Citation Nr: 0204963 Decision Date: 05/23/02 Archive Date: 06/03/02 DOCKET NO. 94-22 236 ) 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: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to December 1945. This case comes before the Board of Veteran's Appeals (the Board) on appeal from an August 1992 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The appellant and her daughter testified at a hearing before a member of the Board in December 1998. A copy of the transcript of that hearing has been associated with the record on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran died in June 1992; his death was caused by ventricular dysrhythmia due to ischemic cardiomyopathy and coronary atherosclerosis. 3. During the veteran's lifetime, service-connection was in effect for amputation of the left great toe with removal of the metatarsal head as a residual of frozen feet with callus formation; amputation of the right great toe with removal of the metatarsal head as a residual of frozen feet with callus formation; moderate residuals of frozen feet with return circulation impaired with both feet cold and cyanotic; and amputation of the second, third, fourth, and fifth toes bilaterally as residuals of frozen feet with callus formation. 4. Heart disease (including ventricular dysrhythmia, ischemic cardiomyopathy, and coronary arthrosclerosis) was not present in service, manifested within one year of the veteran's discharge from service, or etiologically related to service, nor does the evidence show an etiological relationship between the veteran's service connected foot disabilities and the cause of the veteran's death. CONCLUSION OF LAW The cause of the veteran's death, ventricular dysrhythmia due to ischemic cardiomyopathy and coronary atherosclerosis, was not incurred in or aggravated by active service and may not be presumed to have been incurred therein; a service- connected disability neither caused nor contributed materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.303, 3.307, 3.309. 3.312 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq.; see Duty to Assist Regulations for VA, 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326). The VCAA eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims (the Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). The VCAA also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this case, the Board finds that the VA's duties, as set out in the VCAA, have been fulfilled. First, VA has a duty to notify the appellant and her representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 1991 & Supp. 2001); 66 Fed. Reg. 45,630 (Aug 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)). The appellant has been notified in the August 1992 and June 1994 rating decisions, the August 1993 Statement of the Case, and the June 1994, the October 1994, and the October 2000 Supplemental Statements of the Case, of what would be necessary, evidentiary wise, to grant service connection for the cause of the veteran's death. Specifically, the notices sent to the appellant discussed the available evidence and informed the appellant that service connection for the cause of the veteran's death was being denied because there was no evidence of any heart disease in service, and no evidence linking the veteran's heart disease to his service-connected foot disabilities. The Board therefore concludes that the appellant was adequately informed of the information and evidence needed to substantiate her claim, and the RO complied with VA's notification requirements. Thus, VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 1991 & Supp. 2001); 66 Fed. Reg. 45,630-45,631 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)). The RO gathered the veteran's service medical records, voluminous treatment notes dated from 1973 to 1992, and medical opinions from several doctors. The appellant has not indicated that there is other relevant evidence available. Thus the Board finds that the RO provided the requisite assistance to the appellant in obtaining evidence regarding the cause of the veteran's death. In fact, it appears that all such relevant evidence identified by the appellant relative to her claim has been obtained and associated with the claims folder. The Board therefore concludes that the duty to notify and assist under the VCAA has been satisfied and under the circumstances of this case, a remand would serve no useful purpose. See, Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (Strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Thus, the Board finds that further development is not warranted and the appellant is not prejudiced by appellate review. See, Bernard v. Brown, 4 Vet. App. 384 (1993). II. Evidence The veteran's service medical records reveal that he suffered frostbite in both feet in December 1944. He had toes amputated in March 1945 and additional surgery in April, June, July, August and November 1945. In December 1945 the veteran was granted service connection for residuals of frostbite and amputation