Citation Nr: 1125878 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 07-16 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 The Appellant ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1944 to January 1946. He died in March 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a 2006 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned Veterans Law Judge at a Travel Board Hearing in April 2009. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran died in March 2006. The stated cause of death on his death certificate was bilateral pneumonia-mixed bacterial. 2. At the time of the Veteran's death, service connection was in effect for lumbosacral degenerative joint and disc disease, evaluated as 60 percent disabling; and for malaria which was rated as noncompensable. From January 18, 2001 and through the date of his death the Veteran was assigned a total disability evaluation based on individual unemployability. 3. Neither the Veteran's malaria, nor his degenerative joint and disc disease was a principal cause or a contributing cause to his death. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed by, an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 1312, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated in April 2006 of the information and evidence needed to substantiate and complete her claim. Although the RO did not provide notice regarding how VA decides effective dates, that error is harmless in light of the decision reached below. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that because the RO's adjudication of a claim for dependency and indemnity compensation benefits hinges first on whether a veteran was service-connected for any condition during his lifetime, the notice in such a claim must include, inter alia, a statement of the conditions (if any) for which a veteran was service-connected at the time of his death. Id. at 352-53. In this case, while the appellant was not notified of the conditions for which the Veteran was service connected in the April 2006 notice letter, she was provided with this information in the June 2006 rating decision and a supplemental statement of the case was issued thereafter in January 2009. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, including medical records, and providing an opportunity for a hearing. The evidence shows that any VA error in notifying or assisting the appellant does not reasonably affect the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Laws and Regulations Service connection for the cause of the veteran's death may be granted if a disability from a disease or an injury incurred in or aggravated by service either caused or contributed substantially or materially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability will be considered as the principal cause of death when the 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). 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, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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 C.F.R. § 3.312(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Cause of Death-Factual Background and Analysis After a thorough review of the record, the Board finds that the Veteran's service-connected disabilities did not cause or contribute substantially or materially to his death. The record shows that, in February 2006, the Veteran was admitted to Knox Community Hospital with a primary diagnosis of pneumonitis due to inhalation of food or vomitus. The Veteran was discharged two days later but was again admitted a few days thereafter when he became unresponsive. He was transported to the emergency department and found to be hypotensive. The Veteran died in the hospital on March, 4, 2006. The clinical impression was cardiogenic shock secondary to a myocardial infarction in a patient with chronic obstructive pulmonary disease, pneumoconiosis, a history of pacemaker placement, and senile dementia of the Alzheimer's type. The Veteran's death certificate stated that the immediate cause of death was bilateral pneumonia of a mixed bacterial type. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. The pertinent evidence includes the Veteran's service medical records which reveal no complaints, findings or diagnoses of a cardiac or lung disorder. In January 2001, a letter was submitted by Dr. D.S., stated that the Veteran had diabetes mellitus, chronic obstructive pulmonary disease, hypertension, degenerative arthritis, diverticulosis, dilated cardiomyopathy, atherosclerosis and declining vision and hearing. Dr. D.S. stated that sometimes these problems exacerbated the Veteran's service-connected back disability but at times his back disabilities interfered with his other problems. A March 2001 letter from Dr. R.W. stated that he was at that time giving the Veteran Celebrex for generalized arthritis and back pain. The evidence of record includes a September 2003 letter from Dr. L.W. which noted that the Veteran had hypertension, atherosclerotic heart disease and congestive heart failure. Dr. L.W. opined that the Veteran's congestive heart failure could have been worsened, but not caused by, the use on non-steroidal anti-inflammatory drugs. September 2003 correspondence from Dr. J.S. stated that he disagreed with Dr. L.W.'s findings as Dr. L.W. did not touch the Veteran in making his determination. A February 2005 letter from Dr. J.S. stated that there was a temporal relationship between the Veteran's use of Celebrex and Percocet and his elevated pressure, diastolic dysfunction and congestive heart failure. In a July 2005 statement Dr. J.S. stated that the Veteran had suffered from irreparable harm from Celebrex and Percocet. An autopsy was performed in March 2006. In the autopsy report, the pathologist provided pathological diagnoses which included sepsis, organizing pneumonia, hypertensive cardiovascular disease and atherosclerotic cardiovascular disease. Also included in the claims file is a June 2006 letter from Dr. J.S. which he noted that he was the sole medical physician for the Veteran up to the point of his death. Dr. J.S. stated that the Veteran's increasing debility and weight loss did not allow him to maintain himself and that, as he was bedridden and had a reducing immunity, the Veteran's developed several pneumonias on top of his advanced black lung disease. It was noted that the Veteran had had previous idiosyncratic drug reactions to hydrocodone which contributed greatly to debility and then to his bedridden existence for years with dilated cardiomyopathy. It was noted that the Veteran had taken Celebrex for years before Dr. J.S. treated him. Dr. J.S. opined that Celebrex caused dilated cardiomyopathy in the heart. In April 2009, the appellant testified before the undersigned Veterans Law Judge. During the hearing, the appellant stated that due to his service-connected arthritis, the Veteran became so debilitated towards the end of his life that she had to take care of all of his needs. She offered her belief that the medications given to him from the time of his injury to the day of his death destroyed his health which contributed to his pneumonia. She stated that the Veteran had been on Percocet, Oxycondone and Celebrex for arthritic pain. She further asserted that despite the fact that the death certificate listed pneumonia as his cause of death, contributory effects such as a heart condition contributed to his death and that his arthritis medications led to the Veteran's heart condition. In February 2011, the Board, finding that additional information was necessary before a determination on the claim could be made, requested an independent medical opinion from a specialist regarding the cause of the Veteran's death. The February 2011 request noted that the Veteran's service treatment records were negative as to any complaints of clinical findings of a cardiovascular disorder, and that the preponderance of the evidence reflected treatment for cardiovascular disease which began in the late 1990's. The independent medical examiner was informed that at the time of his death, the Veteran was service connected for only malaria and lumbosacral degenerative joint and disc disease. Further, the examiner was notified that in order to alleviate his back pain the Veteran used various medications primarily Percodan, Percocet and non-steroidal anti-inflammatories. From approximately December 2000 to April 2001, the Veteran took Celebrex. In March 2003 he was given another prescription for Celebrex with three refills. The independent medical examiner was presented with a number of questions from the Board. The independent medical examiner was directed to review the Veteran's claims file and determine whether it was at least as likely as not that heart disease caused or contributed substantially and materially to his death. If the examiner found this to be the case, he was to determine whether cardiovascular disease was caused or aggravated by the medications the Veteran used to treat his service-connected spine disorder. The independent medical examiner-who is a board certified cardiologist, an associate professor of medicine, and a director of a cardiovascular program at a heart institute-submitted his findings in April 2011. In his report, the examiner noted that he had reviewed the Veteran's eight volumes of records and he cited medical literature in support of his findings. He noted that records dating into the mid 1980s demonstrated back pain, and that the Veteran was treated with multiple non-steroid anti-inflammatories, Celebrex and narcotics. The examiner noted that the Veteran suffered from multiple comorbid conditions to include diabetes, residuals of a cerebrovascular accident, hypertension, chronic obstructive pulmonary disease, black lung, and Alzheimer's. The examiner noted that congestive heart failure is shown in the record as first appearing in 1999. The examiner noted that the Veteran was admitted to the hospital on February 24, 2006 for a urinary tract infection with sepsis and pneumonia. He was treated for two days, sent home and was brought back to the hospital having become unresponsive on February 27, 2006. The examiner stated that, upon admission, the Veteran's troponins (an enzyme found in the heart and muscle cells) rose and that his treating doctor, Dr. B.M., contributed the Veteran's clinical scenario to a myocardial infarction causing cadiogenic shock. The consulting cardiologist, Dr. R., was of the opinion that the Veteran's elevated troponin was caused by low blood pressure and low oxygen levels in the blood that resulted from sepsis. The independent medical examiner noted that this would result in poor oxygen delivery to the heart. The independent medical examiner noted that the Veteran's autopsy confirmed sepsis and bilateral organizing pneumonia. The autopsy also demonstrated only moderate atherosclerotic disease of the left anterior descending and circumflex arteries, and mild disease of the right coronary artery. The examiner stated that there was no thrombus noted to suggest an acute myocardial infarction, and the left ventricle was thickened, consistent with hypertensive changes of the heart. The independent medical examiner noted that there was no thinning or necrosis noted to suggest previous or recent myocardial infarction. Having considered the above, the examiner concluded that the Veteran died from an overwhelming pneumonia and sepsis which was an expected outcome in a patient with an infection so severe considering his age and multiple non-cardiovascular conditions. The examiner specifically concluded that the Veteran's cardiovascular disease did not likely cause or contribute significantly to his death. It is significant that there is no competent evidence to the contrary finding that cardiovascular disease caused or contributed substantially and materially to his death. The Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disorders caused or contributed substantially or materially to his death or combined to cause or aided or lent assistance to the production of his death. Initially, the principal cause of the Veteran's death is clearly demonstrated to be pneumonia as documented both on the death certificate and the first pathological diagnoses in the autopsy report. Thus, in order to establish cause of death in this case, the evidence must show that a service connected disorder was a contributory cause of death, which is to say that a service connected disorder contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). As the cause of death was clinically shown to be pneumonia, the appellant's claim for cause of death must be based on a showing that the Veteran's service connected arthritis or malaria was a contributory cause of death. Thus, it must be shown that these disorders contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. The appellant does not assert that the Veteran's service connected malaria was in any way related to his death. The evidence of record contains absolutely no suggestion whatsoever which would link the Veteran's in-service malaria to his death. Thus the Board concentrates on the question whether the Veteran's service-connected degenerative joint and disc disease in any way contributed to his death. As noted, the appellant asserts that medications the Veteran used to treat his arthritis and back pain contributed to his death. In support of the appellant's claim are the opinions of Dr. D.S. which stated that sometimes the Veteran's service back disabilities interfered with his other disabilities; the opinion of Dr. L.W. who stated that the Veteran's congestive heart failure could have been worsened, but not caused by, the use on non-steroidal anti-inflammatory drugs; and the opinion of Dr. J.S. who noted that medications to treat arthritis irreparably weakened the Veteran's condition and that there was a relationship between the Veteran's use Celebrex and Percocet and his elevated pressure, diastolic dysfunction and congestive heart failure. Further supporting the claim are the statements of the appellant herself. Weighing against the appellant's claim is the opinion of the independent medical examiner who, after reviewing the evidence of record in its totality, determined that the Veteran's death was not due to any cardiac disorder but was instead due to pneumonia. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this case, the Board favors the opinion of the independent medical examiner over those of the Veteran's private physicians. In so finding, the Board notes that the opinions of the private physicians primarily speak to the Veteran's use of medications for arthritis and their effects on the Veteran's heart. These opinions do not directly speak to whether the Veteran's heart disorder contributed to the Veteran's death. Thus, while a link between the Veteran's medications and his heart disorder is discussed, at no time is the use of medications and his death discussed. Further, the opinion of Dr. J.S., which gets closest to rendering an opinion on the issue, merely states that the Veteran's medications for his service-connected back disorder made him weaker and more susceptible to disease. At the very most, this opinion goes to show that the Veteran's degenerative joint and disc disease causally shared in producing death which is insufficient to establish a contributory cause of death. 38 C.F.R. § 3.312(c). Hence, Dr. J.S.'s opinion is insufficient to show a relationship between the Veteran's death and his use of arthritis and pain medication. In contrast, the independent medical examiner, a board-certified cardiologist, gave a detailed report of the evidence reviewed including the Veteran's service treatment records and claims file and succinctly stated his opinion that death was not due to or contributorily caused by a heart condition. The independent medical examiner addressed the pertinent evidence, cited medical references supporting his conclusion and discussed the medical reports created at the time of the Veteran's death at length. The Board finds that the opinions of the private physicians are not adequately supported to determine that a service connected disorder contributed to the Veteran's death. In contrast, the negative opinion of the independent medical examination considered all the evidence, and it provided a reasoned rationale which outweighs the other medical opinions mandating a finding against the appellant's claim for cause of death. The appellant's claims that her husband's death was caused by medication used for his service connected spine disorder. In this regard, the appellant is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). She cannot, however, speak to the question of etiology when such a question goes beyond a simple and immediately observable cause-and-effect relationship, and as such, she is not competent to render an opinion of etiology in this particular case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against entitlement to service connection for the cause of the Veteran's death. In so concluding, the Board in no way minimizes the Veteran's faithful service to the United States. The Board, however, is obligated to decide cases based on the law and the evidence, and not on equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the preponderance of the evidence is against the appellant's claim, entitlement to service connection for cause of the Veteran's death must be denied. ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs