The claim of entitlement to service connection for the cause of the Veteran’s death is denied.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
Complete list of BVA cases can be found at The Department of Veterans Affairs Website
(Search Dr. Bash, Craig N. Bash M.D., Dr. Craig Bash , Craig Bash, C.N.B.)
Citation Nr: 20039285 Decision Date: 06/09/20 Archive Date: 06/09/20 DOCKET NO. 14-42 391 DATE: June 9, 2020 ORDER The claim of entitlement to service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died in September 2011. His death certificate lists his immediate cause of death as acute myocardial infarction. Chronic obstructive pulmonary disease (COPD) and hypertension were listed as other significant conditions contributing to death. 2. At the time of the Veteran’s death, service connection had been established for mood disorder, evaluated as 50 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as 0 percent disabling (noncompensable). He also had been awarded a total disability rating based on individual unemployability, effective November 7, 2006. 3. Acute myocardial infarction, COPD, and hypertension first manifested many years following separation from service, and persuasive medical opinion evidence addressing the relationship, if any, between any such fatal disability and either the Veteran’s service or service-connected disabilities, weighs against such a finding. 4. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran’s death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1310; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1971 to April 1973. He died in September 2011. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2012 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied the appellant’s claim for service connection for cause of the Veteran’s death. In March 2012, the appellant filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2014 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in December 2014. In November 2017, the appellant’s son appeared, along with her agent, and offered testimony, on her behalf, during a Board video conference hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. In January 2018 and May 2019, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for additional development. After completing further action on each occasion, the AOJ continued to deny the claim, and returned the matter to Board. The Board finds that all notification and development actions needed to fairly adjudicate the claim on appeal have now been accomplished, to the extent possible, and will proceed with appellate review. Service Connection for the Veteran’s Cause of Death To establish entitlement to service connection for the cause of the Veteran’s death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Service-connected disabilities affecting vital organs should receive careful consideration as a contributory cause of death. That requires a determination as to whether there were debilitating effects and a general impairment of health caused by the service-connected disability which rendered the veteran less capable of resisting the effects of an unrelated disability. 38 C.F.R. § 3.312(c)(3). In cases where the primary cause of death is by its very nature so overwhelming that eventual death is anticipated irrespective of coexisting disabilities, there must be a determination as to whether there is a reasonable basis that a service-connected disability had a material effect in causing death. In that situation, it would not generally be reasonable to hold that a service-connected condition accelerated death unless the condition affected a vital organ and was itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). In determining whether a service-connected disability was a contributory cause of death, it must be shown that a service-connected disability contributed substantially, materially, or combined with another disorder to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). See Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Therefore, service connection for the cause of a Veteran’s death may be demonstrated by showing that the Veteran’s death was caused by a disability for which service connection had been established at the time of death or for which service connection could have been established. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as hypertension, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In adjudicating a claim for VA benefits, 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. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. At the time of death, the Veteran was service-connected for the following disabilities: mood disorder, evaluated as 50 percent disabling; degenerative disc disease of the lumbar spine, evaluated as 40 percent disabling; radiculopathy of the right lower extremity, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as 0 percent disabling (noncompensable). He also had been awarded a TDIU, effective November 7, 2006. The Veteran’s death certificate reflects that the Veteran’s immediate cause of death was acute myocardial infarction. COPD and hypertension were listed as other significant conditions contributing to death. The Veteran’s service treatment reports (STRs) do not document any complaints, findings, or treatment for any heart or lung disabilities or hypertension. Post-service treatment records from Texoma Medical Center dated in October 2001 reflect that the Veteran was admitted for a report of severe shortness of breath. He was noted to have smoked two and a half packs of cigarettes per day and had done so for thirty-five years. He did not have significant alcohol intake. He was noted to have been diagnosed with emphysema several years prior and had no other significant medical history. His discharge diagnosis was severe COPD. VA treatment records dated in December 2002 note a history congestive heart failure. The Veteran’s available post-service treatment records s do not document a diagnosis of hypertension. In January 2012 letter, C. Bash, M.D., a private physician, opined that considering every sound medical etiology/principle, to at least the 50 percent level of probability, the Veteran’s demise was due to his service-connected illnesses. The physician explained that the radiculitis from the Veteran’s spine injury resulted in mobility difficulties and he was deconditioned due to his spine and nerve injuries and such deconditioning hastened his demise. The physician concluded that the Veteran would have lived longer had he not been deconditioned due to his service-induced spine and nerve injuries. He also cited literature that mobility problems are associated with cardiovascular disease. During the November 2017, Board hearing, the appellant’s son reported that his father (the Veteran) was in pain constantly due to his service-connected back and right leg disabilities and was basically housebound. He noted that the Veteran’s anxiety and depression deconditioned him, and he could not participate in activities with his children and grandchildren. He stated that the Veteran’s pain, suffering, and mental health issues took a toll on his health. Also during the hearing, the appellant’s representative argued that the private opinion from Dr. Bash was specific in indicating that the Veteran died sooner than he normally would have if not for the service-connected issues, which should be sufficient to grant service connection. In November 2017, the appellant submitted a statement indicating that the Veteran’s service-connected low back, right leg, and mental health disorders adversely affected and aggravated his health. She reported that the Veteran was housebound, and his service-connected disabilities significantly contributed to his early demise. In October 2018, a VA clinician reviewed the claims file and opined that it is less likely than not that the Veteran’s cause of death was proximately due to or the result of the Veteran’s service-connected disabilities. The examiner indicated that the medical literature does not support an association between musculoskeletal conditions such as degenerative changes, radiculopathy, and hearing impairment with the development of atherosclerotic coronary disease, COPD, or hypertension. The examiner noted that atherosclerosis is a pathologic process that causes diseases of the coronary, cerebral, and peripheral arteries and multiple factors contribute to the pathogenesis of atherosclerosis including endothelial dysfunction, dyslipidemia, inflammatory and immunologic factors, plaque rupture, and smoking. Lipid abnormalities also play a critical role in the development of atherosclerosis. The most important risk factor for COPD is cigarette smoking and the amount and duration of smoking contributes to disease severity. Finally, a variety of risk factors are associated with primary hypertension. Hypertension was noted to be more common and more severe in black people and a family history of mother or father having hypertension, excess sodium intake and excess alcohol intake are associated with the development of hypertension. Obesity and weight gain are major risk factors for hypertension and determinant of the rise in blood pressure that is commonly observed with aging. Physical inactivity increased the risk for hypertension and exercising is an effective means of lowering blood pressure. The VA clinician offered an addendum opinion later in October 2018. The examiner once again reviewed the claims file and indicated that none of the Veteran’s service-connected conditions to include mental health condition, lumbar spine condition, right lower extremity radiculopathy, hearing loss, or tinnitus caused or contributed to or permanently aggravated atherosclerosis, COPD, or hypertension. The examiner indicated that the notion that the service-connected conditions caused such disability that his death came sooner than expected is not supported by the medical record or medical literature. The examiner noted that the medical evidence reveals that the Veteran had severe oxygen dependent COPD for many years prior to death and that was the primary reason he required wheelchair assistance and was less active. The examiner indicated that the Veteran’s records clearly document that he had a more than 96-pack-year history of smoking which unmistakably caused, materially contributed, and permanently aggravated COPD, atherosclerosis, and hypertension beyond its natural progression. The Veteran’s service-connected conditions did not contribute substantially or materially to death, did not combine to cause death, and did not aid or lend assistance to the production of death. The examiner reported that coronary atherosclerosis, COPD, and hypertension are well-known to be associated with smoking and mental health conditions while degenerative joint disease, radiculopathy, hearing loss, and tinnitus are not. In June 2019, the Veteran’s representative indicated that “end of death” medical records were not available from Texoma Medical Center. In August 2019, a VA physician reviewed the Veteran’s claims file and relevant medical evidence. The examiner noted that the death certificate lists the Veteran’s cause of death as myocardial infarction and radiculopathy is in no way associated with myocardial infarction in the medical literature. The examiner acknowledged the private opinion and indicated that while it is true that the Veteran’s lumbar spine disability inhibited the Veteran’s mobility which can cause weight gain which increases the risk of hypertension as well as diabetes and incident cardiovascular disease. However, weight-bearing mobility is not an exclusive primary etiology of hypertension, diabetes, or cardiovascular disease. The examiner noted that weight gain is multifactorial and the Veteran’s back injury did not inhibit other types of nonweight-bearing activity (such as stationary bike) or impact dietary discretion which plays a large role in weight gain. Also in August 2019, a VA psychologist reviewed the claims file and relevant medical evidence and opined that it was less likely than not that the Veteran’s service-connected mental health disability, lumbar spine disability, and radiculopathy contributed substantially or materially to the cause of the Veteran’s death or aided or lent assistance to the production of death. The examiner noted that the Veteran passed away due to a myocardial infarction which usually occurs when a portion of the heart is deprived of oxygen as a result of blockage of a coronary artery. Risk factors for myocardial infarction include high blood pressure, atherosclerosis, physical inactivity, diet, uncontrolled stress, smoking, diabetes, genetics/familial history of heart disease per the Mayo Clinic website. She noted studies have shown that the prevalence of depression in cardiac patient ranges from 20 to 30 percent of individuals with depression are at an increased risk for heart disease and in another. She also noted a study in which a professor at Columbia University Medical Center note that an association between depression and heart disease is similar to the association of other risk factors such as cholesterol, hypertension, diabetes, smoking, obesity, and heart disease. She stated that while current medical evidence reports an increased risk of cardiovascular issues due to the risk factors noted, to include immobility, it does not support a cause and effect relationship between mood disorder associated with degenerative joint disease of the lumbar spine and radiculopathy of the right lower extremity and cardiovascular disease or the noted risk factors. She indicated that while high blood pressure, atherosclerosis, diet, physical inactivity, uncontrolled stress, smoking, diabetes, and genetics/familial history of heart problems are risk factors for cardiovascular disease, current medical evidence does not support a cause and effect relationship between those risk factors and cardiovascular disease/myocardial infarction. She indicated that it is not possible to objectively rule out or assess the possible impact that the Veteran’s service-connected disabilities might have had on his functioning without resorting to speculation given the available evidence. In January 2020, another VA clinician reviewed the Veteran’s claims file and included a detailed recitation of the Veteran’s relevant medical history. Although he indicated that the Veteran’s death certificate was not reviewed, he specifically cited the Board remand and noted that the certificate of death revealed that the Veteran’s immediate cause of death was myocardial infarction and COPD and hypertension were listed as other conditions contributing to death. Following a detailed recitation of the evidence including all etiological opinions of record, the clinician indicated that there is no competent medical evidence that the Veteran’s lack of mobility caused or worsened the Veteran’s hypertension in the available STRs, as his blood pressure readings were always stable or on the lower end of normal. Additionally, there was no documentation as to when and how diabetes was diagnosed. As such, the clinician indicated that there is no way to indicate any influence his inactivity may have had on his diabetes to cause or contribute to his cardiovascular problems. The clinician noted that while it is true that inactivity over a prolonged period of time can adversely impact blood pressure, in the Veteran’s case, there is no competent medical evidence that his blood pressure was inadequately controlled or abnormal and would not have been the basis for impacting the Veteran’s cause of death. In January 2020, another VA psychologist reviewed the Veteran’s claims file and included recitation to the Veteran’s relevant medical history including the private and VA medical opinions. She opined that it is less likely than not that the Veteran’s service-connected mood disorder contributed substantially to the cause of the Veteran’s death, combined to cause death, or aided or lent assistance to the production of death. She indicated that the rationale was that the Veteran’s medical records indicate that his mental health condition was due to the Veteran’s physical symptoms and was not the cause. She noted the causes of death included on the death certificate and indicated that it would be quite a leap to say that the Veteran’s myocardial infarction, COPD, or hypertension were caused by mood symptoms. Rather, it was the Veteran’s difficulty breathing that was found to cause panic attacks and anxiety. She also acknowledged that it is common medical knowledge that a sedentary lifestyle with little to no physical exertion is shown to increase the risk for hypertension and exercise in all form along with a healthy diet and lifestyle choices are shown to improve blood pressure. As reflected above, the Veteran’s post-service treatment records reflect that the Veteran was first diagnosed with COPD in 2001 and he was diagnosed with congestive heart failure in 2002, both almost thirty years after the Veteran left service. The available post-service treatment reports do not include