Citation Nr: 1309769 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-20 690A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California 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 M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to October 1972. He died in July 2005, and the appellant claims as his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The jurisdiction over the case was subsequently transferred to the RO in Oakland, California. The Board remanded the claim for additional development in August 2008, April 2009, and January 2012. The appellant provided testimony at a January 2009 Board hearing. However, the individual who conducted the hearing is no longer employed by the Board. The appellant was informed of her right to a new hearing in a November 2011 letter. However, the appellant responded that she did not want a new hearing and to consider her case on the evidence of record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. At the time of his death, the Veteran was in receipt of service connection for second and third degree burns of the left leg, rated 40 percent disabling; burn contracture left upper extremity, rated 20 percent disabling; second and third degree burns of the right leg, rated 10 percent disabling; second and third degree burns of the back, rated 10 percent disabling; second and third degree burns of the right arm, rated 10 percent disabling; and posttraumatic stress disorder (PTSD) with depression associated with second and third degree burns of the left leg, rated 30 percent disabling. 2. The Veteran died in July 2005. The immediate cause of death was sepsis. Fulminant hepatitis-unspecified was an underlying cause of death. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the cause of death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran 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, 3.326(a) (2012). Under the VCAA, there is a general duty to assist in a death case under the provisions of 38 U.S.C.A. § 5103A(a). Such provision excuses VA from reasonable efforts to provide such assistance when no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a). In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). In this case, the RO notified the appellant of the evidence needed to substantiate her claim for service connection for the cause of the Veteran's death in October 2005 and January 2012 letters. The letters explained how to establish entitlement to DIC benefits based on a service-connected disability established during the Veteran's lifetime. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that she would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). An October 2007 letter also provided notice on the rating and effective date elements, pursuant to Dingess/Hartman. Furthermore, as regards to the timing of the notice, the claim was readjudicated in a February 2012 supplemental statement of the case (SSOC), thereby curing any timing deficiency. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's service treatment records and all of the identified and available post-service private and VA medical records. The Board additionally finds that the development required by the Board's January 2012 remand has been substantially completed. This consisted of providing the appellant with VCAA notice for a DIC claim and a VA medical opinion. The VA medical opinion was obtained in February 2012 and the appellant submitted private medical opinions. For the reasons explained further below, the Board finds that the February 2012 VA medical opinion is adequate to make a decision on this claim. In addition, the appellant presented testimony at a Board hearing in January 2009. During the hearing, the Veterans Law Judge clarified the issue, indentified a potential evidentiary defect, and suggested the need for an additional medical opinion. The actions of the Veterans Law Judge supplement VCAA and comply with 38 C.F.R. § 3.103 (2012). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits. Merits of the Claim To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312. For a service connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service connected disability to constitute a contributory cause, it is not sufficient to show that it causally shared in producing death, but it must be shown that there was a causal connection. Id. The Veteran's death certificate shows that the immediate cause of death was sepsis. The interval between its onset and death was listed as 12 hours. The certificate also shows fulminant hepatitis-unspecified as an underlying cause of death with an onset of days before death. At the time of his death, the Veteran was in receipt of service connection for second and third degree burns of the left leg, rated 40 percent disabling; burn contracture left upper extremity, rated 20 percent disabling; second and third degree burns of the right leg, rated 10 percent disabling; second and third degree burns of the back, rated 10 percent disabling; second and third degree burns of the right arm, rated 10 percent disabling; and PTSD with depression associated second and third degree burns of the left leg, rated 30 percent disabling. The appellant contends two theories of entitlement. First the appellant asserts the Veteran's death was due to leg infections at the site of his service-connected burns that led to sepsis and fulminant hepatitis. Second, the appellant contends that the Veteran's service-connected disabilities caused him to abuse Vicodin as a means of coping with the pain, and that his drug abuse contributed to the development of sepsis. In July 2005, Dr. R.P. performed a nephrology consultation at the time the Veteran was admitted to the emergency room. The Veteran presented with hypotension and systolic blood pressure of 90. Physical examination mentioned no leg ulcers or infections. The appellant could not state the number of tables of Vicodin the Veteran might have taken. In a medical opinion dated March 2006, Dr. F.R., indicated that the Veteran had been his patient between 2000 and 2005, and that he suffered from chronic venous insufficiency of the lower extremities. Dr. F.R. opined that the lower extremity ulcers, which the Veteran had because of standing on his legs for long hours at a time, were a contributing factor in the disseminated infection in the bloodstream. He further stated that the infection could easily enter through the open ulcers and spread through the rest of the body. In a June 2006 medical opinion, Dr. M.Z., indicated that he was the patient's primary physician for 18 years. Dr. M.Z. stated the Veteran had ulcers caused by chronic venous stasis, that eventually became infected and caused sepsis. He stated that sepsis caused renal failure which caused the Veteran's death. In a June 2008 statement, Dr. M.Z. stated the Veteran's death was directly and indirectly a result of the service-connected burns. In an April 2011 statement, Dr. A.G., indicated that she reviewed the Veteran's pertinent medical history. She recounted the Veteran's history including the fact that he treated pain with prescription and nonprescription Vicodin. She stated since there was no evidence to suggest viral hepatis or prolong circulatory collapse, it is quite likely that the Veteran's condition was due to toxin induced injury. She noted, given the absence of an acetaminophen level, it would be difficult to conclude with any degree of medical certainty that acetaminophen overdoing was the inciting trigger to the fulminant hepatitis. Dr. A.G. further stated that given the history provided which included the use of Vicodin on a regular basis and laboratory findings that corroborate a positive opiate test, it would be reasonable to conclude that it is at least as likely as not that the fulminant hepatitis was triggered or caused by ingestion of large doses of Vicodin (oxycodone and acetaminophen) and contributed to the Veteran's subsequent demise. In a medical opinion dated in March 2012, Dr. M.Z. stated that at the time of his June 2008 letter, that he had not seen any of the reports which were mentioned in the statement provided by Dr. A.G., or the toxicology screen performed at the Veteran's death. Dr. M.Z. stated, although there was no acetaminophen level performed on the Veteran's blood, he may have died from hepatic failure secondary to excessive acetaminophen levels. He stated that the Veteran used an unknown quantity of both his and his wife's Vicodin due to pain. Dr. M.Z. suggested when you combine the possibility of hepatotoxicity with the fact that the Veteran may have been ill with the possibility of sepsis, the combination could easily account for why he died. He further suggested, if you exclude sepsis as a cause, the fulminant hepatotoxicity with much elevated enzymes, could easily have put him into hepatic failure and the sole cause of his death. In a February 2012 VA medical opinion, a VA physician opined that it is less likely than not that the Veteran's service-connected condition of burns to his lower extremities and or PTSD contributed to his death. He stated he reviewed the claims file, emergency room department record, and Dr. A.G.'s April 2011 letter. He noted the history per the appellant that the Veteran was unresponsive for approximately 24 hours prior to presentation at the emergency room and that he was on Vicodin, Lorazepam, Albuterol, and Carisoprodol. He noted the Veteran's serum chemistry showed acute kidney failure, white blood count was 17 thousand, chest x-ray was normal, urine toxicology was positive for benzodiazepines and opiates, and blood and urine cultures were subsequently negative. The VA physician asserted that there is insufficient evidence to suggest an acute active infection from the Veteran's legs leading to septicemia and subsequent hypotension and shock as Dr. R.P. noted no source of infection, cutaneous or otherwise. He noted although an elevated white blood count is associated with infection, it can also occur in extreme physiologic stress, shock, and hypotension alone is insufficient to support the diagnosis of a leg ulcer infection as a cause for the Veteran's clinical presentation. The VA physician also asserted there is insufficient evidence to support the diagnosis that the Veteran either intentionally or unintentionally took an excessive amount of acetaminophen leading to liver failure. He noted, although the clinical picture of hypotension with elevated liver function tests and acute kidney failure can occur in acetaminophen toxicity, it can also occur after a period of hypotension. He noted the Veteran was reportedly unresponsive for nearly 24 hours prior to presentation, and was found to have a blood pressure of 90 systolic at admission, and that hypotension is an equally likely cause for liver failure. The VA physician noted there was no acetaminophen level done at time of the Veteran's emergency department presentation, was never prescribed Vicodin by VA providers, and except for June 2004 treatment that the Veteran never rated his pain level above 0/10, and per Mental Health notes never had a suicide attempt. The VA physician summarized that in the absence of a documented acetaminophen level at the time of presentation, any attempt to attribute his liver injury to an acetaminophen overdose, versus due to hypotension which was also present, would be pure conjecture. Likewise, the VA physician concluded in the absence of evidence of a site or source of acute infection, and with negative blood cultures, attributing hypotension to sepsis related to his leg burns is also pure conjecture. In October 2012, Dr. A.G., submitted a second medical opinion. She indicated that she reviewed the Veteran's pertinent medical records including the February 2012 opinion provided by the VA physician. In the opinion, Dr. A.G. addressed the Veteran's liver function. She noted the liver function tests performed when the Veteran was taken to the emergency room showed elevated ALT and AST which are found in associations with conditions causing extensive hepatic necrosis such as severe viral hepatitis, toxin induced liver injury, or prolong circulatory collapse. She stated that acetaminophen, when improperly used, can lead to liver damage and acute liver failure. She noted there was no history provided by the appellant or by the medical data at the time of presentation to suggest a specific theory for hypotension. Dr. A.G. agreed with the VA physician that there was insufficient evidence to suggest an acute active infection, and therefore, infection is less likely to be a possible source of hypotension. She noted that there is medical data suggestive of current Vicodin (opiate with acetaminophen) use. She stated given, the absence of an acetaminophen level, which was not obtained at the time of admission, it would be difficult to conclude with any degree of medical certainty that the Veteran's demise was due to an acetaminophen overdose. She concluded, it is at least as likely as not that the acute liver failure and fulminant hepatitis was triggered by large doses of acetaminophen, as contained in Vicodin and confirmed by positive opiate test, resulting in hemodynamic changes including hypotension, and contributing to the Veteran's subsequent demise. As noted, the appellant's original theory of entitlement was that leg infections led to sepsis and fulminant hepatitis. Although the Veteran's private physician, Dr. M.Z., stated that he felt the Veteran's death was a direct and indirect result of his service-connected disability, this opinion is not definitive or supported by the evidence of record. Dr. F.R.'s statement about bloodstream infection does not aid the appellant's case in that it does not relate the cause of the Veteran's death to a service-connected disability. Rather, emergency room records show that the Veteran had no source of infection at the time of his death. Moreover, Dr. A.G. agreed with the VA physician that there was insufficient evidence to suggest an acute active infection that was a possible source of hypotension. The Board finds the VA opinion, in regard to the source of the infection, is more probative than the other opinions of record. The VA physician had the benefit of review of the actual emergency room records, which provided findings consistent with the ulitmate opinion provided. Consideration has also been given to the appellant's assertions that the service-connected disabilities caused the excessive Vicodin use. However, the evidence does not support this entitlement theory. The Board accepts the appellant's contentions and Dr. M.Z.'s reports that the Veteran took acetaminophen for pain relief; the question presented is, in the context of no acetaminophen screen performed at the time of the Veteran's death, whether this evidence demonstrates that the Veteran in fact suffered excessive acetaminophen use leading to his cause of death. The evidence of record presents the Board with differing medical opinions as to whether acetaminophen was a cause of the Veteran's death. On the one hand, the VA examiner concluded that because an acetaminophen level was not performed, that cause of death cannot be attributable to liver injury or hypotension. Two private physicians, however, have concluded otherwise. The evidence favoring the appellant includes statements from two private physicians. Dr. M.Z. indicates that he did not review the reports referred to by Dr. A.G. Thus, he did not review the emergency room records and blood tests. This is indicative that his opinion is not based on a through review of the record and cannot be treated as though it was competent. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305-306 (2008) (finding in pertinent part that the Board had properly discounted the probative value of a physician's opinion that had overlooked key pertinent medical evidence). As to the favorable statements of Dr. A.G., the Board finds this opinion is not so persuasive to find in favor of the appellant. The opinion appears to be based upon knowledge that the Veteran had a history of Vicodin usage and a positive opiate test at hospital admission. The probative value of this opinion is limited as there is no indication of the amount of Vicodin the Veteran used based upon either toxicology screen or personal observation. However, the weight of this opinion suffers from a lack of clear explanation as to how the conclusion was reached. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion must provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). Dr. A.G. provides a positive opinion in support of the appellant's theory that excessive acetaminophen usage resulted in hypotension contributing to the Veteran's death. Notably, Dr. A.G. does not address the full record, such as the Veteran's period of unresponsiveness prior to hospital admission. On the other hand, the Board finds that the VA opinion is highly probative and consistent with the known facts in the case. With respect to the theory that acetaminophen overdose led to the Veteran's death, the VA physician's statement that any positive opinion would be pure conjecture without a toxicology screen is persuasive. The VA opinion is based upon a more accurate factual history which acknowledges the 24 hour period the Veteran was unresponsive prior to presentation at the emergency room, and accounts for the symptoms relied upon Dr. A.G. regarding hypotension and acetaminophen usage. Finally, the VA opinion fully explained the basis for the opinion by referring to the lack of laboratory findings and the insufficient evidence to attribute the liver failure and infection theory to the service-connected disabilities. Dr. A.G. does not give any consideration to the Veteran's period of unresponsiveness prior to presentation at the emergency room which is significant given the diagnosis of hypotension as well as commentary that an unknown acetaminophen level was attributable to the Veteran's hypotension. The Board has also considered the provisions regarding mental unsoundness and suicide. 38 C.F.R. § 3.302. Although the Veteran was service-connected for PTSD, there is no competent evidence linking the cause of death to his PTSD or mental unsoundness. While the record shows the Veteran had one suicide attempt in November 2002, the Veteran denied suicidal ideation in subsequent VA psychiatric treatment records. Although the VA opinion did not address the Veteran's suicide attempt, this does not negate its probative value because the physician did consider the Veteran's more recent mental health status and noted his June 2004 inpatient psychiatry service. Further, there is no positive evidence suggesting that the Veteran had thoughts of suicide following the November 2002 attempt. For the foregoing reasons, although the Board is sympathetic to the difficulties experienced by the Veteran and the appellant, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs