Citation Nr: 0600397 Decision Date: 01/06/06 Archive Date: 01/19/06 DOCKET NO. 03-28 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 3. Entitlement to Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran had active service range of motion March 1942 to June 1943. He died on March [redacted], 2002. The appellant is his widow. The appeal comes before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, denying the appellant's claim of entitlement to service connection for the cause of the veteran's death, and to Dependents' Education Assistance. The Board in March 2005 remanded the case for necessary development. It now returns for review. The appellant was afforded an RO hearing to address her claim in December 2003, and a transcript of that hearing is contained in the claims folder. In October 2004, the appellant withdrew her request for a Board hearing. 38 C.F.R. § 20.702(e) (2005). FINDINGS OF FACT 1. The death certificate indicates that the veteran died in March 2002, and lists his immediate cause of death as cerebrovascular disease. The Certificate of Death notes that significant conditions contributing to the veteran's death were diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome. 2. During the veteran's lifetime, service connection was established only for schizophrenic reaction. 3. The veteran's service-connected schizophrenic reaction or treatment for that disorder did not caused or contribute to the cause of death. 4. The cause of death and conditions contributing to the cause of death were not causally related to the veteran's service-connected schizophrenic reaction. 5. The veteran's cerebrovascular disease, diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome, and any causally associated diseases or disorders, were not present during service and did not manifest to a compensable degree within one year from the date of the veteran's separation from service, and there is no medical evidence that otherwise establishes that these disease were incurred in service. 6. No claim for VA benefits was pending at the time of the veteran's death. 7. The statutory criteria for eligibility for educational assistance have not been met. CONCLUSIONS OF LAW 1. A disorder causing or contributing to the veteran's death, including cerebrovascular disease, diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome, was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2005). 2. The statutory requirements for Survivors' and Dependents' Educational Assistance benefits under Chapter 35, Title 38, United States Code have not been met. 38 U.S.C.A. §§ 3500, 3501(a)(1) (West 2002); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) Under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), VA has an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See also, 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2004). The law requires VA to inform claimants of the evidence needed to substantiate their claims, what specific evidence they are responsible for obtaining, and what specific evidence VA will undertake to obtain. 38 U.S.C.A. § 5103(a). VA regulations also specify that VA will notify claimants to submit relevant evidence in their possession. 38 C.F.R. § 3.159(b). VA has fulfilled these requirements in this case. The appellant has been informed of the information and evidence necessary to substantiate her claim by a rating decision in January 2003, and by a statement of the case in July 2003 and supplements thereto in March 2004, August 2005, and September 2005. She was specifically advised of the notice and duty to assist provisions of the VCAA in an August 2002 VCAA letter. By this letter, the appellant was informed of information and evidence that she should submit in furtherance of her claim, and was informed of the assistance VA would provide in obtaining that evidence. She was also requested to submit any pertinent evidence in her possession. By the above-noted RO decisions and statement of the case and supplements thereto, the appellant was informed of development already undertaken, as well as evidence of record pertinent to her claim on appeal. Recent VA and private treatment including the veteran's terminal hospitalization report, as well as the veteran's death certificate, are associated with the claims folder. VA medical opinions, addressing the questions of the cause of death, have been obtained and associated with the claims folder. The opinions also addressed the opinions provided by a private physician, Craig Bash, M.D., also address questions of the cause of the veteran's death including as related to service-connected disability. The VA examiner pointed out that some records of private treating physician Dr. Bernacki had not been obtained and associated with the claims folder. However, the RO, with the appellant's authorization, had requested those records, and had subsequently in November 2002 written the appellant informing her that those records were not obtained, and requesting her assistance in obtaining those records. The Board notes in this regard that "[T]he duty to assist is not always a one-way street. If [an appellant] wishes help, [she] cannot passively wait for it in those circumstances where [she] may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA's duty in assisting the appellant to obtain those private medical records has been fulfilled. The appellant was afforded the opportunity of hearings to address her appeal, and she did testify at a hearing before an RO hearing officer in December 2003, a transcript of which is contained in the claims folder. In view of the foregoing, the action taken by the RO complies with all of the requirements of law, thereby allowing the Board to consider the issue on appeal. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board remanded the case in March 2005 for additional development including for the VA examiner to address medical opinions provided by Dr. Bash. That development was completed, and the RO thereafter appropriately issued supplemental statements of the case, as noted above. Development requested in that remand has been completed to the extent required. See Stegall v. West, 11 Vet. App. 268 (1998). The Court has recently held that the notice requirements in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) must be provided to a claimant prior to initial RO adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this instance, while the veteran was not afforded such notice prior to the initial RO adjudication in July 2002 of the appealed claim of entitlement to service connection for the cause of death, that error was not prejudicial to the veteran's claim in this instance since, as discussed above, he was given ample notice and opportunity to remedy deficiencies in his claim. Id. VCAA notice was afforded prior to the January 2003 initial RO adjudication of the Survivors' and Dependents' Education Assistance claim. Nonetheless, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) remain applicable, including provisions pertaining to when notice is issued. In this instance, however, the Board finds that the appellant was provided the necessary notice and assistance required, as discussed above, since she was given ample notice and opportunity to remedy deficiencies in her claim. The Court has recently held, in that regard, that an error is not prejudicial when the error did not affect "the essential fairness of the [adjudication]." Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. April 14, 2005). Assuming, arguendo, that VA did fail to fulfill any duty to notify and assist the claimant, the Board finds any such error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, because there is not a scintilla of evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. While perfection is an aspiration, the failure to achieve it in the administrative process, as elsewhere in life, does not, absent injury, require a repeat performance. Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Service Connection for the Cause of the Veteran's Death Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for the cause of a veteran's death may be granted when a disability incurred in or aggravated by service either caused or contributed substantially or materially to the veteran's death. For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause of death, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A death certificate informs that the veteran died on March [redacted], 2002, at Shadyside Hospital, in Pittsburgh, Pennsylvania. The death certificate listed the immediate cause of death as cerebrovascular disease, and listed no underlying causes of death. However, conditions listed as significant conditions contributing to death were diabetes mellitus, coronary artery disease, hypertension, and antiphospholipid syndrome. The death certificate lists no other causes of death or conditions contributing to death. An autopsy was not performed, and the case was not referred to a medical examiner or coroner. At the time of the veteran's death, he was service-connected for schizophrenic reaction, rated 70 percent disabling. The appellant contends that lithium treatment for the veteran's service-connected schizophrenic reaction caused or contributed to the cause of the veteran's death, as a result of lithium toxicity. To support her contention, she submitted two letters by Craig N. Bash, M.D., a private physician. In these letters, Dr. Bash presented medical opinions supportive of her claim. In the first of these letters, in March 2005, the substance of his arguments, to the extent that they are relevant to the claim, were that the veteran, in his compromised health, suffered from toxic effects of elevated lithium levels as a result of treatment for his service-connected schizophrenic reaction, and this lithium toxicity resulted in reduced brain and cardiovascular function which ultimate caused or contributed to the veteran's death. In support of this opinion, Dr. Bash noted that the veteran was administered large doses of Valsartan, which, he contended, was a diuretic which would have increased the effect of the veteran's low sodium levels and thereby increased the effect of the lithium levels in the veteran, contributing to their toxic effect. Dr. Bash further argued that the veteran's initial presentation at his terminal hospitalization with symptoms of mental status changes, shaking, diaphoresis, slurred speech, dysphagia, difficulty forming words, as well as presenting with hypoglycemia, high lithium levels, low sodium levels, bradycardia, and arrhythmia, were all consistent with lithium toxicity. A VA examiner in a January 2003 report provided a medical opinion based on review of the claims folder and associated medical record. He addressed the causes of the veteran's death including as may be related to service-connected disability. The examiner noted the claimant's contention that lithium prescribed by VA as treatment for the veteran's service-connected psychiatric disorder caused or contributed to his death. However, the VA examiner noted that Shady Side Hospital lab work associated with the veteran's terminal hospitalization at that facility in March 2002, showed maximally borderline elevated lithium levels. These included a reading of 1.5 mEq/L on March 20, which was above the reference range of 0.6-1.2 used at the hospital, but was still within the reference range of 0.6-1.5 mEq/L used by Pittsburgh VA Health Care System. The VA examiner noted that following the discontinuance of lithium carbonate (LiCO3) administration during that hospitalization, readings from March 21 to March [redacted] were between 0.8 mEq/L and 1.4 mEq/L. The VA examiner further noted that mildly elevated lithium levels in the 1.5 to 2.5 mEq/L range were generally associated with mild symptoms including neuromuscular excitability, irregular course tremors, fascicular twitching, sluggishness, ataxia, nausea, vomiting, diarrhea, sinus bradycardia, and hypotension. The VA examiner further noted that the veteran had multiple medical problems which were more likely than lithium toxicity to have caused or contributed to the veteran's stroke, including renal insufficiency and coronary artery disease. The VA examiner also noted the inconsistent medical care pursued by the veteran, with poor coordination of treatment, and treatment sought from multiple sources including VA as well as a private internist and cardiologist. The VA examiner noted that the treatment records from Shadyside hospital do not list the veteran's lithium levels as a contributing cause of the veteran's terminal illnesses or of the veteran's death. While the VA examiner noted that the veteran was taking Valsartan, which may result in sodium depletion which in turn could result in increased lithium levels, the VA examiner emphasized that this did not appear to have been a problem in this case, as the veteran's recent chemistry results did not show significant renal compromise or significant loss of sodium so as to make lithium concentrations a concern. The VA examiner also noted that dehydration might result in elevated lithium levels, but then noted that dehydration was not found to be a medical problem in the veteran's case. In any event, the VA examiner emphasized that there was no indication of the veteran's mildly elevated lithium levels contributing to the cause of death. Another VA physician, reviewing the veteran's medical records, provided a letter in January 2003 specifically addressing the allegation that lithium toxicity caused or contributed to the veteran's death. That physician noted the presence of multiple disorders that may have caused or contributed to the veteran's assessed terminal stroke, including hypertension, renal insufficiency, and coronary artery disease. The physician also noted that the veteran had fragmental care as a result of his seeking some treatment from VA and some from a private internist and a private cardiologist, without his obtaining any coordination between these care sources. The physician observed that the veteran did not keep consistent VA mental health clinic visits, with more than a year having lapsed between his recent appointment and the last prior appointment. This letter made essentially the same points as the above-noted VA examiner's January 2003 report, regarding the absence of any indication of significant lithium toxicity, with lithium levels in the 1.5 to 2.5 mEq/L range generally being associated with mild symptoms, and lithium levels as recorded upon VA visits being within VA's therapeutic range of 0.6 to 1.5 mEq/L. The physician also noted that the veteran had been found to have circulating antiphospholipid antibodies and lupus anticoagulant, with these factors predisposing the veteran to thrombosis. The physician concluded that the veteran's overall medical status predisposed him to having a stroke, and that the ultimately terminal stroke was not caused by his somewhat elevated lithium level. A review of the March 2002 Shadyside Hospital terminal hospitalization records shows that indeed seven other disorders were listed prior to lithium toxicity: cardiovascular disease, brain stem stroke, hypertension, diabetes mellitus, coronary artery disease, antiphospholipid syndrome, and bipolar depression. While the veteran presented to the hospitalization with confusion and obtundation which generally persisted throughout the hospitalization, this was not attributed to lithium toxicity in the hospital records, and was also not associated with the veteran's service-connected schizophrenic reaction. Rather, signs of stroke were present, including one-sided non- reactiveness, non-use, and neglect; and reports of several recent mini-strokes were also noted. A treating diagnosis upon terminal hospital consultation on March 16, 2002, was severe bradycardia with possible sick sinus syndrome. That consulting physician suggested a possible need of dual chamber pacemakers. The physician noted that the veteran had to be watched "very, very closely" in light of his cardiovascular and cerebrovascular condition. Irregular/ unstable heart rhythms were present during the hospitalization of this elderly veteran, and the hospital consulted with the veteran's family making use of palliative and bioethics resources. It was the decision of the family to elect for no extraordinary measures, and to limit treatment to medical measures, not including pressor or antiarrhythmics. Hence, the claimant was a party to or aware of private medical care end-of-life decisions involving no use of extraordinary measures to control arrhythmia, which were unrelated to service or service-connected disability, and which may have caused or contributed to the cause of the veteran's death. On the March 16, 2002 consultation report, a lithium level was recorded of 1.9 mEq/L. Assessments then also included coronary artery disease with previous coronary artery bypass graft in December 1999; cerebrovascular accident and history of transient ischemic attacks; change in mental status and obtundation, most likely a metabolic process - rule out sepsis or cerebral infarction; diabetes mellitus; hypoglycemia (a blood sugar level of 40 was recorded upon his being taken to the hospital); left bundle branch block; cardiomyopathy with left ventricular ejection fraction of approximately 40%; bipolar disorder; moderate carotid stenosis; aortic valve sclerosis; mild chronic obstructive pulmonary disease; and mild anemia. Further evaluation and testing in the course of the hospitalization resulted in a finding of antiphospholipid antibody syndrome. The veteran initially presented to the terminal hospitalization with marked sinus bradycardia, but a rhythm shift to a normal sinus rhythm was recorded by echocardiogram (ECG) on March 19, though lateral ST-T abnormalities were then present and possibly ischemic. A cardiac doppler flow study showed a dilated left ventricle with concentric hypertrophy and a low normal ejection fraction of 53%; a calcified aortic valve indicative of heavy sclerosis without stenosis; pulmonary hypertension; mild mitral and tricuspid regurgitation; lipomatous infiltration of the inter-atrial septum; and mitral annular calcification. Head and brain CT's were performed but did not reveal acute cerebral infarct or hemorrhage, tough an old lacunar infarct of the right basal ganglia was observed. An electroencephalogram (EEG) showed an abnormality of diffuse slowing consistent with encephalopathy of a variety of etiologies. As the VA examiner explained in his May 2005 addendum report, again based on review of the claims folder, the medical opinion letter of Dr. Bash was filled with errors, misinformation, and inaccuracies. Among these: Dr. Bash's contention that Valsartan was a diuretic, whereas in fact it is an angiotension II type I receptor antagonist approved for treatment of hypertension and for treatment of heart failure; Dr. Bash ignored relevant medical facts, including the presence of poorly controlled hypertension and at times elevated glucose levels during the terminal hospitalization, the veteran's history of four mini-strokes over the prior year, the veteran's presenting symptoms at the terminal hospitalization consistent with transient ischemic attack stroke and not consistent with lithium toxicity, the cessation of lithium treatment during the terminal hospitalization, and the absence of any findings of toxic effects of lithium in any of the medical treatment records. "An opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 5 VET. APP. 458, 461 (1993). Hence, based on the clear and reasoned statements of the VA examiner and the supporting medical record, the Board agrees that Dr. Bash's opinions were based on inaccurate factual premises. Hence, the Board must afford no probative value to the medical opinions of Dr. Bash. The Board notes that Dr. Bash perpetuated these errors, misinformation, and inaccuracies as bases for his September 2005 supplemental statement, and hence that further statement also cannot be afforded any probative value. In that September 2005 supplemental statement, Dr. Bash made much of the fact that the veteran had a CT scan that was negative four days prior to his death, and contended that this was inconsistent with the veteran dying of a stroke. On that basis, he argued again that lithium toxicity contributed to his death. However, this additional argument does not change the facts upon which Dr. Bash relied for his opinion that lithium toxicity caused or contributed to death. Because those facts were inaccurate, Dr. Bash's earlier opinion that lithium toxicity caused or contributed to the cause of death can still be afforded no probative value. Reonal. Regarding Dr. Bash's latter opinion that a stroke did not kill the veteran, the Board notes that Dr. Bash presented no medical basis for his opinion that a CT-scan four days prior was preclusive of the occurrence of a subsequent stroke. Hence, without further evidence, that opinion is of little probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999). In any event, that further opinion does not further the claim, since it establishes no causal association between the veteran's period of service or service-connected schizophrenic reaction, and the cause of his death. Dr. Bash, in the September 2005 statement, also argue that the negative head CT scan was "totally compatible with lithium toxicity as a major contributor to his demise [....]" This argument amounts to a negative inference. A negative head CT scan is undoubtedly also compatible with any myriad other conditions which would not show up on a head CT scan. That fact does not in itself support any causal link between elevated lithium levels and the cause of the veteran's death. Hence, it does not support the claim. As the VA examiner noted in the May 2005 addendum statement, all VA readings taken of the veteran's lithium levels showed them to be within normal limits, and readings taken initially at his Shady Side terminal hospitalization showed them to be only mildly elevated, but still within the norm by VA standards. The Board notes that the appellant herself has made various assertions concerning a causal relationship between treatment including with lithium for the veteran's schizophrenic reaction, and the cause of the veteran's death. However, as a layperson, she is not qualified to render an opinion concerning questions of medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, in the absence of cognizable (medical) evidence of a causal link between the veteran's period of service, his service-connected schizophrenic reaction, or any treatment for that schizophrenic reaction, and the cause of the veteran's death or any condition significantly contributing to death, and in view of medical evidence showing multiple medical disorders not shown to be related to service or a service-connected disorder causing or contributing to the cause of death, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the veteran's death. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.312. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Survivors' and Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 Educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C.A. §§ 3500, 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3020, 21.3021. In this case, the Board determined that the veteran did not die of a service-connected disability. The record also reflects that the veteran did not have a disability evaluated as total and permanent in nature resulting from a service- connected disability at the time of his death. Accordingly, the claimant cannot be considered an "eligible person" entitled to receive educational benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3021. At the time of the veteran's death, he was service-connected for schizophrenic reaction, with a rating of 70 percent assigned since February 1980. He had claimed entitlement to a total disability rating based on unemployability (TDIU) due to this service-connected disability, but that claim was denied in May 2000, the veteran did not appeal the decision, and hence the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). The medical record does not reflect that the veteran was unemployable The veteran was discharged from the Navy on a medical basis with the diagnosis of dementia precox. He was granted service connection for the disorder by a September 1944 rating action assigning a 100 percent disability rating beginning June 28, 1943, reduced to 50 percent effective August 26, 1944, based on resumed competence. By a June 1945 rating action, the rating assigned was reduced to 10 percent effect from August 12, 1945. A September 1949 rating action confirmed the 10 percent evaluation then assigned. In a rating action in 1958, the veteran had been rated 100 percent disabling for his schizophrenic reaction for a period from November 8, 1955 to June 30, 1958, with a reduction to 70 percent from July 1, 1958. The record reflects that the veteran was hospitalized at VA again for his schizophrenic reaction from December 12, 1979 through January 9, 1980, and he was again assigned a 100 percent evaluation for that period of hospitalization, effective through January 31, 1980. The 70 percent evaluation was re-assigned effective from February 1, 1980. The record reflects that the veteran had productive employment following these hospitalizations, and at no time between February 1980 and his death was he found to be completely disabled or unemployable due to his service-connected schizophrenic reaction. Hence, the claim of entitlement to DEA benefits does not have the requisite supporting service connection for the cause of the veteran's death, or have supporting service-connected disability that was total and permanently disabling at the time of death, and the veteran was not unemployable due to service-connected disability at the time of death. As such, the claimant does not meet eligibility criteria for those benefits. 38 U.S.C.A. § 3501(a)(1); 38 C.F.R. §§ 3.807, 21.3021. The preponderance of the evidence is thus against the claim, and, accordingly, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement of service connection for the cause of the veteran's death is denied. Entitlement to Survivors' and Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is denied. ____________________________________________ LAWRENCE M. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs