Citation Nr: 0738223 Decision Date: 12/05/07 Archive Date: 12/13/07 DOCKET NO. 06-07 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESSES AT HEARING ON APPEAL Appellant and C.K., M.D. ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The veteran had active military service from March 1981 to April 1982. He died in November 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for the cause of the veteran's death and denied entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C.A. Chapter 35. FINDINGS OF FACT 1. The veteran died in November 2003. The death certificate lists the immediate cause of death as cardiac hypertrophy of uncertain etiology. A February 2004 autopsy report indicated that the cause of death was cardiac arrhythmia due to acute cardiac ischemia with pulmonary edema due to cardiac hypertrophy of uncertain etiology. 2. During the veteran's lifetime, service connection was established for schizophrenia (rated 50 percent); and residuals of a fracture of the left tibia and fibula (rated noncompensable); the combined rating was 50 percent. 3. The veteran was not diagnosed with hypertension in service or within one year of his discharge, and cardiac hypertrophy was not caused or aggravated by a service- connected disability. 4. The most probative medical evidence shows that a service- connected disability was not a principal or contributory cause of the veteran's death. 5. The veteran was not in receipt of a permanent and total service-connected rating at the time of this death. CONCLUSIONS OF LAW 1. The cause of the veteran's death was not incurred in or aggravated by his active military service, may not be presumed to have been so incurred, and was not secondary to a service-connected disability. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310, 3.312 (2007). 2. The criteria for Dependents' Educational Assistance under 38 U.S.CA. Chapter 35 have not been met. 38 U.S.C.A. § 3501 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence she has in her possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); see also Hupp v. Nicholson, 21 Vet. App. 342 (2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In a March 2004 letter, issued prior to the decision on appeal, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate the claim for service connection for the cause of the veteran's death, as well as what information and evidence must be submitted by the appellant, what information and evidence will be obtained by VA, and the need to advise VA of or submit any further evidence she had in her possession that pertained to the claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records, post service treatment records, VA examination reports and a VA opinion, the veteran's death certificate and autopsy report, and the appellant's own statements. Additionally, the appellant and C.K., M.D., provided personal testimony at a videoconference hearing before the undersigned in November 2006. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. She was an active participant in the claims process and she responded to VA's requests for information. Her correspondence reflects her knowledge of the veteran's service connected disability, and she argued that the medication taken for that disorder caused his heart problems and his death. Moreover, she brought a psychiatrist to her hearing who provided testimony and opinion on the relationship between the veteran's service-connected psychiatric disorder and the heart problems that caused his death. Thus, the record demonstrates that the appellant had actual knowledge of what was needed to substantiate the claim, which cured any defect in the notice provided. See Sanders, supra. Thus, any error in the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Id. As such, there is no indication that there is any prejudice to the appellant in considering this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Moreover, as the Board concludes below that the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death and entitlement to DEA, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Cause of Death Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension or heart disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established for disability which is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal In terms of what is considered a "disability" under VA laws and regulations, 38 C.F.R. § 3.301(a) indicates that direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of abuse of alcohol or drugs. See also 38 C.F.R. § 3.301(c)(2 and 3). However, the United States Court of Appeals for the Federal Circuit has held that there can be service connection for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Federal Circuit further stated that compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." See Allen, 237 F. 3d at 1381. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). To establish service connection for the cause of a veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). During his lifetime, the veteran had established service connection for schizophrenia, rated 50 percent disabling; and residuals of a fracture of the left tibia and fibula, rated noncompensable. His combined rating was 50 percent. He died in November 2003. The death certificate listed the immediate cause of death as cardiac hypertrophy of uncertain etiology. An autopsy was performed. In the February 2004 autopsy report, the deputy chief medical examiner concluded that the veteran died as a result of a lethal cardiac arrhythmia due to acute cardiac ischemia with pulmonary edema due to cardiac hypertrophy of uncertain etiology. She noted: Common causes of cardiac hypertrophy include systemic hypertension, alcoholism and obesity. There was no documented history of elevated blood pressure but the [veteran] was obese and prescribed Antabuse (disulfiram) presumably for chronic alcoholism. There have also been case reports of sudden cardiac death and/or cardiomyopathy attributed to the use of certain psychotherapeutic medications including antidepressants (amitriptyline), antipsychotics (clozapine) and sedative hypnotics (zolpidem). The [veteran] was not currently prescribed any of these medications but it is no known whether he was prescribed these medications in the past. Furthermore, serious cardiovascular adverse effects (including hypertension, hypotension and heart failure) have been rarely or infrequently reported with the use of citalopram, quetiapine and bupropion. In a March 2006 VA opinion, a VA physician reviewed the veteran's claims file to provide an opinion as to whether the medication prescribed for the veteran's service-connected schizophrenia caused his death due to cardiac hypertrophy. After reviewing the file, he noted that the veteran's past medical history was significant for bipolar disorder, alcoholism and obesity; and that his psychiatric medications included: bupropion, citalopram, diazepam, lithium, and quetiapine. He also noted that the veteran took Antabuse for his alcoholism. Although he indicated that Antabuse has had some case reports resulting in sudden cardiac death and/or cardiomyopathy, based on the autopsy report, he concluded that it was less likely that the veteran's death was caused by his psychiatric medications. At her videoconference hearing before the undersigned Veterans Law Judge in November 2006, the appellant was accompanied by her father, C.K. M.D., who is a psychiatrist. The appellant testified that the veteran ate a low-fat diet and did not eat foods high in cholesterol. Dr. K. testified that the veteran first contacted him in 1989, when he was seeking a psychiatrist to treat him. He did an evaluation, but then referred him to the VA hospital in Manchester. However, the veteran returned to Boston. He returned to New Hampshire in 1998 and renewed contact with Dr. K. He recalled that the veteran would pass or drop into his office without an appointment once or twice a week just to talk about his problems. The veteran complained of his symptoms, including excessive weight gain, fatigue, sleeping excessively, frequent headaches, forgetfulness, and a lack of energy. He also reported infrequent chest pain. He indicated that he occasionally took the veteran's blood pressure and it was higher than average. Based on his experience as a psychiatrist, as well as the literature that he read, Dr. K. stated that their were side effects and/or adverse reactions to the psychotropic medications used to treat mental disorders. In addition, he noted that 30,000-50,000 people died each year from drug interactions. He indicated that the veteran took Lithium, Seroquel and Wellbutrin. Lithium could cause arrhythmia. Seroquel could cause tachycardia, palpitations, irregular pulses, normal branch block, cerebrovascular accident, shock, angina pectoris, fibrillation, atrial ventricular block, first degree congestive heart failure and pulmonary edema. Wellbutrin could cause hypotension or hypertension, tachycardia, syncope and stroke, arrhythmia and myocardial infarction. He opined that the Lithium, Seroquel and Wellbutrin caused hypertension, which caused the enlargement of the heart which in turn caused the acute cardiac ischemia with pulmonary edema. He stated that there could be underlying secondary medical conditions, but he was not treating the veteran and was not aware of any. He saw the veteran as a medically healthy person with no smoking and no drinking. The veteran's service treatment records do not show any treatment related to hypertension and/or a heart disability. The appellant essentially alleges that the medications that were used to treat the veteran's service-connected schizophrenia caused the heart problems that led to his untimely death. In weighing the opinions of record, the Board finds the VA opinion and the autopsy report to be more probative than the opinion provided by Dr. K. The VA opinion was based on a full review of the veteran's claims file and clinical reports. Additionally, the autopsy report was completed after a complete analysis and testing of the veteran after his death. See Winsett, Bloom, supra. The autopsy report stated that the veteran was not prescribed any of the medications that had been known to cause sudden cardiac death and/or cardiomyopathy, such as amitriptyline, clozapine, and zolpidem. Additionally, serious cardiovascular adverse effects had only been rarely or infrequently reported with the use of citalopram, quetiapine and bupropion. Finally, both of these physicians concluded that the veteran's fatal cardiac hypertrophy was of unknown etiology. In contrast, Dr. K.'s testimony s appeared to be more anecdotal in nature. He reported that he was not the veteran's treating psychiatrist, although he stated that he met him with some regularity even if informally. However, he did not have any clinical reports to support his assertion, including any documented reports that the veteran had hypertension. In fact, the autopsy report specifically stated that the veteran did not have any history of elevated blood pressure. Hence, it has not been shown that a service- connected disability caused or materially contributed to cause the veteran's death. Accordingly, the Board concludes that service connection for the cause of the veteran's death is not warranted. With regard to the veteran's prescribed Antabuse, which the VA examiner indicated was known to have had some case reports of individuals experiencing sudden cardiac death and/or cardiomyopathy, the Board notes that the veteran had not established service connection for his alcoholism on a secondary basis. (Service connection for this disability may not be granted on a direct basis. See 38 C.F.R. § 3.301). Moreover, neither the medical opinion nor the autopsy report concludes that the veteran's fatal heart problems were, in fact, caused by his use of Antabuse. In conclusion, although the Board is sympathetic to the appellant on the loss of her husband, and grateful for his service to this country, the preponderance of the medical evidence does not warrant a favorable decision for her claim. We have considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but the Board does not find the evidence is of such approximate balance as to warrant its application. Hence, the claim for service connection for the cause of the veteran's death is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dependents' Educational Assistance Dependents' Educational Assistance under Chapter 35 U.S.C.A may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran: (1) was discharged from service under conditions other than dishonorable or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or (if a serviceperson) (5) is on active duty as a member of the Armed Forces and now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. § 3.807. As noted previously, at the time of the veteran's death, he was in receipt of a 50 percent combined evaluation for his service-connected conditions. The veteran was not assigned a total and permanent disability rating for service-connected disability. Additionally, he died more than 20 years after his discharge from service and, as noted above, the evidence does not show that he died from a service-connected disability. Under these circumstances, the appellant does not meet the basic eligibility requirements for entitlement to Dependents' Educational Assistance under 38 U.S.C.A Chapter 35, and her claim, therefore, must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for the cause of the veteran's death is denied. Entitlement to Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs