Citation Nr: 0909611 Decision Date: 03/16/09 Archive Date: 03/26/09 DOCKET NO. 05-03 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1310. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1944 to November 1946. The Veteran died in December 2003. The appellant is the Veteran's surviving spouse. This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which denied the appellant's claim. In August 2007, the undersigned Veterans Law Judge requested an opinion from an Independent Medical Expert (IME). See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2008). That opinion was obtained and associated with the VA claims file. In January 2008, the undersigned requested that the physician who provided the IME opinion clarify his opinion. Accordingly, an addendum opinion dated February 2008 was obtained and associated with the VA claims file. As will be further discussed below, despite the February 2008 clarification, the IME opinion remained speculative to some extent. Therefore, in October 2008, another medical expert opinion was requested pursuant to Veterans Health Administration (VHA) Directive 2006-019 (April 3, 2006) and 38 C.F.R. § 20.901 (2008). That opinion was obtained and will be discussed in detail in the Analysis section below. FINDINGS OF FACT 1. The Veteran died in December 2003 at the age of 77. The death certificate listed the Veteran's cause of death as pneumonia, with contributing conditions of senile dementia and Parkinson's disease. 2. At the time of the Veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), evaluated as 100 percent disabling; scar of the right calf, evaluated as 30 percent disabling; and irritable bowel syndrome, assigned a noncompensable rating. 3. A medical opinion obtained by the Board provides sufficient medical nexus evidence to establish that the medications prescribed for the Veteran's service-connected PTSD aggravated his fatal dementia and Parkinson's disease and were thus a contributory cause of his death. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008). 2. The appellant's claim of entitlement to DIC benefits under 38 U.S.C.A. § 1318 is dismissed as moot. 38 U.S.C.A. § 1318 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant seeks entitlement to service connection for the cause of the Veteran's death as well as DIC benefits under 38 U.S.C.A. § 1318. In the interest of clarity, the Board will discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the appellant regarding her cause of death claim as well as her claim for DIC benefits under 38 U.S.C.A. § 1318 in March 2004. This letter appears to be adequate. The Board need not, however, discuss in detail the sufficiency of either the VCAA notice letter or VA's development of the claims in light of the fact that the Board is granting the cause of death claim. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. The Board also notes the appellant has not been provided notice regarding degree of disability and effective date as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As discussed in detail below, the Board is granting the appellant's claim. It is not the Board's responsibility to assign an effective date in the first instance. The Board is confident that, if required, the appellant will be afforded appropriate notice under Dingess. Additionally, the Board finds reasonable efforts have been made to assist the appellant in obtaining evidence necessary to substantiate her claim of entitlement to service connection for the cause of the Veteran's death, and that there is no reasonable possibility that further assistance would aid in substantiating it. The evidence of record includes the Veteran's death certificate, the appellant's statements, the Veteran's statements, service treatment records, and VA evaluation and treatment records. In addition, the following medical opinions were obtained during the course of the appeal: a VA medical opinion in April 2005, an IME opinion in September 2007, and a VHA expert opinion in November 2008. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2008). She has retained the services of a representative and declined the option to testify at a personal hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision as to the issues on appeal. 1. Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C. § 1310. Relevant law and regulations Cause of death In order to establish service connection for the cause of a veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2008). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. See 38 C.F.R. § 3.312(a) (2008). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b) (2008). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 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. See 38 C.F.R. § 3.312(c)(1) (2008); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. See 38 C.F.R. § 3.312(c)(2) (2008). However, service- connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of the death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. See 38 C.F.R. § 3.312(c)(3) (2008). The regulations also state that 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 affected a vital organ and was of itself of a progressive and debilitating nature. See 38 C.F.R. § 3.312(c)(4) (2008). Standard of review In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinksi, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual background As noted above, the Veteran served on active duty in the United States Army from September 1944 to November 1946. Service connection for PTSD was established by an August 1989 rating decision. In a March 1998 rating decision, the RO assigned a total [100 percent] evaluation, effective August 21, 1997. VA treatment records show that the Veteran was psychiatrically hospitalized from March 1988 to April 1988 due to major depression and PTSD. He was initially prescribed imipramine at that time. VA examination and treatment records show that from 1988 to 1996, the Veteran received continuous psychiatric treatment with imipramine and Xanax. In April 1996, sertaline was added to his psychiatric medication treatment, which was replaced in 1997 by paroxetine. The Veteran was psychiatrically hospitalized again in September 1997 due to another PTSD exacerbation. He was prescribed risperidone at that time. Subsequent outpatient treatment records showed that he continued taking risperidone, paroxetine, alprazolam, and Buspar. Following another psychiatric hospitalization due to a PTSD flare-up in June 1998, the Veteran received several doses of haloperidol. He was subsequently hospitalized five times from June 1998 to August 1998. His course of treatment included additional doses of haloperidol. At discharge, he was continued on Buspar, trazodone, and Xanax. A VA medical center hospital discharge summary dated August 1998 provides what appears to be the first medical diagnosis of record involving senile dementia/Alzheimer's disease in addition to PTSD. In February 1999, the Veteran was determined to be incompetent to handle his VA funds. VA treatment records dated June 2000 to August 2000 show that the Veteran was treated with Celexa and trazodone as well as benzodiazepines and alprazolam. A VA treatment record dated August 2003 indicated a diagnosis of Parkinson's disease. Beginning in June 2003, VA treatment records show that the Veteran was again treated with risperidone for his PTSD, to control his behaviors. The Veteran was placed in a continuing care facility. He continued to be cared for in a 24-hour facility or in a home- care facility with professional nursing assistance until his death. Medical records indicate that in December 2003, the Veteran was diagnosed with acute respiratory distress and end-stage Parkinson's disease. The Veteran died later in December 2003 at the age of 77. The Certificate of Death listed the causes of death as pneumonia, senile dementia, and Parkinson's disease. An April 2005 VA medical opinion indicated that the VA physician had reviewed the record in order to determine whether the Veteran's PTSD had contributed to his death. The VA physician's response was inconclusive. In August 2007, due to the complexities of the medical issues involved, the Board requested an IME opinion to address whether the Veteran's PTSD had caused or contributed to his death, pursuant to 38 C.F.R. § 20.901(d). The expert in psychiatry who provided the opinion determined: (1) that the Veteran's Parkinson's disease was not directly caused by the medications prescribed for his PTSD; (2) that the Veteran's dementia disorder was not caused by the medications prescribed to treat his PTSD; and (3) that the stress associated with the Veteran's World War II combat or his service-connected PTSD did not cause his Parkinson's disease or dementia. However, the examiner was unable to resolve one question posed by the Board: whether the Veteran's Parkinson's disease may have been aggravated by the medications that were used to treat his service-connected PTSD. Accordingly, pursuant to 38 C.F.R. § 20.901(a), the Board requested a VHA expert opinion from a neurologist to address the unresolved issue of whether the Veteran's Parkinson's disease may have been aggravated by the anti-psychotic medications used to treat the Veteran's service-connected PTSD. In response to the questions posed by the Board, the VHA reviewer concluded that "[w]ith reasonable certainty, in my professional opinion, Parkinson's disease in combination with Alzheimer's disease (or more correctly Lewy-body disease) appeared to be an important contributor in the death of this patient. . . With reasonable certainty, two of the medications used to treat his PTSD resulted in temporal worsening of his symptoms of Parkinson disease and Alzheimer dementia; most likely because the underlying undiagnosed condition of the Veteran was Lewy-body disease." The VHA expert further indicated that the two PTSD medications which resulted in the worsening of the symptoms were haloperidol and risperidone. "Patient first received Risperidone in September 1997. This resulted in worsening of his symptoms and a series of six psychiatric admissions in a period of two months beginning in June 1998 until August 1998. In addition to risperidone, he also received Haloperidol with clear worsening of the psychiatric symptoms, and occurrence of new symptoms such as visual hallucinations, agitation, akathysia, and Parkinsonian problems such as drooling, difficulty walking and talking. . . It is clear from the record that during the seven years when he received treatment for PTSD with imipramine and alprazolam - from age 64 to age 71 - the results of treatment provided certain reasonable results. When the new therapeutic agents were introduced (risperidone, haloperidol) this resulted in rapid deterioration of his psychiatric, cognitive, and neurological function, eventually resulting in his death at age 77 in final stages of Alzheimer's disease and Parkinson's disease." Analysis The appellant in essence contends that the medications prescribed for the Veteran's service-connected PTSD aggravated the senile dementia and Parkinson's disease, which contributed to his death. In order for service connection for the cause of the Veteran's death to be granted, three elements must be present: (1) evidence of death; (2) evidence of in-service incurrence of disease or injury and/or service-connected disability; and (3) medical nexus linking (1) and (2). Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). In this case, element (1) has obviously been met. The Veteran's death certificate dated December 2003 has been obtained and associated with the VA claims file. With respect to element (2), at the time of the Veteran's death, service connection was in effect for PTSD, evaluated as 100 percent disabling. Hickson element (2) is therefore met. [Service connection was also in effect for scar of the right calf and irritable bowel syndrome, but the appellant does not contend, and the record does not demonstrate, that those disabilities had anything to do with the Veteran's death]. With respect to crucial element (3), medical nexus, the Board finds that the medical evidence in this case demonstrates that a contributory relationship existed between the service- connected PTSD and the Veteran's death. Specifically, in the November 2008 VHA opinion, the reviewing neurologist concluded that "[w]ith reasonable certainty, two of the medications used to treat his PTSD resulted in temporal worsening of his symptoms of Parkinson disease and Alzheimer dementia; most likely because the underlying undiagnosed condition of the Veteran was Lewy-body disease . . . When the new therapeutic agents were introduced (risperidone, haloperidol) this resulted in rapid deterioration of his psychiatric, cognitive, and neurological function, eventually resulting in his death at age 77 in final stages of Alzheimer's disease and Parkinson's disease." Additionally, when asked to address the specific increments of increased severity of the Parkinson's disease that played a causal role in the Veteran's death, the VHA expert indicated that "[i]t is documented in the Veteran's records from the nursing facility . . . that he continued to be treated with [risperidone] for agitation. The record also documents a progressive worsening of Parkinson's symptoms with increase in difficulty walking, frequent falls, problems eating, drooling, problems taking medications, labored breathing and finally unresponsiveness and respiratory distress." The VHA medical expert opinion appears to have been based on a thorough review of the record, including the Veteran's comprehensive evaluation and treatment records, and a thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [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"]. Moreover, as indicated above, the VHA opinion is consistent with the Veteran's medical history, which showed a rapid progression of Parkinson's disease and dementia resulting in the Veteran's death from pneumonia in December 2003. Accordingly, the November 2008 VHA opinion demonstrably articulates a substantial causal connection between the medications prescribed to treat the Veteran's service- connected PTSD and his death. See 38 C.F.R. § 3.312(c)(1) (2008); see also Gabrielson, supra. Thus, the competent medical evidence of record indicates the service-connected PTSD [specifically, the medications prescribed therefor] had a contributory effect on the cause of the Veteran's death. Crucially, there is no medical evidence of record which contradicts the November 2008 VHA opinion. In sum, for the reasons and bases stated above, the Board concludes that the medical evidence is at least in equipoise as to whether the Veteran's death was causally related to his service-connected PTSD. Therefore, the appellant's claim of entitlement to service connection for the cause of the Veteran's death is granted. 2. Entitlement to DIC benefits under 38 U.S.C. § 1318. In essence, 38 U.S.C. § 1310 and 38 U.S.C. § 1318 provide separate and alternative methods of obtaining VA death benefits. See, in general, Green v. Brown, 10 Vet. App. 111, 114-5 (1997). Because the Board has granted service connection for the cause of the Veteran's death under the provisions of 38 U.S.C. § 1310, the matter of the appellant's alternative claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is rendered moot. Accordingly, the issue of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. Cf. Swan v. Derwinski, 1 Vet. App. 20, 22-23 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the cause of the Veteran's death under 38 U.S.C. § 1310 is granted. The appellant's claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is dismissed as moot. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs