Citation Nr: 0910441 Decision Date: 03/20/09 Archive Date: 03/26/09 DOCKET NO. 05-32 587A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from 1948 to 1952. The Veteran died in January 2000 and the appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that denied the appellant's claim of service connection for the cause of the Veteran's death. The appellant testified at a personal hearing before a Decision Review Officer (DRO) at the RO in September 2005. A transcript of her testimony is associated with the claims file. In February 2009, the appellant testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of her testimony is associated with the claims file. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during the Korean War, as evidenced by his receipt of the Combat Infantry Badge (CIB) and three Bronze Star Medals. 2. At the time of the Veteran's death, in January 2000, service connection was not in effect for any disabilities. 3. The Certificate of Death reveals that the immediate cause of the Veteran's death was pulmonary edema, due to, or a consequence of CHF (congestive heart failure), due to, or as a consequence of CAD (coronary artery disease), due to, or as a consequence of DM2 (Diabetes Mellitus, Type II). The Certificate of Death also listed CRF (chronic renal failure) and COPD (cardio obstructive pulmonary disease) as other significant conditions contributing to death, but not related to the underlying cause. 4. The private and VA medical evidence of record establishes that it is at least as likely as not that the Veteran developed post-traumatic stress disorder (PTSD) as a result of combat service in Korea; and, that such PTSD, as likely as not played a contributory role in producing, or at least accelerating, his untimely demise from pulmonary edema, congestive heart failure, coronary artery disease and Diabetes Mellitus, Type II. CONCLUSION OF LAW Resolving all doubt in the appellant's favor, the criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.310, 3.312 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Given the favorable nature of the Board's decision to grant the claim of entitlement service connection for the cause of the Veteran's death, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance II. Service Connection for the Cause of the Veteran's Death The appellant maintains that service-connection for the cause of the Veteran's death is warranted because she asserts that the Veteran's in-service combat exposure resulted in PTSD, which substantially contributed to the Veteran's death- causing illnesses. To establish service connection for the cause of the veteran's death, the evidence 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.A. § 1310; 38 C.F.R. § 3.312. A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death." 38 C.F.R. § 3.312(c). The Veteran's Certificate of Death indicates that he died in January 2000. The immediate cause of the Veteran's death was pulmonary edema, due to, or a consequence of CHF (congestive heart failure), due to, or as a consequence of CAD (coronary artery disease), due to, or as a consequence of DM2 (Diabetes Mellitus, Type II). CRF (chronic renal failure) and COPD (cardio obstructive pulmonary disease) were also listed as other significant conditions that contributed to death. At the time of the veteran's death, service connection was not in effect for any disabilities. However, the appellant maintains that the Veteran suffered from severe PTSD as a result of his combat experiences during service in Korea. At her personal hearing before a DRO at the RO in September 2005, the appellant testified that during the Veteran's lifetime, she witnessed him having trouble sleeping. She testified that he would never talk about the War, and distanced himself from any movies or conversations of War. The appellant further testified that the only thing the Veteran ever told her about his war-time experience was that at one point, he was behind enemy lines without food for ten days, when he came to a hut that had a bag of rice. Ever since that time, he was never able to eat rice again. The Veteran's step-son also testified at the DRO hearing in September 2005. He indicated that he was a clinical social worker, and served as the program coordinator for the returning combat veteran's in San Diego, at one of three sites noted for excellence in PTSD care. The step son also testified that he was well-educated on how to diagnose and treat PTSD, and opined that his step-father suffered from PTSD during his life. The step-son testified that he witnessed the Veteran often wake from sleeping with an exaggerated startle response, took "junk" jobs just so he could work the graveyard shift to avoid contact with others. Both the step-son and the appellant testified that the Veteran had difficulty sleeping, increased arousal, flat affect, angry outbursts, was indifferent to many things, acted stoic and cold toward others, was detached and estranged from many family members, was withdrawn, and had depression and anxiety. In support of her claim, the appellant submitted competent medical opinions from two doctors who treated the Veteran during his lifetime. Letters from Dr. Harris, received in March 2005, December 2006 and January 2007 essentially opine that the Veteran's death was related to unrecognized and undiagnosed PTSD that he suffered since service in Korea. Dr. Harris noted that the Veteran isolated himself from friends after the war; was detached from his family and the raising of his children; and suffered from insomnia and secondary irritability, all symptoms that support a diagnosis of PTSD based on DSM-IV criteria. Dr. Harris treated the Veteran from 1997 to 1999 for poorly-controlled insulin- dependent diabetes, congestive heart failure, bilateral below-the-knee amputations due to peripheral arterial disease, high blood pressure, chronic obstructive pulmonary disease, hyperlipidemia, osteoarthritis, nicotine dependence, diabetic foot ulcer/cellulitis, and a heart attack, among other conditions. Dr. Harris indicated, in particular, that the Veteran was diagnosed with depression at his intake visit because of symptoms of difficulty sleeping, fatigue, low energy, poor appetite, depression, anxiety, and irritability. Dr. Harris also indicated that the Veteran never reported his combat experiences during patient visits, and as such, Dr. Harris was unaware of the PTSD condition, but maintains that he would have explored it during the Veteran's lifetime if he had known there was a possibility of existence. Dr. Harris found that the Veteran's death-causing pulmonary edema, CHF, CAD, CRN, and COPD were, in large part, related to his neuropsychological condition, which in turn played a major role in causing the multiple conditions that lead to his eventual death. In so concluding, Dr. Harris opined that the Veteran's post-mortem diagnosis of PTSD significantly contributed to increased medical morbidity during the time he was alive and premature mortality. In another letter by Dr. Harris, he noted that the Veteran's war experience had a "major, negative impact on his quality of life from that time on...His PTSD and depression directly contributed to his poor physical and psychological health that lead to his death." Letters received from Dr. Troeh, in January 2005 and July 2007 note that it would seem plausible that the Veteran had PTSD, and perhaps, because of that he did not live a healthy lifestyle. In the July 2007 letter, Dr. Troeh explained that the Veteran died from complications of CHF, diabetes, and severe lung disease. Dr. Troeh also opined that, "It is certainly likely his PTSD led him to disregard his health status, which would contribute to his heavy smoking and his poor compliance with his chronic medical issues resulting in his poorly controlled diabetes, heart failure and severe lung disease, which eventually led to his death." Dr. Troeh continued, "Thus, while I would not say PTSD was the primary cause of his death; I think his PTSD certainly played a key part in the development of these medical issues." The appellant also submitted research materials with a letter from Dr. Boscarino of the New York Institute of Medicine, which essentially provides a direct link between PTSD and cardiovascular disease. This evidence did not specifically refer to the Veteran; but rather, explained the medical nexus between psychological stress and cardiovascular health. At her personal hearing before the undersigned in February 2009, the appellant reiterated her description of the Veteran's behavior during his lifetime, essentially testifying that the Veteran had difficulty sleeping, communicating with others, was often angry, did not like loud noises, had a flattened affect, etc. In light of the above opinions of Drs. Harris and Troeh, as well as the medical literature provided by Dr. Boscarino, the RO obtained a VA opinion to determine whether it was as likely as not that the Veteran suffered from PTSD during his lifetime. A VA doctor, in September 2007, reviewed all the available evidence of record and provided the following opinion: Piecing together the psychological evidence from the stepson's testimony and reports of the Veteran's two physicians, and assuming the validity of combat involvement, the Veteran appears to have had sufficient symptoms according to DSM- IV criteria to have justified a diagnosis of PTSD during his lifetime, had he been formally assessed psychologically. There was evidence of 're-experiencing stressors, avoidance of reminders, numbing of general and emotional responsiveness, and heightened arousal.' There were ongoing interpersonal and family difficulties, efforts to isolate from others, and irritability problems. Hypervigilance was described in adequate detail. Indeed on a quantitative basis DSM-IV criteria appear to be met and even succeeded for PTSD diagnosis based on the evidence reviewed above. Although there is rather minimal evidence of depression, this evidently was present but not specifically treated nor was any effort made to connect it to PTSD as such. The examiner noted that there was evidence that the Veteran engaged in combat during the Korean War. There was also evidence that the Veteran displayed enough symptoms during his lifetime to have qualified him for a diagnosis of PTSD, had he been examined for that condition. There is also evidence of some impairment in social function and at least some minimal impairment in industrial adaptability although evidence in that area is scarce. Taking into account this material, it is the considered opinion of the present examiner that it is at least as likely as not that the Veteran suffered from PTSD during his lifetime, although not diagnosed or treated for that condition during life. (The present examiner is a board certified psychiatrist who has had special training in and long experience in the diagnosis and treatment of psychiatric stress disorders including PTSD. He has well over 40 years of VA experience plus military experience and was the medical director of a major PTSD treatment program in a VA Center for a number of years.) With the rationale given in detail above, it is the considered opinion of the present, experienced examiner that it is at least as likely as not that the deceased veteran did suffer from PTSD arising out of his Korean War experience, during his lifetime. There is no competent medical opinion to the contrary, and there is no reason to doubt the credibility of the VA examiner, Dr. Harris, or Dr. Troeh, or the appellant. Moreover, the service treatment records in this case have been deemed unavailable due to a fire at the National Personnel Records Center in St. Louis. In cases where the veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to advise the appellant to obtain other forms evidence in support of the claim. In addition, there is a heightened duty to consider the benefit of the doubt rule in such cases. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The medical opinions of record are highly probative and, significantly, uncontroverted by any other evidence of record. In considering this matter on appeal the Board is required to base its decisions on independent medical evidence rather than rely upon its own unsubstantiated medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As the competent and probative evidence of record indicates establishes that it is at least as likely as not that the Veteran suffered from PTSD during his lifetime, which, as likely as not, played a contributory role in the development of CAD and other illnesses, all doubt is resolved in the appellant's favor, and service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs