Citation Nr: 1144048 Decision Date: 12/01/11 Archive Date: 12/14/11 DOCKET NO. 10-15 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the Veteran who served on active duty from February 1970 to February 1973. The Veteran died in January 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). The matter of entitlement to a waiver of recovery of an overpayment has been raised by the record (See appellant's February 2009 correspondence), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's death certificate shows that the immediate cause of his death was acute cerebellar hemorrhage due to arteriosclerotic vascular disease (ASVD) due to hypertension; type II diabetes mellitus and schizophrenia are listed as other significant conditions contributing to death but not resulting in the underlying cause of death; tobacco use was also noted to have contributed to his death. 2. The Veteran had established service connection for schizoaffective disorder, which was rated 100 percent, effective March 21, 2006; he was also awarded a total disability rating based on individual unemployability (TDIU). 3. Cerebellar hemorrhage, ASVD, and hypertension, were not manifested in service or in the first year following the Veteran's discharge from service; and are not shown to be related to his service or to have been caused or aggravated by his sole service-connected disability, schizoaffective disorder (to include medication prescribed therefore). 4. The Veteran's service-connected psychiatric disability (to include medication prescribed therefore) is not shown to have contributed substantially or materially to cause his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim prior to its initial adjudication. A March 2009 letter explained the evidence necessary to substantiate her claim in accordance with Hupp, the evidence VA was responsible for providing, and the evidence she was responsible for providing. It also informed the appellant of disability rating and effective date criteria. The appellant has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The record shows that the Veteran had been receiving Social Security Administration (SSA) disability benefits for schizophrenia since 1990. He had established service connection for schizoaffective disorder. The proposed theory of entitlement in this matter, and the focus of supporting evidence the appellant has submitted to date, is that medication prescribed for the schizophrenia (first prescribed in 2006) contributed to cause the Veteran's death. Accordingly, remote (pre-1990) medical records considered in the SSA determination granting the Veteran SSA disability benefits would not be pertinent to the matter before the Board, which requires a more recent temporal focus. The Board finds that there is no reasonable possibility that SSA records would be relevant to the claim on appeal and they need not be sought. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The RO secured March 2009 and March 2010 medical advisory opinions in this matter. The opinions are adequate as the consulting providers considered the entire record and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis To establish service connection for the cause of a Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability, either 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 service-connected disability will be considered a contributory cause of death when it combined to cause death, or 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. 38 C.F.R. § 3.312(c)(1). Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including hypertension, brain hemorrhage, and arteriosclerosis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for hypertension, brain hemorrhage, and arteriosclerosis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative 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. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran died in January 2009. His Death Certificate lists the causes of death as acute cerebellar hemorrhage due to ASVD due to hypertension; type II diabetes mellitus and schizophrenia are listed as other significant conditions contributing to death but not resulting in the underlying cause of death. At the time of the Veteran's death his only service-connected disability was schizoaffective disorder rated 100 percent. The Veteran's STRs (including the report of his November 1972 service separation examination) are silent for complaints, findings, treatment, or diagnosis relating to cerebellar hemorrhage, ASVD, and hypertension (or related complaints). October and November 2001 VA outpatient treatment records note that the Veteran's medical problems included hypertension, diabetes mellitus, graves diseases (hyperthyroidism) treated with thyroid replacement therapy, schizophrenia, and sleep apnea. Subsequent records in March 2002 note an additional diagnosis of obesity. An October 2002 VA outpatient treatment record notes that Loxapine was prescribed to treat the Veteran's schizoaffective disorder. A June 2006 VA neuropsychology consultation notes that the Veteran had been on anti-hypertensive medication for two years, that diabetes had been diagnosed 4 years prior, and that he had high cholesterol, and was obese. It was noted that he was switched to Abilify (for his schizophrenia) in January of 2006. A November 2008 private hospital discharge summary notes that the Veteran's prescribed medications included Abilify 20 mg daily. A January 2009 private hospital terminal care summary notes that the Veteran presented to the emergency room with chest pain. He had been a long time patient followed for diabetes and hypertension and was being followed by VA for schizophrenia (which was treated with second generation medications). A CT scan showed that he had an extensive cerebrovascular hemorrhage. He was placed on a respirator. Ultimately, he was removed from the respirator and expired. The final diagnoses were acute cerebellar hemorrhage, myocardial infarction, diabetes mellitus, chronic obstructive pulmonary disease (COPD), hypertension, and schizophrenia. A January 2009 VA outpatient treatment record notes that the appellant sought evidentiary support linking the Veteran's death to his service-connected mental illness. An addendum [by Dr. K] notes that "PCP is not able to change the death certificate." A response from another provider states that she informed the appellant that "there was no precedent regarding her request for a letter to link veteran's mental health condition as a cause of death." A January 2009 printout (submitted by the appellant) of a January 2006 article from the Journal of Psychiatric Practice notes that metabolic syndrome was highly prevalent in a sample of patients with schizophrenia and represented an enormous source of cardiovascular disease risk. February 2009 print-outs submitted by the appellant detail the risks of the prescription medication Abilify, including heart failure and stroke. A March 2009 letter from the Veteran's family physician, C.C.S., M.D. (who signed the Veteran's death certificate) notes that the Veteran's medical conditions included metabolic syndrome (consisting of obesity, hypertension, hyperlipidemia, and diabetes mellitus) which was a strong risk factor for myocardial infarction and cerebrovascular accidents, and that Abilify was known to pose additional risks for all of the conditions associated with metabolic syndrome. He opined that given the collection of risk factors he felt that the Veteran's use of Abilify contributed to his demise. In March 2009 the RO sought a VA medical advisory opinion in this matter. A consulting VA psychologist who reviewed the record opined that there was no known link (to his knowledge) between schizophrenia and acute cerebellar hemorrhage. He noted that research did show that schizophrenics could at times show brain abnormalities, which were structural, and did not result in acute medical difficulties. He also noted that schizophrenics also could show soft neurological signs such as poor coordination. He added that the Veteran suffered from several medical problems which were much higher risk factors for cerebrovascular difficulties including diabetes, hypertension, obesity, sleep apnea, and smoking. He opined that the Veteran's schizophrenia did not contribute substantially or materially to his death. In March 2010 a consulting VA physician noted that a review of the Veteran's claims file revealed that he had multiple medical problems, including type II diabetes since at least 2000 (and probably longer). In 2001 the Veteran was noted to be obese and to have poorly controlled diabetes; his schizophrenia was managed by Loxapine at that time. The provider also noted that Loxapine was not a medication that was associated with metabolic syndrome and that the Veteran's additional major medical problems included morbid obesity, hypertension, obstructive sleep apnea syndrome, severe pulmonary hypertension, and severe COPD. She also noted that he had a past medical history that included hepatitis C, alcohol and drug abuse (in remission), hypothyroidism, and schizophrenia, and that a review of the medical evidence showed that he was treated for a long time with Loxapine and was not switched to Abilify until January 21, 2006. The consulting physician noted that a review of the medication Abilify indicated that potential side effects included hyperglycemia, diabetes mellitus, and hypertension, but that the Veteran's obesity, hypertension, and diabetes mellitus all predated his use of Abilify by at least 6 years and possibly longer. She noted that the Veteran had multiple risk factors for the development of coronary and cerebral atherosclerosis including obesity, hypertension, diabetes mellitus, and sleep apnea, none of which was service-connected. She went on to state that she believed that the Veteran's death certificate was completed in error. She opined that the Veteran's medication Abilify which was used to treat service-connected schizophrenia did not contribute significantly to his cause of death. A cerebellar hemorrhage, hypertension, or AVDS were not manifested in service or in the first post-service year. [It is neither shown by the record, nor alleged, that any of these disabilities are somehow otherwise related to the Veteran's service.] Accordingly, service connection for the cause of the Veteran's death on the basis that a primary death-causing disability was service connected as incurred or aggravated in service (or on a presumptive basis as a chronic disease under 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309) is not warranted. The appellant's theory of entitlement is essentially one of secondary service connection. She alleges that a medication prescribed in treatment for the Veteran's service-connected schizophrenia caused or aggravated the disabilities which were the primary and contributory causes of the Veteran's death. There is both evidence in the record that supports the appellant's claim and evidence that is against the claim. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or rejects as non-persuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In March 2009 the Veteran's family physician, C.C.S., M.D. opined that given the collection of risk factors he felt that Abilify contributed to the Veteran's demise. The opinion is by a medical professional competent to provide it and is probative evidence in the matter. However, the Board finds it to be of less than persuasive probative value in that it does not include any detailed explanation of rationale as to the connection between the Veteran's non-service-connected disabilities and Abilify. While it notes that the medication posed increased risks for disabilities the Veteran had, which in turn posed increased risks for the primary cause of his death, it does not address that the death-causing disabilities predated his use of Abilify. In other words, the medical evidence of record does not support the causal chain outlined in his conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Miller v. West, 11 Vet. App. 345, 348 (1998); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); See Bloom v. West, 12 Vet. App. 185, 187 (1999). In March 2010 a VA physician opined that the Veteran's use of Abilify to treat his service-connected schizophrenia did not contribute significantly to his cause of death, and that the listing of schizophrenia on the death certificate was in error. Her explanation conceded the risk factors of Abilify (facts that are not in dispute), but noted that the Veteran's death-causing/contributory disabilities all predated his use of Abilify by at least 6 years (and possibly longer). As the opinion is by a medical professional competent to provide it, and explains the underlying rationale (citing to medical evidence), it is probative evidence in this matter. While the opinion agrees that Abilify can pose risks for disabilities which in turn are risk factors for cerebral atherosclerosis, it also notes that this alleged theory of causation is contradicted by the Veteran's medical history which shows that the disabilities in question predated his switch to Abilify. The Board finds this opinion to be more probative than that of Dr. C.C.S. in that it was based on a complete review of the Veteran's medical history and the evidence of record, details the Veterans entire medical history, and cites to specific medical evidence for support, rather than providing a generalized conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The mere listing of schizophrenia on the Veteran's death certificate as a contributing cause does not establish that was indeed the case. By itself, such listing is a conclusory statement without an explanation of rationale. What is required further to substantiate the appellant's claim based on a finding that the service-connected schizoaffective disorder contributed to cause death is an explanation of rationale as to why or in what manner the service-connected psychiatric disability was a material factor in the Veteran's death. In March 2009 a VA provider opined that there was no known link between schizophrenia and acute cerebellar hemorrhage. The consulting provider noted that the Veteran suffered from several medical problems which were much higher risk factors for cerebrovascular difficulties including diabetes, hypertension, obesity, sleep apnea, and smoking. He opined that the Veteran's schizophrenia did not contribute substantially or materially to his death. As the opinion is by a medical professional, and explains the underlying rationale, it is probative evidence in this matter. As there is no medical evidence to the contrary (regarding a nexus between the Veteran's schizoaffective disorder -itself rather than medication for the disorder- and his death); it is persuasive. The Board notes the appellant's own lay statements to the effect that the Veteran's schizoaffective disorder and use of Abilify contributed to his death. However, the cause of the Veteran's death in this instance is a complex medical question that is not capable of resolution through lay observation; it requires medical expertise, assessment of the various risk factors in the death causing event (cerebellar hemorrhage) and of the impact of medication for schizophrenia as a risk factor. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The appellant is not shown to have the requisite expertise to offer an opinion as to a nexus between a psychiatric disability or medication prescribed therefore and a death where the undisputed primary cause is an acute cerebellar hemorrhage. Whether a medication caused insidious side-effects which contributed to death is something beyond the scope of lay observation. In these matters, the medical evidence of record is more probative due to the knowledge, expertise, skill, and training of the consulting medical professionals. In light of the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim. Therefore, the benefit of the doubt rule does not apply; the claim must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs