Citation Nr: 0028320 Decision Date: 10/27/00 Archive Date: 11/01/00 DOCKET NO. 96-12 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from February 1941 to January 1945. He also had prior service in the reserves. He died on January [redacted], 1995. The appellant is his widow. She appealed to the Board of Veterans' Appeals (Board) from an April 1995 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania-which denied her claim of service connection for the cause of the veteran's death. As support for her claim, she testified at a hearing at the RO in March 1996. After considering her hearing testimony and the other evidence of record, the Board issued a decision in May 1998 denying her claim, and she appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court)-formerly, the U.S. Court of Veterans Appeals. A private attorney, Robert V. Chisholm, Esquire, represented her before the Court and continues to represent her before VA. In November 1999, during the pendency of the appeal to the Court, the appellant's representative and VA General Counsel filed a joint motion requesting that the Court vacate the Board's decision and remand the case to the Board for further development and re-adjudication in accordance with the directives of the joint motion. The Court granted the joint motion for remand in December 1999 and returned the case to the Board. Thereafter, to comply with the directives of the joint motion, the Board requested a medical opinion from an independent medical expert (IME). The IME submitted the requested opinion in July 2000, and the Board apprised the appellant's representative of this in August 2000 and gave the appellant an opportunity to submit additional evidence or argument in response, which the appellant did in September 2000 through her representative. The representative also submitted a statement and accompanying evidence in October 2000-arguing that the appellant is entitled to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C.A. § 1318(b) (West 1991 & Supp. 2000). However, this claim has not yet been considered by the RO, and it must be prior to consideration by the Board. Although the representative has argued that the § 1318(b) claim is intertwined with the cause of death claim developed by the RO and therefore must be remanded to the RO, the Board finds no such relationship between the two claims. While the grant of either claim (service connection for the cause of the veteran's death or entitlement under § 1318(b)) would result in the award of DIC benefits, there is no other similarity or nexus between the two. In short, these are entirely separate claims based on distinctly different bases of entitlement. Therefore, nothing prevents the Board from adjudicating the one without considering the other. This § 1318(b) claim is referred to the RO for adjudicatory action. FINDINGS OF FACT 1. The cause of the veteran's death was a ruptured abdominal aortic aneurysm; coronary artery disease was a significant condition contributing to his death. 2. At the time of the veteran's death, service connection was in effect for an anxiety reaction, rated as 50 percent disabling. 3. The abdominal aortic aneurysm and coronary artery disease began many years after service and neither condition was caused or made worse by the service-connected anxiety disorder. 4. The service-connected anxiety disorder did not substantially or materially contribute to the veteran's death. CONCLUSION OF LAW Service connection for cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107, 7104 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant and her attorney allege that the veteran's service-connected psychiatric disorder, while not the immediate cause of his death, nonetheless contributed substantially or materially to it because his anxiety neurosis exacerbated his heart disease and caused additional complications-which in turn led to the fatal rupture of the abdominal aortic aneurysm. They assert that there is sufficient medical and other evidence of record substantiating this or at least sufficient to place the evidence for and against the claim in relative equipoise so as to warrant resolving all reasonable doubt in the appellant's favor. Since, as noted below, the record on appeal contains medical evidence suggesting that the aneurysm that caused the veteran's death is possibly related to his service-connected anxiety disorder, the claim is "well grounded"-meaning at least plausible or capable of substantiation. See 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (1997). To establish service connection for the cause of a veteran's death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310(a), 3.312(a). For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Records show that the veteran served on active duty from February 1941 to January 1945. During service, following an explosion of an ammunition dump, he began to experience residual symptoms of the trauma, including persistent ringing in his ears (tinnitus), severe headaches, and anxiety. Doctors in service diagnosed, among other conditions, a mixed psychoneurosis (hysteria and anxiety state), and, shortly after service, the RO granted his claim for service connection for the acquired psychiatric disorder. In March 1973, the RO assigned a 50 percent rating for his psychiatric disability which, according to the rating criteria in effect at that time, indicated he had "considerable" social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Code 9400 (1973). His psychiatric disability continued to be rated at the 50 percent level for the remainder of his life. Doctors at a VA medical center (VAMC) who treated the veteran for 18 days in January 1974 diagnosed arteriosclerotic heart disease (ASHD), angina pectoris, and multiple premature ventricular contractions (PVC's) with normal sinus rhythm, class II. During the next several years, there were numerous additional diagnoses of ASHD and associated heart disorders (manifested by intermittent episodes of chest pain, etc.). A VA physician who examined the veteran in March 1980 indicated in the report of that evaluation that "possibly the chest pain [was] an anxiety equivalent as opposed to secondary to a heart condition." That examiner diagnosed anxiety neurosis, described it as moderately severe, and recommended that the veteran be seen by a cardiac specialist to determine whether his chest pain was secondary to his emotions only. There is no indication in the evidence of record that he subsequently was seen by a cardiac specialist to make that determination. X-rays taken of the veteran's chest in October 1992 were compared to those previously taken in February 1990 and showed that his heart was not enlarged, and that there was no dilation or decompensation. There were indications of mild uncoiling of his ascending thoracic aorta. The diagnostic impression was that the cardiac silhouette was normal. In April 1993, the veteran complained of experiencing discomfort in the lower right portion of his rib cage, which he said increased on deep inspiration. On clinical examination, there were signs of minimal discomfort during palpation of the upper right quadrant of his abdomen. X-rays taken of his right ribs later that month were unremarkable for indications of a fracture, other recent bone injury, or trauma to the underlying lung parenchyma. The heart and mediastinal structures were found to be normal as well, and there was no diagnosis. Records show that the veteran also received treatment in September 1994 for complaints of chest pain. One of the conditions diagnosed was Chronic Obstructive Pulmonary Disease (COPD); other diagnoses were diabetes mellitus, trouble sleeping, and neurosis. On January 12, 1995, the veteran was admitted to the Lehigh Valley Hospital for complaints of back and abdominal pains, constipation, weight loss, and a decreased appetite. He indicated that he had been experiencing the symptoms for about two weeks. It was noted, among other things, that he had a history of chronic stable angina without a previous myocardial infarction (heart attack), type II diabetes mellitus, COPD, headaches, peptic ulcer disease, and the anxiety disorder. Thomas Brandecker, M.D., who initially examined the veteran at the time of his admission, indicated that an "ultrasound of the aorta [would] be done to rule out an abdominal aortic aneurysm;" When done, it confirmed that he had one and, unfortunately, approximately one week later, on January [redacted], 1995, he died following emergency surgery to repair it after it ruptured. The final diagnoses were ruptured abdominal aortic aneurysm, COPD, coronary artery disease (CAD), diabetes mellitus, and urinary retention. According to the certificate of death, which Dr. Brandecker signed, the immediate cause of death was the ruptured abdominal aortic aneurysm (AAA) of 1-day duration. Also listed as a significant condition contributing to death, but not resulting in the underlying immediate cause of death, was the CAD. There was no mention of any other underlying or contributory causes, and an autopsy was not performed. The appellant does not allege, and the evidence does not otherwise suggest, that the fatal aneurysm listed on the certificate of death as the immediate cause of death was either initially manifested while the veteran was on active duty in the military or for many years thereafter. Moreover, there is no evidence, nor is it contended, that the aneurysm or CAD was incurred in or aggravated by service, or may be presumed to have been. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312(b); Caluza v Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table). Rather, as mentioned earlier, the basis of the appellant's argument is that the service-connected anxiety disorder contributed to the veteran's death because it exacerbated his heart disease and caused additional complications-which in turn led to the fatal rupture of the abdominal aortic aneurysm. In February 1995, after being asked by the appellant to comment on whether the veteran's death was related to his service- connected psychiatric disorder, Laura Kramer, D.O., who was his primary care physician at the VA outpatient clinic in Allentown, Pennsylvania, indicated that "aneurysms are not directly related to neurosis." Dr. Brandecker, however, who treated the veteran at Lehigh Valley Hospital during the days immediately preceding his death, commented in several statements submitted in support of the claim-in August 1995, August 1996, and September 1996- that, although it is difficult to draw a definite causal link between these two conditions, it is conceivable (potentially possible), and perhaps even plausible, that the veteran's service-connected anxiety neurosis may have contributed to his death by exacerbating or promoting the progression of his heart disease (CAD/ASHD) because these conditions have been shown to increase the rate of myocardial infarction and to contribute to cerebrovascular disease, which in turn may have contributed to the development of the aneurysm or perhaps, ultimately, the fatal rupture of it. Dr. Brandecker also said that it is possible that the veteran's service-connected anxiety neurosis could have contributed to his death in another way-by adversely affecting (impairing) his judgment and, as a consequence, his ability to seek medical attention quickly and to accurately describe his symptoms. Dr. Brandecker went on to note that, prior to giving his opinion, he reviewed the veteran's pertinent medical history (as discussed in records from 1955 and the 1970's), and that, although he cannot provide any definitive data or evidence to support his hypothesis, it still is possible that this may have occurred in this particular instance. A VA physician who also was asked to give a medical opinion concerning the case, concluded in a September 1996 statement that there was no medical basis to support Dr. Brandecker's opinion for associating the fatal rupture of the aneurysm to the veteran's service-connected anxiety neurosis. As support for his opinion, he indicated that he had reviewed the veteran's pertinent medical history, just as Dr. Brandecker did, and stated that it is well documented-both medically and surgically-that aneurysms are classified according to etiology (e.g., degenerative, inflammatory, mechanical, congenital, dissecting), shape, and location. It was further indicated that arteriosclerotic aneurysms are true aneurysms, which is what the veteran had, and, to corroborate this, he attached two pages from Lange Surgical Diagnosis and Treatment, 10th Edition, Chapter 35. He also cited clinical findings in the medical evidence of record, including those noted by the surgeon, Dr. Welkie, who operated on the veteran's aneurysm at Lehigh Valley Hospital, and the absence of any mention whatsoever of the service-connected anxiety disorder on the official certificate of death. More recently, in March 1997, a physician from the VA outpatient clinic in Allentown, Pennsylvania, submitted another statement concerning the case. She indicated that the veteran was treated continuously for his service-connected anxiety neurosis from the time he was in the military until his death. She also pointed out that he had a history of arteriosclerosis dating back to the 1970's, and that it had been acknowledged that anxiety and stress can contribute to the progression of arteriosclerosis. She added that she was certain that, to some degree, his service-connected anxiety neurosis contributed to the development of his fatal aneurysm-thereby warranting a grant of service connection for the cause of his death. As a means of resolving the conflicting medical opinions of record, for and against the claim, the Court-approved joint motion for remand directed that the Board obtain an opinion from an IME concerning the merits of the case. The Board requested the IME opinion in May 2000 and, after summarizing the evidence and soliciting a review of the entire record on appeal, including the joint motion for remand, the Board posed the following questions: i) What caused the veteran's death? ii) Given the cause or causes of the veteran's death, did the service- connected anxiety neurosis contribute substantially or materially to his death, or combine to cause his death, or aid or lend assistance to the production of death? The IME submitted his opinion in July 2000, indicating that the rupture of the abdominal aortic aneurysm and the complications of that condition, including the required emergency surgery-caused the veteran's death. The IME also pointed out that the appellant and her representative are not disputing this since they are alleging entitlement to service connection for the cause of the veteran's death-not on the premise that his service-connected anxiety disorder was the immediate cause of his death-but instead on the alternative theory that it contributed substantially and materially to his death. However, the IME concluded that, given the current understanding of this disease process, the veteran's service-connected anxiety neurosis did not contribute substantially or materially to his death, nor combine to cause his death, nor aid or lend assistance to the production of death. Prior to giving his professional expert opinion, the IME reviewed all of the pertinent medical and other evidence concerning the case-including the records of the terminal hospitalization, which he discussed in detail, noting the veteran's specific symptoms, both at the time of his admission to Lehigh Valley Hospital and during the days immediately preceding it, as well as the specific clinical findings that were made once examined, and the various other conditions that he had experienced in the past aside from the abdominal aortic aneurysm (namely, COPD with a history of cigarette use, the anxiety disorder, chronic headaches, peptic ulcer disease, stable angina, diabetes mellitus, and a transurethral resection of the prostate). The IME also provided a comprehensive discussion of the rationale underlying all of his conclusions, while citing to several different sources of medical authority to substantiate each aspect of the opinion. The IME stated that none of four prominent, commonly consulted textbooks on cardiovascular disease mentioned anxiety neurosis or any related psychiatric or psychological condition as causing or contributing to the pathophysiology of abdominal aortic aneurysms, or their rupture. The IME also stated that a search of literature using Medline and the keywords aortic aneurysm and anxiety in an expanded search for the years 1966 to the present resulted in no articles in medical journals on the subjects. The IME commented further that, conditions which were mentioned as associated with aortic aneurysms in the literature were aging, atherosclerosis (promoted by smoking, hypertension, diabetes, hypercholesterolemia, heredity), infection, inflammation, trauma, congenital anomalies, medial degeneration (i.e., Marfan's, Ehlers-Danlos), and vasculitis (i.e., Takayasu's, Giant cell, ankylosing spondylitis). The IME said that most authors agreed that aortic aneurysms arose as a consequence of multiple interacting factors, and that classically atherosclerosis was considered the most common underlying etiology of aortic aneurysm-and would likely be the designated etiology in the case under discussion. On the more general subject of whether psychosocial factors played a significant role in causing or worsening any form of cardiovascular disease, the IME said that the major textbooks that he consulted all agreed that there was no definitive or compelling evidence that such a relationship existed. The IME also pointed out that CAD has been, by far, the predominant condition studied-with the most widely studied psychosocial factor being the type A personality (a person who is stressed, competitive, angered by environment). The IME indicated that, while often quoted as associated with CAD, in two of the largest and best studies, there was no association between personality type and major coronary events shown. The IME acknowledged that it is thought that acute emotional reactions can act as triggers of cardiac ischemia in patients who have already developed the disease by increasing sympathetic stimulation but, nevertheless, psychosocial factors are not listed as a definite or even likely risk factor for CAD in the major cardiac textbooks or journal articles. Lastly, in commenting on the opinions of Drs. Brandecker and Kramer, the IME said that they both expressed commonly held beliefs among physicians and the lay public that stress or personality type contributes to the development of atherosclerosis in the coronary arteries. But that solid scientific literature did not support this view. And as further evidence of this, the IME pointed out that, as best as can be discerned from the records presented, there was no diagnostic evidence for CAD, and at any rate it does not appear that the veteran was experiencing symptoms or signs of myocardial ischemia at his final presentation to the hospital or during his hospital stay or around his death. The IME reiterated that there was no literature concerning aortic aneurysms and psychosocial traits that could be found; that abdominal aortic aneurysms are fairly common in elderly men; that predicting rupture of an abdominal aortic aneurysm is difficult; that a combination of aortic wall stretch, hemodynamics, and inflammation probably contribute to this pathologic and often fatal state; and that chronic anxiety neurosis would not likely play a role in this pathophysiology as it is currently understood. The Board finds that the medical opinions against the claim are more probative of the material issues in this particular case than the contrary medical opinions which support the claim of service connection. See Wray v. Brown, 7 Vet. App. 488 (1995). The IME cited extensively to specific medical authority as support for the conclusions, whereas those who found a possible relationship did not cite to any such medical authority whatsoever. And that was despite both physicians being given ample opportunity by the RO to do so. The RO requested this type of corroborating evidence (e.g., in the form of a medical treatise, etc.) in an August 1996 letter, and later requested this type of supporting evidence in an April 1997 letter. However, neither doctor who filed opinions favorable to the claim submitted or otherwise identified the existence of any such medical authority to support their opinions; instead, they only made bare, unsubstantiated conclusory statements. And even then, Dr. Brandecker, himself, largely couched his opinion in equivocal language indicating that there still was some degree of uncertainty on his part, and he also openly acknowledged that he was unable to provide any definitive data or evidence at all to support his hypothesis-although he still believed that it was potentially possible that a relationship existed between anxiety and the fatal process. The same was true of the medical opinion of Dr. Kramer. Although she was a bit more definite in her assertions, she also did not provide or cite to any medical authority to support her position of a link between the veteran's service- connected anxiety neurosis and his death from the ruptured abdominal aortic aneurysm-even by way of his heart disease. And according to a December 1997 conference report in the claims folder, Dr. Kramer did not respond to the RO's April 1997 letter requesting a medically substantiated basis to support her opinion. Also, although both Dr. Brandecker and Dr. Kramer indicated that the service-connected anxiety neurosis "contributed" to the veteran's death from the development of the fatal abdominal aortic aneurysm, neither specified the degree of such contribution (i.e., whether it was substantial or material, etc.)-only very generically that the service-connected anxiety contributed "in some way" or "to some degree." More is required to warrant service connection-particularly where, as here, there was no mention whatsoever of the service-connected anxiety disorder on the official certificate of death, which Dr. Brandecker signed himself as the veteran's primary treating physician. See 38 C.F.R. § 3.312(c). Consequently, since the countervailing medical opinions do not suffer from these important evidentiary shortcomings, and were prepared with consideration of the contrary opinions of Drs. Brandecker and Kramer, the opinions against the claim are deserving of more evidentiary weight. In deciding whether the veteran's death was related to his service-connected psychiatric disorder-and specifically his anxiety-it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, to accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). That responsibility is particularly difficult when, as here, medical opinions diverge. And at the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Evans at 31; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, for the reasons discussed above, the Board believes there are legitimate reasons for favoring the opinion of the IME over those of Drs. Brandecker and Kramer. With further regard to the medical evidence for and against the claim, the Board emphasizes that an opinion by a medical professional is not altogether dispositive and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence and held that medical opinions, such as those from Drs. Brandecker and Kramer, which are based on speculation, without supporting clinical data or other rationale, do not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Furthermore, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Also, a medical opinion that is based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Finally, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In sum, the weight to be accorded the evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. And it is in this critical respect that the opinions against the appellant's claim outweigh those of Drs. Brandecker and Kramer-so much so that the evidence, as a whole, is not approximately balanced for and against the claim. Thus, because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In reaching this conclusion, the Board also has considered that the March 1980 VA examination report might be considered as evidence favorable to the claim. However, the March 1980 neuropsychological examiner only questioned whether the veteran's "chest pains" could have some emotional basis, and did not specifically address aneurysms, CAD, ASHD, or other vascular disease. Thus, the March 1980 report is of no probative value as to the cause of the veteran's death. Although the appellant contends that service connection for the cause of the veteran's death is warranted, as a lay person, she is not competent to give a medical opinion on the diagnosis or etiology of a condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); King v. Brown, 5 Vet. App. 19, 21 (1993). Also, although she requested in a statement that she recently submitted to the Board in September 2000, through her representative, that the IME be given another opportunity to review the case, the evidence that she cited as a basis for such additional review is none other than that which the IME already considered prior to rendering his July 2000 opinion. Consequently, there is no basis for requesting that he review the case again. 38 C.F.R. § 20.1304. ORDER Service connection for the cause of the veteran's death is denied. MARK F. HALSEY Veterans Law Judge Board of Veterans' Appeals