a diagnosis of hypertension during the Veteran’s lifetime. There is no evidence of any heart or lung conditions during the Veteran’s service. As noted, hypertension did not manifest within one year of the Veteran’s separation from service. All such problems were first treated or diagnosed at least several decades following the Veteran’s separation from service. Notably, the fact that the post-service record does not document any such problems for many years after service is a factor that tends to weigh against an award of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, in this case, he claims file includes conflicting medical opinions on the question of whether a disability of service origin caused or contributed substantially or materially to cause his death. Notably, while the appellant has submitted a private medical opinion in support of her claim, as explained below, the Board finds that the most probative medical etiology opinion evidence is adverse to the claim. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). When reviewing medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The probative value of a medical opinion comes from its reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The “factually accurate, fully articulated, sound reasoning for the conclusion” contributes probative value to a medical opinion. Id. Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). In this case, in the October 2018, August 2019, and January 2020 opinions, the VA clinicians provided clear opinions as to why the Veteran’s service-connected disabilities were not the principal or contributory cause of death with supporting rationales. Several different VA clinicians cited published medical literature to support the opinions, after a thorough review of the claims file and consideration of the appellant’s and her son’s contentions, and the private physician’s opinion. All of the VA opinion providers concluded that a disability of service origin was not the principal or contributory cause of death. The clinicians offered cogent opinions supported by detailed rationales which fully explained the bases for the pinions, with citation to relevant medical literature along with reference to the Veteran’s own medical history. The Board acknowledges the findings of the October 2018 VA clinician and the January 2020 VA mental health examiners who noted that physical inactivity increased the risk for hypertension and exercising is an effective means of lowering blood pressure. However, as noted by the January 2020 clinician, in the Veteran’s case, there is no competent medical evidence that his blood pressure was inadequately controlled or abnormal and would not have been the basis for impacting the Veteran’s cause of death. As such, the Board accepts the VA opinions—particularly, those of the January 2020 opinion providers—as probative of the medical nexus question. See Nieves-Rodriguez, supra; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). By contrast, Dr. Bash’s opinion is accorded less probative weight. Although the private physician opined that the Veteran’s service-connected disabilities, particularly his lumbar degenerative disc disease and radiculopathy of the right lower extremity, deconditioned the Veteran and hastened his death, the physician did not actually indicate that the Veteran’s service-connected disabilities were the principal or contributory cause of death. Notably, for a disability to have substantially or materially contributed to death, it is not enough to show that it causally shared in producing death, but it must be shown that there was a causal connection. See 38 C.F.R.§ 3.312(c); see also Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Significantly, moreover, Dr. Bash did not actually relate any service-connected disability to any fatal condition resulting in the Veteran’s death identified on his death certificate, and, as noted by the VA opinion providers in this case—the January 2020 opinion providers, in particular—there is no actual evidentiary support in the Veteran’s medical records for a conclusion that any the Veteran’s service-connected disabilities or other disability of service origin caused or contributed substantially or materially to cause his death. Thus, the most persuasive medical opinion evidence of record on the medical nexus questions weigh against the claim. In addition to the medical opinion evidence of record, discussed above, the Board also has considered the lay assertions of record, but finds that they do not provide persuasive support for the claim. As a lay person, the appellant and her son are each certainly competent to report matters within his or her own personal knowledge, such as his or her own observations, and relating the Veteran’s medical history. . See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the matter of whether any post-service disorder resulting in the Veteran’s death is medically related to his active military service or any service-connected disability(ie)s is a complex medical question that is beyond the realm of a lay person, and neither the appellant nor her son is shown to have the medical training and expertise to opine on such a matter. See Jandreau, 492 F.3d at 1377 n.4; see also Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010). As the lay assertions in this regard are not competent, and, hence, not probative, the appellant and her son can neither support the claim, nor counter the probative medical conclusions of the VA clinicians, based on their own lay assertions. For all the foregoing reasons, the claim for service connection for the cause of the Veteran’s death must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.