Citation Nr: 1542209 Decision Date: 09/29/15 Archive Date: 10/05/15 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: Sandra E. Booth, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, 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 June 2006 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned in April 2009. A transcript of that hearing is of record. In February 2011, the Board requested an independent medical opinion from a specialist regarding the cause of the Veteran's death. In a July 2011 Board decision, the claim of entitlement to service connection for the cause of death was denied. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2012 memorandum decision, the Court vacated the July 2011 decision and remanded the matter for readjudication consistent with the decision. In June 2013, the Board again denied the claim, and the appellant again appealed to the Court. In June 2015, the Court granted a joint motion for remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant claims entitlement to service connection for the cause of the Veteran's death. Essentially, it is claimed that the Veteran's service connected lumbosacral degenerative disc and joint disease was so debilitating that it contributed substantially and materially to his development of pneumonia which was the cause of his death. In this regard, the Veteran died in March 2006. The death certificate lists the immediate cause of death as bilateral pneumonia-mixed bacterial. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. 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 through March 2006 the Veteran was assigned a total disability evaluation based on individual unemployability. The Veteran's separation qualification record shows that prior to entering military service in August 1944 he supervised the activities of men in drift mining soft or hard coal. His duties included those of a miner and a mining foreman for six years. Service treatment records reveal no complaints, findings or diagnoses of a cardiac or lung disorder. The January 1946 separation examination revealed normal findings for the cardiovascular system and lungs. When examined by VA in March and April 1949, the Veteran's cardiovascular and respiratory systems were normal. By that point he had resumed working for a coal company. Chest x-rays performed in December 2000 at the Knox Community Hospital revealed clear lungs, and a normal cardiac silhouette. There were signs of old calcified granulomas. In a January 2001 letter from Dr. D.S., it was stated that the Veteran suffered from diabetes mellitus, chronic obstructive pulmonary disease, hypertension, degenerative arthritis, diverticulosis, dilated cardiomyopathy, atherosclerosis, and declining vision and hearing. Dr. 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. A September 2003 letter from Dr. L.W. noted that the Veteran had hypertension, atherosclerotic heart disease and congestive heart failure. Dr. L.W. stated that the Veteran was treated with nonsteroidal anti-inflammatory drugs for his service connected back disability, and opined that the Veteran's congestive heart failure could have been worsened, but not caused by, the use on non-steroidal anti-inflammatory drugs. In September 2003, 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. In February 2005, Dr. J.S. opined 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. In February 2006, the Veteran was admitted to Knox Community Hospital with a primary diagnosis of pneumonitis due to inhalation of food or vomitus. He was discharged two days later but was readmitted a few days thereafter when he became unresponsive. He was transported to the emergency department and found to be hypotensive. A cardiology consult yield impressions of hypertension and elevated troponin with multiple cardiac risk factors and with unresponsiveness, hypoxemia, hypotension, and elevated troponin, probably secondary to a myocardial infarction caused by multifactorial hypoxemia and hypotension; hypotension, most probably secondary to hypovolemia stable chronic obstructive pulmonary disease; and elevated glucose, rule out diabetes. The Veteran died in the hospital in early March 2006. The terminal discharge summary reflects a clinical impression of 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. Following an autopsy the pathologist diagnosed sepsis, organizing pneumonia, hypertensive cardiovascular disease and atherosclerotic cardiovascular disease. In a June 2006 letter Dr. J.S. reported that he was the sole medical physician for the Veteran up to the point of his death. Dr. J.S. opined 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 developed several pneumonias on top of his advanced black lung disease. Dr. J.S. 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. 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. (The Board notes that while the Veteran did serve in combat, contrary to the allegation presented by Dr. J.S., there is no evidence that the Veteran was awarded either "several" Purple Hearts, or the Silver Star.) In April 2009, the appellant testified before the undersigned. During the hearing, the appellant argued 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, Oxycodone 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 April 2011, a board certified cardiologist, who was an associate professor of medicine, and a director of a cardiovascular program at a heart institute noted reviewing the evidence of record, and he made certain findings to which he offered medical literature as support. This cardiologist 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 disease, and Alzheimer's. The examiner noted that congestive heart failure was shown in the record as first appearing in 1999. The cardiologist 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, discharged to home, but was brought back to the hospital after becoming unresponsive on February 27, 2006. The cardiologist stated that, upon admission, the Veteran's troponins (an enzyme found in the heart and muscle cells) rose. The Veteran's treating doctor, Dr. B.M., attributed the Veteran's clinical scenario to a myocardial infarction causing cardiogenic 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 autopsy confirmed that the Veteran died due to overwhelming pneumonia and sepsis. This examiner found that the autopsy demonstrated only moderate atherosclerotic disease of the left anterior descending and circumflex arteries, and mild disease of the right coronary artery. The examiner found that the autopsy did not find evidence of any thrombus to suggest an acute myocardial infarction. While the left ventricle was thickened, consistent with hypertensive changes of the heart, the autopsy did not show signs of thinning or necrosis to suggest a previous or recent myocardial infarction. As noted above, the appellant argues that the Veteran's service connected back disorder was so debilitating that it contributed substantially or materially to the cause of his death, or that it aided or lent assistance to the production of death. Given the fact that a respiratory specialist has yet to consider this argument, the Board will order further development. Accordingly, the case is REMANDED for the following action: 1. The RO must forward the Veteran's claims folder, VBMS file, and Virtual VA file to a board certified pulmonologist for review. Following his/her review of the Veteran's claims files, Virtual VA file, and any other electronic data base, to include VBMS, the pulmonologist must opine whether it is at least as likely as not that the Veteran's service connected lumbosacral degenerative joint and disc disease contributed substantially or materially to the cause of his death, or that it aided or lent assistance to the production of death. In this regard, please note that the law provides that it is not sufficient to show that a disorder shared in producing death, rather the evidence must show that there is a causal connection. As noted above the death certificate shows that the immediate cause of the Veteran's death was bilateral pneumonia-mixed bacterial. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. As also noted above, the Veteran's terminal discharge report lists his chronic obstructive pulmonary disease as being stable. If the requested opinion cannot be rendered without resorting to speculation, the pulmonologist must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. After the development requested has been completed, the RO should review the pulmonologist's report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the pulmonologist documented his or her consideration of Virtual VA and VBMS files. If any report is deficient in any manner, the RO must implement corrective procedures at once. 3. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant and her representative should be provided a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).