, VA's notice requirements include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).  

Here, the appellant was provided with the relevant notice and information in a May 2009 letter.  The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the claims.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).

VA also satisfied its duty to assist the development of the claims.  This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The claims file contains the Veteran's service treatment records (STRs), private treatment records, and lay statements from the appellant and his daughter.  Here, the appellant has not identified any additional, relevant, available evidence.  Therefore, the Board concludes that VA has made reasonable efforts to obtain all records relevant to the claims.

The Court's May 2014 Memorandum Decision previously determined that VA failed to satisfy its duty to assist as to the VA procedures contained in the VA Adjudication Procedures Manual (M21-1MR) in regards to the question of whether the Veteran served on a qualifying air base as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence."  In this regard, the Board notes that the AOJ acknowledged the Veteran's service at the air base perimeter and thus conceded the Veteran's exposure to herbicide agents.  See Supplemental Statement of the Case, August 2016.  As a result, any flaw in regards to VA's duty to assist as to the VA procedures contained in the VA Adjudication Procedures Manual is rendered moot and not prejudicial to the appellant. 

A VA medical opinion was also provided in August 2015.  The Board acknowledges the appellant's complaints that this opinion failed to consider the Veteran's Agent Orange exposure or the private medical opinion of record.  However, no inaccuracies or prejudice is demonstrated with respect to the findings, and it is consistent with the other evidence of record.  The VA medical examiner did in fact take into consideration the totality of the record, including the private medical record from Dr. J.W.M.  The Board finds that the August 2015 medical opinion is adequate to decide the merits of the case because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination including relevant medical and peer-reviewed literature.  See 38 C.F.R. § 3.159(c)(4) (2016); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Neither the appellant nor her representative has advanced any additional procedural arguments in relation to VA's duty to notify and assist.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...").

As VA satisfied its duties to notify and assist, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103, 5103A, or 38 C.F.R. § 3.159, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claims.

II. Laws and Regulations

The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death.  38 C.F.R. § 3.312(a) (2016).  A principal cause of death is one which, 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) (2016).  A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death.  See 38 C.F.R. § 3.312(c) (2016).

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was itself of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4) (2016).

In order to establish service connection for the cause of death, there must be (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.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

At the time of his death, the Veteran was not service-connected for any disabilities. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016).  That determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2016).

If a Veteran was exposed to a herbicide agent (e.g., Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II or adult-onset diabetes mellitus), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (2016).  Recently, VA amended the list of covered diseases presumed service-connected due to herbicide exposure as to include the conditions of all chronic B-cell leukemia's (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease.  See 75 Fed. Reg. 52,202-53,216 (Aug. 31, 2010), to be codified later at 38 C.F.R. § 3.309(e) (2016). 

VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586-57589 (1996). 

The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 

Notwithstanding the presumption, service connection for a disability claimed as due to herbicide exposure (Agent Orange) may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303.

Service connection may also be presumed for certain chronic diseases, including cardiovascular-renal disease including hypertension, diabetes mellitus, endocarditis, and myocarditis, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2016).

Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted.  That does not mean that any manifestations in service will permit service connection.  To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b) (2016).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim.  38 C.F.R. § 3.303(b) (2016).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology.  Continuity of symptomatology applies only to those conditions explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2016).  Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

III. Factual Background

The Veteran's STRs are silent for complaints, findings, symptoms, treatment, or diagnosis relating to heart failure, apnea syndrome, and diabetes mellitus type II. 

An April 1987 hospital admission record noted continued evaluation after his colonoscopy which disclosed a large colonic polyp in evaluation of rectal bleeding.  His only prior hospitalization noted was a hospitalization in 1981 for headaches possibly related to hypertension.  He had an underlying health problem only of obesity and hypertension with obesity present since childhood and hypertension evidently well-controlled.  The Veteran presented as an obsess, well-nourished, well-developed man with blood pressure of 120/85 and pulse of 68 and regular.  Cardiovascular examination revealed no murmurs or gallops.  

March 1989 private treatment record noted sleep apnea syndrome as "probable." 

A September 1989 private treatment record diagnosed the Veteran with diabetes mellitus. 

An April 1991 private treatment record reflects the Veteran gained a great deal of weight since his last colon surgery in 1989 when he was able to stop his blood pressure and diabetes medication.  The Veteran was to restart Tenormin 100 mg a day and the plan was to get glycohemoglobin.  An August 1991 private treatment note recorded the Veteran had a history of insulin-dependent diabetes in the past, but had been off the insulin for some time.  He now presented with recent weight loss, polyuria, and polydipsia.  He was told to restart Glucotrol 5 mg bid, later increased to 2 bid.  His blood sugars were adequately controlled on that dose.  

December 1991 private treatment records noted the Veteran's admission into the hospital with acute respiratory failure related to obesity and acute ethanol toxicity.  Diabetes mellitus was listed as a principal diagnosis.  Secondary diagnosis or complications listed included hypertension, sleep apnea disorder, obesity, and status post colon resection for carcinoma.  Upon history of present illness, the appellant reported that the Veteran became unresponsive with labored gurgling respirations and when seen in the emergency room he was somewhat responsive to pain only.  The Veteran had reportedly drank approximately a case of beer.  He had a history of sleep apnea diagnosed in 1989 for which there had been no active treatment.  He was also known to have diabetes mellitus type II and was taking Glucotrol.  The appellant also reported the Veteran's past history of hypertension since at least 1981, including hospitalization with high blood pressure and severe headaches in 1981.  The appellant reported an onset of diabetes mellitus in 1987.  She reported taking his blood pressure at home and stated it had been well controlled recently and he was not on medication.  His blood pressure was recorded at 120/70.  Upon physical examination, his heart was regular rate and rhythm without murmurs.  The impression was acute ethanol intoxication with acute respiratory failure, sleep apnea disorder, diabetes mellitus, mild hypertension, obesity, and status post colon resection for carcinoma x2.  

A December 1991 chest x-ray report found the heart to be probably within the upper limits of normal in size for projection, degree of inspiratory expansion, and habitus.  There appeared to be some minor sub segmental atelectasis in the right lung base associated with the relatively high position of the right hemidiaphragm (the latter is a nonspecific finding).  Elsewhere, no consolidation or other active appearing pulmonary parenchymal lesion could be found.  The apparent widening of the upper mediastinum may well be related to the same geometry giving the heart an enlarged appearance.  The impression was other than sub segmental atelectasis; no definite acute abnormalities could be confirmed. 

The Veteran died on January [redacted], 1993.  The Veteran's death certificate lists his immediate cause of death as heart failure with apnea syndrome as the underlying cause.  It was noted that alcohol use probably contributed to his death.  At the time of his death, the Veteran was not in receipt of VA disability benefits and there were no pending claims at the time of his death. 

The appellant stated the Veteran was exposed to Agent Orange while stationed at U-Tapao AB Thailand from June 5, 1968 to May 31, 1969.  The appellant's representative also submitted copies of VA publications and other literature regarding the use of herbicides around the perimeters of military bases in Thailand. 

In July 2005, the appellant filed to reopen the claim for service connection for the cause of the Veteran's death.  The appellant argued that the private medical treatment records note that the Veteran was diagnosed with diabetes mellitus in September 1987 and that the Veteran was taking medication for his diabetes.  The Veteran's blood pressure was also recorded high which the appellant stated was a secondary condition to the Veteran's diabetes.  The appellant also asserted that the death certificate listed heart failure as the cause of death, but that this was entered by the Justice of the Peace without medical evidence presented to him.  Finally, the appellant asserted that his diabetes was a presumptive condition due to his exposure to Agent Orange and was the cause of his many physical problems. 

A September 2005 letter from Dr. J.W.M., MD notes that the Veteran had long standing type II diabetes that was first diagnosed in September 1987.  Dr. J.W.M. also noted that the Veteran had multiple other medical problems including morbid obesity, hypertension, and colon cancer that had been resected.  Dr. J.W.M. also provided that it was not possible to separate the Veteran's extensive heart disease he "undoubtedly" had from his diabetes, which over time is a macro- and micro-vascular disease leading to a great risk for cardiovascular events.  Dr. J.W.M. opined that diabetes mellitus was a causative factor in the Veteran's death.  

In September 2006, the appellant stated that the death certificate was completed by a Justice of the Peace who had no medical training.  Additionally, the appellant gave the Justice of the Peace this information on the cause of death.  Additionally, it was argued that the appellant's state of mind at the time of the Veteran's death was impacted and she was not thinking clearly.  The statement also asserted that the Veteran was being treated for a heart condition and diabetes type II at the time of his death. 

In June 2007, the appellant stated that the Veteran's death certificate was not complete as to the reasons for death.  She stated that the Veteran had diabetes and this could cause physical problems of the heart as well as apnea.  The appellant further argued that the person who entered the reasons for death was a Justice of the Peace and did not have medical experience.  

In a June 2009 statement, the appellant argued that diabetes mellitus type II was a contributing factor to the Veteran's cause of death. 

In a February 2012 correspondence, the appellant conveyed her belief that illnesses, diseases, or conditions are not apparent immediately.  For the Veteran, they were not apparent a year of his discharge.  She described that the Veteran knew he might have early stages of an illness, disease or condition but he never felt them until they became severe. 

A VA medical opinion was provided in August 2015.  The VA examiner first provided that it is less likely than not that the Veteran had ischemic heart disease, including acute, subacute, or chronic myocardial infraction, atherosclerotic heart disease, coronary artery disease (CAD), status post coronary artery bypass grafting, stable angina or Prinzmetal's angina.  The VA examiner stated that there was no objective evidence the Veteran had any cardiac testing such as an echocardiogram, stress test or cardiac cauterization.  The VA examiner thoroughly reviewed the Veteran's medical records from 1979 to 1992 and determined that there was no objective evidence of symptoms attributable to a cardiac cause or a diagnosis of any heart condition during this period.  

The VA examiner further stated that the only two documents of record that reported the Veteran had heart disease was the Veteran's death certificate and the 2005 letter from Dr. J.W.M.  Turning to the death certificate, the death certificate noted the primary cause of death was heart failure with apnea syndrome listed as an underlying cause.  Alcohol use was also noted as a probable contributing cause to the Veteran's death.  The VA examiner acknowledged that the information for the details was provided by the Veteran's widow and the death certificate was signed and certified by a justice of the peace.  Accompanying verbiage in the death certificate by signature of certifier stated "to the best of my knowledge death occurred at the time, date and place, and due to the cause(s) and manner as stated on the basis of examination and/or investigation.  In my opinion, death occurred at the time, date, and place and due to the cause(s) and manner as stated."  The VA examiner was aware of the appellant's contentions that the death certificate was signed by a justice of the peace without medical evidence being presented to him regarding the cause of death.  In this regard, the VA examiner found that the appellant acknowledged that she was the source of information for details in the death certificate in a 2006 statement and at that time the appellant suggested that her state of mind at the time of the Veteran's death may have affected her report.  However, since the appellant's 2005 and 2006 statements questioning the accuracy of the death certificate did not occur until more than ten years after the Veteran's death and there was no evidence that the death certificate had ever been amended to reflect a change in diagnoses for causes of death, the VA examiner gave less weight to the appellant's later statements.  

With regard to the second document suggesting the Veteran had a heart condition, the 2005 letter from Dr. J.W.M. was written ten years after the Veteran's death.  Although this letter stated that the Veteran "undoubtedly" had "extensive heart disease," the VA examiner found that the letter did not document any specific heart condition that had been diagnosed or treated by Dr. J.W.M.  The letter also gave the opinion that the Veteran's diabetes was certainly a causative factor in the Veteran's death.  However, the VA examiner found that this private physician did not include any objective supporting documentation of a diagnosed heart condition, symptoms attributed to a cardiac cause, or that the Veteran's diabetes in some way contributed to his death.  The VA examiner opined that there was no objective evidence to refute the findings reported in the official death certificate which showed heart failure and apnea syndrome as causes of death in the Veteran and alcohol use as a "probable" involvement in his death.  

While the Veteran did not appear to have ever been formally diagnosed with obstructive sleep apnea by a polysomnography, the VA examiner found the Veteran had multiple risk factors and findings suggestive of the presence of severe sleep apnea.  These risk factors included obesity, increasing age, male gender, reports of excessive fatigue by the Veteran and physical examination finding of short stature with short, heavy neck.  Most notably, the Veteran was hospitalized in 1991 with acute respiratory failure due to acute alcohol intoxication, which required ventilator support, after he presented unresponsive except to pain with labored, gurgling respirations, report of consuming a case of beer that same day and blood alcohol level of 0.22.  A secondary diagnosis of obstructive sleep apnea was reported at that time, based on subjective reports by the Veteran and his wife.  After review of medical literature, the VA examiner explained that worsening obesity is strongly associated with development of obstructive sleep apnea and increased risk for hypoxia (obesity hypoventilation syndrome) while awake.  The use of alcohol can exacerbate obstructive sleep apnea.  While the Veteran did not have any objective records demonstrating treatment for heart failure prior to his death, it was reported as the immediate cause of death.  There is no objective evidence that he was seen by his medical providers between July 1992 and January 1993.  The VA examiner stated it was certainly possible that this condition could have developed during this time period.  The medical literature provided reported heart failure can be caused by obstructive sleep apnea. References also reported that heart failure due to obstructive sleep apnea is more strongly associated with severe obstructive sleep apnea and obstructive sleep apnea which is not being treating with CPAP.  

It was the VA examiner's opinion that it was less likely than not that the Veteran had ischemic heart disease, including acute, subacute, or chronic myocardial infraction, atherosclerotic heart disease, coronary artery disease (CAD), status post coronary artery bypass grafting, stable angina or Prinzmetal's angina which lead to his death based on the lack of objective records documenting a diagnosis of ischemic heart disease, a 1992 EKG which did not show evidence of ischemia, and a lack of cardiovascular related symptoms reported on medical visits between 1979 and 1992.  His cause of death was reported as heart failure which could have been caused by numerous conditions, including coronary artery disease, hypertension, obstructive sleep apnea, and excessive alcohol use.  Additionally, the VA examiner provided that there was no evidence regarding the Veteran's left ventricular function preceding his death.  None of the available records discussed the Veteran's functional limitation except to note that he had worsened fatigue in 1992.  However, no mention was made of the fatigue's impact on his ability to exercise or exert himself.  The Veteran did have multiple conditions which could impact his exercise tolerance, including obesity, probable sleep apnea, medication side effects (i.e., Tenormin for hypertension), and alcohol use. 

The VA examiner next opined that it is less likely than not that the Veteran's type II diabetes and/or ischemic heart disease was the principle or a contributory cause of the Veteran's death.  The VA examiner provided that there was no evidence that the Veteran had any symptoms of ischemic heart disease or any confirmed diagnosis of ischemic heart disease prior to his death.  After review of medical literature, the VA examiner stated that there is a reported increased risk of heart failure in diabetic patients.  However, these references noted heart failure attributable to diabetes was seen more often in elderly patients who have had a longer duration of diabetes as well as other risk factors, including insulin use, ischemic heart disease, peripheral arterial disease, elevated serum creatinine, poor glycemic control and microalbuminuria.  The definition for diabetic cardiomyopathy, or heart failure due to diabetes, includes "ventricular dysfunction that occurs in diabetic patients independent of a recognized cause (e.g., coronary heart disease, hypertension."  The Veteran had a history of diabetes for around five years prior to his death and was only 47 years old at the time of his death.  He was only treated with intermittent use of oral diabetes medication because the Veteran reported good glucose control and weight loss after his diabetes diagnosis.  The Veteran had no objectively documented daily insulin use, no documented chronic kidney disease or diabetic nephropathy, and no documented diagnosis of peripheral artery disease or coronary artery disease.  The Veteran had multiple recognized causes for heart failure, as detailed above.  His medical history was not consistent with that of diabetic cardiomyopathy and he did not meet the diagnostic criteria for diabetic cardiomyopathy.  

The VA examiner concluded that she found no objective evidence that the Veteran's diabetes affected any vital organs, such as the heart, circulatory system, lungs, liver, brain or kidneys. The medical evidence did not report any complications attributable to diabetes.  The VA examiner did not find any objective evidence that diabetes accelerated the Veteran's death due to heart failure and/or sleep apnea.  Likewise, the VA examiner concluded that the evidence of record did not support the contention that diabetes otherwise caused the Veteran's death or contributed substantially or materially to the cause of the Veteran's death.  

After review of the record, the VA examiner stated that the only evidence suggesting that the Veteran's diabetes "was certainly a causative factor" in the Veteran's death was in the 2005 letter from Dr. J.W.M.  However, the VA examiner found that Dr. J.W.M. did not document a specific heart disability that had been diagnosed or treated by him.  Additionally, the private physician did not include any objective documentation or peer-reviewed medical literature to support his assertion that the Veteran's diabetes in some way contributed to his death.  Because there was no objective evidence of worsening of the Veteran's diabetes prior to his death, his medical history was not consistent with a diabetic cardiomyopathy, and diabetes was not listed as an underlying cause on his death certification, it was the VA examiner's opinion that it was less likely than not that the Veteran's type II diabetes was the principal or a contributory cause to the Veteran's death. 

In August and September 2015, Dr. C.P.K., M.D., reviewed the August 2015 VA examination and agreed with the assessment and opinion. 

The appellant testified before a decision review officer (DRO) hearing in April 2016.  The appellant, through her representative, argued that the Veteran had Agent Orange exposure on the perimeter of the Air Force Base in Thailand and the Veteran's death was due to his ischemic heart disease and diabetes mellitus type II. 

In the August 2016 Supplemental Statement of the Case, the AOJ conceded exposure to Agent Orange exposure.  However, service connection for the cause of the Veteran's death was denied because the AOJ stated the evidence failed to show the Veteran died of a medical condition associated with herbicide exposure.  

In a September 2016 statement, the appellant argued that VA erred in determining that the evidence failed to show that the Veteran died of a medical condition associated with herbicide exposure.  The Veteran's death was related to his active service, in view of herbicide use in Thailand at U-Tapao Royal Thai Air Force Base, to include addressing the private medical opinion stating the Veteran's diabetes mellitus "was certainly a causative factor in the [Veteran's] death."  The appellant further argued that presumptive service connection is also applicable because the Veteran's cause of death listed on his certificate of death signed by the Justice of the Peace M.W.T. includes heart failure.  The Veteran's death therefore must be granted service-connection because diabetes mellitus II and ischemic heart disease are presumptive diseases of herbicide exposure.  The appellant further argued that the 2015 VA examiner missed the statement from Dr. J.W.M. in 2005.  Furthermore, the appellant contended that the RO ignored information that CAVC and the Board had previously conceded as the listed cause of death of ischemic heart disease and the unlisted diabetes mellitus II were inextricably intertwined with the listed cause of death. 

In May 2017, the appellant testified that she was married to the Veteran right after he got out of the service to the time of his death.  The appellant, through her representative, argued that the Veteran was on security police duty at the U-Tapao Air Force Based while on active duty.  The appellant testified that the photos associated with the claims file depicted the Veteran at the main gate of U-Tapao Airforce, the Royal Thai Airforce Base.  The representative asserted that the main gate is definitely part of the perimeter of the base.  

The appellant, through her representative, also emphasized the Veteran's treating physician statement and that the appellant and the Veteran's daughter, N.S., are competent to state that he had diabetes.  The appellant stated that Dr. J.W.M. was the family doctor and the Veteran's treating physician.  The Veteran had hypertension, colon cancer, heart failure, apnea syndrome, and diabetes.  The appellant stated that doctors told her the Veteran had diabetes type 2 which he was treated for.  The appellant also stated that the doctor told her that there was no doubt that the Veteran's death was heart related and tied with the type 2 diabetes.  The appellant further stated that Dr. J.W.M. treated everyone in their family.  They lived in a very small town and their doctor was a family practice that had been there for many years.  She then said the Dr. J.W.M. who wrote the letter in September 2005 was the son of the doctor that treated the Veteran.  

N.S., the Veteran's daughter, also testified that her father had diabetes.  She knew this because in 1987 when he started seeing a doctor it was her senior year of high school.  She went with him to his appointments.  N.S. was prepared to help him maintain his levels and knew what to do if the Veteran was having heart issues or having issues with his sugar levels. 

IV. Analysis

The appellant argued that the Veteran's death was related to active service, in view of herbicide use in Thailand at U-Tapao Royal Thai Air Force Base. Specifically, the appellant asserts that the Veteran died from diseases known to be the result of herbicide exposure.  

A. Herbicide Exposure

The Board considered the appellant's contentions regarding the Veteran's presence in Thailand.  VA has determined that U.S. Air Force Veterans who served on RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides.  However, to benefit from a presumption of herbicide exposure at one of the previously mentioned air bases, a veteran must have served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10 (q).

At the outset, the Board notes that the Veteran's exposure to a herbicide agent has previously been conceded.  See Supplemental Statement of the Case, August 2016.  Accordingly, the Veteran is presumed to have been exposed to herbicide agents during his service pursuant to 38 C.F.R. § 3.307(a)(6).  As mentioned above, diabetes mellitus type 2 and ischemic heart disease are among the diseases eligible for presumptive service connection due to herbicide agent exposure.  As a result, the Board first turns to whether the cause of death may be service-connected due to either of these disabilities. 

B. Diabetes Mellitus Type 2

The appellant asserts that the Veteran's diabetes mellitus was a principle cause of the Veteran's death.  The appellant also contends that the Veteran's diabetes mellitus was a contributory cause of the Veteran's heart failure.  

At the time of the Veteran's death, he was not service connected for diabetes mellitus.  However, service connection for this disability would be warranted due to the legal presumption based on herbicide exposure.  38 C.F.R. § 3.307 (2016).  The question at issue becomes whether there is a relationship between the Veteran's diabetes mellitus and the Veteran's cause of death.  While the Board has no doubt the Veteran carried a diagnosis of diabetes mellitus prior to his death, a Certificate of Death from the Texas Department of Health - Bureau of Vital Statistics listed the Veterans cause of death as heart failure with an underlying cause of death of apnea syndrome.  There was no reference in the underlying cause of death section to diabetes mellitus.  

In this regard, the probative medical evidence of record shows that the diabetes mellitus was not related to the Veteran's cause of death and did not contribute to the Veteran's heart failure.  The Board finds the most probative evidence of record is the August 2015 VA medical opinion.  Upon examination of the entire evidence of record, the VA examiner noted the Veteran had a history of diabetes for around five years prior to his death and was only 47 years old at the time of his death.  The Veteran was only treated with intermittent use of oral diabetes medication because the Veteran reported good glucose control and weight loss after diabetes diagnosis.  The Veteran also had multiple recognized causes for heart failure and his medical history was not consistent with that of diabetic cardiomyopathy and he did not meet the diagnostic criteria for diabetic cardiomyopathy.  Significantly, the VA examiner opined that there was no evidence that diabetes affected any vital organs, including the heart.  As a result, the VA examiner opined that it was less likely as not the Veteran's diabetes was the principal or a contributory cause to the Veteran's death. 

The Board acknowledges the September 2005 letter from Dr. J.W.M., MD. Generally, the law recognizes that the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet.App. 444 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet.App. 185 (1999); Hernandez-Toyens v. West, 11 Vet.App. 379 (1998); see also Claiborne v. Nicholson, 19 Vet.App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data); Miller v. West, 11 Vet.App. 345 (1998) (observing that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record).

The Board has considered the letter from Dr. J.W.M. stating that diabetes mellitus was a causative factor of death.  However, this letter did not provide adequate rationale to support his opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (holding that to have probative value, a medical report must contain not only a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two).  Notably, the private medical letter did not explain what heart disability the Veteran suffered from nor did the letter provide any explanation as to why Dr. J.W.M. articulated that the Veteran's diabetes was a causative factor to his death.  Dr. J.W.M.'s letter was the only evidence of record attributing the Veteran's death to diabetes.  Indeed, the August 2015 VA examination submitted detailed peer-reviewed medical literature to support the opinion that the Veteran's medical history was not consistent with that of diabetic cardiomyopathy and the Veteran did not meet the diagnostic criteria for diabetic cardiomyopathy.  Consequently, the Board is unable to afford Dr. J.W.M.'s letter any probative value. 

In assessing the evidence, the Board acknowledges the appellant and the Veteran's daughter are competent to provide evidence regarding the symptoms the Veteran exhibited prior to his passing.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology).  However, as the appellant's lay statements relate to the etiology of the Veteran's death due to diabetes mellitus, the Board is unable to accord the appellant's lay statement probative weight because she is not competent to render a medical diagnosis or opinion on such a complex medical question.  See Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis); see also Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).

For the foregoing reasons, the Board finds the preponderance of the evidence does not show the Veteran's diabetes mellitus was either a principal or contributory cause of death.  Accordingly, service connection for cause of death due to diabetes mellitus is not warranted.  Although the Board is sympathetic to the appellant's claims, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law.  See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board emphasizes that the denial of these claims do not in any way diminish the Veteran's active service to our country.  Absent evidence that establishes a nexus between the Veteran's cause of death and service, the Board finds that service connection for the Veteran's cause of death is not warranted.  Because the preponderance of the evidence is against the claim for service connection for the Veteran's cause of death, the claim must be denied and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).

C. Heart Disability & Apnea Syndrome 

Turning to the appellant's contention that the claim should be considered under the legal presumption for ischemic heart disease due to the Veteran's conceded exposure to herbicides during active service.  However, as noted above, the first element of service connection requires medical evidence of a present disability.  Here, the medical evidence of record does not indicate a diagnosis of nor is there any indication of ischemic heart disease.  The Board notes that the cause of death from  heart failure is not the equivalent of a diagnosis of ischemic heart disease.  Accordingly, service connection for the cause of death based on this condition is not warranted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim.").

As noted above, the Veteran died on January [redacted], 1993.  The Veteran's death certificate lists his immediate cause of death as heart failure with apnea syndrome as the underlying cause.  See January 1993 Certificate of Death.  Even though presumptive service connection is not warranted for ischemic heart disease, the appellant is not precluded from establishing service connection for cause of death with proof of direct causation for a heart disability and/or apnea syndrome.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997).

First, the Veteran's service treatment records show no in-service complaints of, treatment for or a diagnosis related to a heart disability or apnea syndrome.  At the time of the Veteran's enlistment examination in July 1965, no issues were noted.  See July 1965 Report of Medical Examination.  A blood pressure reading showed 112/76. Further, he denied any diabetes or heart trouble.  Subsequently, at the time of the Veteran's separation examination in May 1969, no issues were noted other than his identifying body marks, scars, tattoos, and mouth and throat ("tonsils enucleated"), and high frequency bilateral hearing loss.  See May 1969 Report of Medical Examination.  A blood pressure reading showed 132/84.  Furthermore, the remainder of his service treatments records is silent as to any heart or apnea related disability.  For this reason, the Board finds there is no evidence of an in-service incurrence.

Additionally, the Veteran's post-service medical evidence of record does not show compensable manifestations of a heart disability within one year of separation of service.  In fact, the August 2015 VA examiner noted a lack of cardiovascular related symptoms reported on medical visits between 1979 and 1992.  Additionally, the VA examiner, although not certain to a diagnosis of sleep apnea, stated the Veteran could have developed sleep apnea between July 1992 and January 1993.  While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the  claimed disabilities to active duty, despite contentions to the contrary.  Specifically, none of the medical evidence indicates that a link exists between a heart disability and the Veteran's service, or to his toxic herbicide exposure.  Therefore, the medical evidence does not indicate the presence of such a relationship.

The probative medical evidence of record addresses the Veteran's multiple risk factors for both a heart disability and apnea syndrome.  Notably, the August 2015 VA examination found that the Veteran had multiple recognized causes for heart failure.  In fact, the VA examiner determined that there was no objective evidence of symptoms attributable to a cardiac cause or a diagnosis of any heart condition from 1979 to 1992.  Moreover, the VA examiner found that the Veteran had not been formally diagnosed with obstructive sleep apnea by a polysomnography.  However, the VA examiner found that the Veteran did have multiple risk factors and findings suggestive of the presence of severe sleep apnea.  These risk factors included obesity, increased age, male gender, excessive fatigue, and physical stature.  The VA examiner noted that worsening obesity is strongly associated with the development of obstructive sleep apnea and the use of alcohol exacerbates obstructive sleep apnea.  The VA examiner said it was certainly possible that sleep apnea could have developed between July 1992 and January 1993. 

Significantly, the appellant has not presented or identified any contrary medical opinion that supports the claims for service connection for a heart disability or apnea syndrome.  VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991).  

In sum, the medical evidence of record fails to show that the Veteran's heart disability or apnea syndrome had its onset in service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service, to include as due to in-service herbicide exposure (Agent Orange).  38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).  

Additionally, the Board finds that service connection for a heart disability is not warranted on a secondary basis.  38 C.F.R. § 3.310(a) (2016).  The probative August 2015 VA medical opinion specifically opined that the Veteran's service-connected diabetes mellitus type II did not affect any vital organ, including the heart, and the medical evidence did not report any complications attributable to diabetes.  The VA examiner further did not find any objective evidence that the diabetes accelerated the Veteran's death due to heart failure and/or sleep apnea.  

The Board has considered the letter from Dr. J.W.M. stating that it was not possible to separate the Veteran's extensive heart disease from his diabetes.  However, this letter did not provide adequate rationale to support his opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (holding that to have probative value, a medical report must contain not only a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two).  Notably, the private medical letter did not explain what heart disability the Veteran suffered from nor did the letter provide any explanation as to Dr. J.W.M.'s opinion.  Notably, Dr. J.W.M.'s letter was the only evidence of record with such opinion.  Indeed, the August 2015 VA examination submitted detailed peer-reviewed medical literature to support the opinion that the Veteran's diabetes had no effect on a vital organ, including his heart.  Consequently, the Board is unable to give Dr. J.W.M.'s letter significant probative value.

The Board notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. §§ 3.303(a), 3.159(a) (2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board finds that the appellant's opinions on this issue do not constitute competent evidence.  In this regard, whether a heart disability that develops decades after being exposed to an herbicide agent may be caused by such exposure, not to mention the likelihood of such, or the whether there is a nexus of a disability to service are complex medical determination that are not within the province of lay observation.  Such a relationship cannot be perceived through the senses alone, given, among other things, the amount of time that has elapsed, the lack of a physically observable sequence of cause-and-effect, and the presence of other risk factors.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) ( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature").  Rather, this determination may require an understanding of the nature of the chemicals used in herbicide agents, details of the Veteran's disability, an informed assessment of the presence of various known risk factors for developing such disability, or perhaps scientific studies or statistical data supporting the likelihood of a relationship to herbicide exposure, among other factors.  These considerations exceed the province of lay observation by their nature and complexity and are not amenable to lay observation alone. 

As a result, the Board finds that the Veteran's cause of death is not etiologically related to service. At the time of the Veteran's death, service connection for a heart disability and apnea syndrome are not warranted, as discussed in greater detail above.  Therefore, service connection for the Veteran's cause of death must also be denied.  Accordingly, the Board finds the preponderance of the evidence is against the appellant's claim for service connection for cause of death due to a heart disability and apnea syndrome.  While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against the appellant's claim.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Although the Board is sympathetic to the appellant's claims, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law.  See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board emphasizes that the denial of these claims do not in any way diminish the Veteran's active service to our country.  Absent evidence that establishes a nexus between the Veteran's cause of death and service, the Board finds that service connection for the Veteran's cause of death is not warranted.  Because the preponderance of the evidence is against the claim for service connection for the Veteran's cause of death, the claim must be denied and the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).


ORDER

Service connection for cause of death is denied. 





____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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