of his toes and assigned a 100 percent disability rating. In May 1946 this rating was reduced to 60 percent. In January 1947 the veteran's disability rating was increased to 80 percent for amputation of the left great toe with removal of the metatarsal head as a residual of frozen feet with callus formation; amputation of the right great toe with removal of the metatarsal head as a residual of frozen feet with callus formation; moderate residuals of frozen feet with return circulation impaired with both feet cold and cyanotic; and amputation of the second, third, fourth, and fifth toes bilaterally as residuals of frozen feet with callus formation. This rating remained in effect until the veteran's death in June 1992. There is no indication in the service medical records that the veteran suffered from any form of heart disease. There is no indication of ventricular dysrhythmia, ischemic cardiomyopathy, or coronary atherosclerosis. The veteran's blood pressure was 120/84 at the time of induction and the veteran's blood pressure while hospitalized in 1945 was measured at 116/78. Treatment records from Eden Hospital in April 1973 are the first indication in the record of any heart disease. The veteran was admitted to the hospital in April 1973 with an admitting diagnosis of myocardial ischemia and after examination the final diagnosis was inferior wall myocardial infarction. He was admitted again in July 1973 with a possible myocardial infarction, and was again admitted in September 1973 with post-myocardial infarction syndrome. Eden Hospital records from 1976 reveal that in July 1976 the veteran was again admitted with a myocardial infarction and arteriosclerotic heart disease. Eden Hospital records from November 1979 and July 1984 show additional treatment for heart related complaints. None of these records indicates any etiology of the heart disease and there is no indication of any link between the veteran's heart disease and his service-connected foot disabilities. In June 1992 the veteran was admitted to the Eden Hospital ER with cardiac arrest and he died without regaining consciousness. Again there was no indication of any link between this heart disease and his foot disabilities. Medical records from Dr. Johnson, dated from April 1986 to June 1992, reflect that the veteran was seen for his heart disease and diagnosed with coronary heart disease. The treatment notes indicate that at times the veteran was able to walk up to one mile without apparent difficulty, but that at other times his walking and activity level were more limited due to his missing toes and pain in his feet. There is no indication in these treatment notes of any link between the veteran's foot disabilities and inability to walk or exercise at times and the progression of his heart disease. The records indicate that in May 1986 the veteran underwent a coronary bypass operation. The operation notes and treatment notes do not indicate any relationship between the veteran's heart disease and his service-connected foot disabilities. Treatment notes from Dr. Angotti dated from 1986 to 1991 reveal that the veteran was experiencing pain on walking and standing. Dr. Angotti referred the veteran to Dr. Caldwell who treated the veteran for pain in his knee, not pain in his feet, in April and May 1989. In December 1989 the veteran was hospitalized at Samuel Merritt Hospital under the care of Drs. Angotti and Johnson. The veteran underwent right heart catheterization, retrograde left heart catheterization, selective coronary arteriography and selective arteriography of the saphenous vein grafts. Additionally, the veteran underwent aortobifemoral bypass surgery on December 28, 1989. Dr. Angotti provided a postoperative diagnosis of lower extremity ischemic disease secondary to arteriosclerosis. There is no indication at the time of this hospitalization that there is any link between this ischemic disease and the veteran's service-connected foot disabilities. In February 1990 the veteran underwent a femorotibial bypass utilizing the vein from the left leg transferred and reversed into the right leg. Treatment notes continue post-operatively for several months with some complications noted including ulceration and infection but with no link indicated between those conditions and the veteran's foot disabilities. In March 1991 the veteran was hospitalized with an acute pulmonary embolism that resolved and the veteran was discharged after a five-day hospital stay. There are additional treatment records from Dr. Tomasello dated from 1985 to 1990. Dr. Tomasello is a Doctor of Podiatric Medicine and did not treat the veteran for any heart disease, but rather only for his foot disabilities. There is no indication in these treatment notes that there was any link between foot disabilities and the veteran's heart disease. The appellant and her daughter testified at a hearing before a member of the Board in December 1998. The testimony was to the effect that the veteran had difficulty walking or exercising, that he had problems with his feet since leaving service, and that he had circulatory problems in his lower legs that led to several surgeries. The appellant and her daughter offered their opinion that the veteran's foot disabilities had led to his heart disease, and the record was held open so they could attempt to get some statement from the veteran's doctor regarding the etiology of his heart disease. Dr. Angotti provided a letter dated in January 1999 that stated he treated the veteran for heart disease for six years and that it was his medical opinion that the veteran's loss of toes on both feet and subsequent circulatory problems more likely than not, hastened the veteran's death. Dr. Angotti did not cite any clinical evidence or any scientific study to support his opinion. In October 2000, the RO sought an opinion from a VA physician, Dr. Riordan, regarding the likelihood of a relationship between the veteran's service-connected foot disabilities and his death due to heart disease. Dr. Riordan offered his opinion that there was no evidence establishing a link between cold injuries and heart disease. He stated that the only minor effect of frostbite residuals would be impaired wound healing of the feet. Dr. Riordan did not comment on whether the veteran's foot disabilities would have limited his exercise and therefore possibly led to the development of heart disease. The appellant's representative presented an opinion from Dr. Craig N. Bash dated in September 2001. Dr. Bash offered his opinion that the veteran's bilateral toe amputations and foot disabilities made it very difficult for the veteran to remain active or perform cardiovascular fitness exercises and that this inactivity caused the veteran's death from heart disease. Dr. Bash disagreed with Dr. Riordan's opinion and Dr. Bash cited a study that he said supported his opinion. This study did find that there was an increase in ischemic heart disease among lower extremity amputees, but the study was focused on leg amputations and did not specifically address amputations of toes that left part of the foot intact. Yekutiel et. al., The Prevalence of Hypertension, Ischaemic Heart Disease, and Diabetes in Traumatic Spinal Cord Injured Patients and Amputees, Paraplegia 27 pp.56-62 (1989). Based on the conflicting medical opinions, the Board sought a VHA opinion in January 2002. The Board requested that the claims folder and the evidence be reviewed and an opinion be offered as to whether it was more likely, less likely, or as likely as not, that the veteran's service-connected disabilities caused or contributed in a material and substantial way to the veteran's death. The request for an opinion was referred to a podiatrist, who reviewed the claims folder and noted that the veteran first suffered a myocardial infarction in 1973, and that he was a smoker who continued to smoke until 1989, three years after his coronary bypass operation. It was reported that there was no indication in the file that the veteran needed assistive devices in order to walk such as braces, crutches, canes, molded shoes, or other prosthetic items. It was also noted that the veteran's amputation of his toes did not restrict him in his occupation as a truck driver. The podiatrist offered his opinion, based on long experience with these types of amputations, that a patient with amputations similar to the veteran's normally would have the ability to perform exercises and to function successfully. He considered the possibility that pain would have limited the veteran's exercising but the claims folder showed that the only pain medication the veteran used was Motrin as needed and there was no indication of prescriptions for narcotic analgesia, tricyclic antidepressants, or vasodilators which would have been expected with severe neuropathic pain. The podiatrist stated that at the time of amputation, in 1945, with there being no heart disease then present, there was no reason why the veteran could not have participated in some form of aerobic activity even if non load-bearing such as swimming, or cycling, or rowing. In contrast to patients with major amputation as a result of severe vascular disease, the veteran was fully rehabable at the time of his amputations due to the absence of ischemic cardiomyopathy and minimal to nonexistent functional demands of his amputations. It was concluded that it was highly unlikely that the veteran's service-connected foot disabilities had resulted in the veteran's death. Subsequent to this opinion, the appellant offered a follow-up opinion from Dr. Bash in April 2002. Dr. Bash disagreed with the VHA opinion and continued to assert his opinion that there was a relationship between the veteran's foot disabilities and his heart disease. Dr. Bash questioned the competence of the expert to offer an opinion since he was a podiatrist and not a cardiologist, and Dr. Bash objected to the idea that the veteran could have participated in alternative cardiovascular exercises such as swimming or cycling. Dr. Bash also pointed out that the podiatrist had incorrectly stated that the veteran had hypertension at the time of his induction into service. III. Analysis In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2001). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. Id. The service connected disability will be considered as the principal (primary) cause of death when such 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) (2001). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death", thereby contributing substantially or materially to the cause of death. See, Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1) (2001). If the service-connected disability affected a vital organ, consideration must be given to whether the debilitating effects of the service- connected disability rendered the veteran less capable of resisting the effects of other diseases. See, 38 C.F.R. § 312(c)(3) (2001). 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; that it 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) (2001). In this case, the veteran's death certificate reflects that he died in June 1992 as a result of ventricular dysrhythmia due to ischemic cardiomyopathy and due to coronary atherosclerosis.. The veteran's service medical records are negative for any mention of heart disease. The treatment records reveal that the veteran first suffered a heart attack in 1973 and that he underwent treatment for heart disease and circulatory problems for the rest of his life. He underwent a coronary bypass operation in 1986 and in 1989 the veteran underwent right heart catheterization, retrograde left heart catheterization, selective coronary arteriography and selective arteriography of the saphenous vein grafts. Additionally, the veteran underwent aortobifemoral bypass surgery on December 28, 1989. In February 1990 the veteran underwent a femorotibial bypass utilizing the vein from the left leg transferred and reversed into the right leg. Throughout these treatment notes there is no indication of any link between the veteran's foot disabilities and his heart disease. As far as physical activity goes, the veteran was a truck driver and continued in this occupation after his first heart attack in 1973. Treatment notes from Dr. Johnson dated between 1986 and 1992 indicate that at times the veteran was able to walk up to one mile without apparent difficulty, but that at other times his walking and activity level were more limited due to his missing toes and pain in his feet. Since the service medical records are negative for any heart disease, and since the post-service treatment records are negative for any mention of a link between the veteran's foot disabilities and his heart disease, this case essentially revolves around the various medical opinions contained in the file. There are two opinions that support the claim, those being the opinions of Dr. Angotti and Dr. Bash. There are also two contrary opinions by Dr. Riordan and a podiatrist. For the reasons discussed below, the Board finds the latter two opinions more persuasive. Dr. Angotti was one of the veteran's treating physicians. His opinion as to the relationship between the veteran's foot disabilities and his heart disease is expressed in a letter dated in January 1999. This letter states Dr. Angotti's opinion but he offers no clinical evidence to support the opinion and he cites no scientific studies that support his opinion. Dr. Angotti's own treatment notes offer no indication that there was a causal relationship between the veteran's toe amputations and his heart disease. With no clinical evidence and no studies cited, the Board places little weight on Dr. Angotti's unsupported opinion. Dr. Bash offered his detailed opinion that the veteran's foot disabilities led to inactivity and inability to perform cardiovascular exercise which in turn led to his heart disease. Dr. Bash cited a study which he said supported his opinion. The study, however, does not address the issue of increased prevalence of heart disease in patients with toe amputations, the study is focused on lower limb amputees both above and below the knee. There is no information in that study discussing whether toe amputations were related to the onset of heart disease. VA regulations already support the notion of a connection between heart disease and lower limb amputations when those amputations are at or above the knee in one leg or at or above the ankles bilaterally. 38 C.F.R. § 3.310 (2001). If a veteran has a single limb amputation at or above the knee or bilateral amputations at or above the ankles then any ischemic heart disease or other cardiovascular disease shall be held to be the proximate result of the amputations. Id. This regulation was promulgated following a National Academy of Sciences (NAS) study from 1979, which established the higher incidence of heart disease in patients with a single amputation at or above the knee or bilateral amputations at or above the ankles. The NAS study did not find a significant increase in the incidence of heart disease in patients with toe amputations. 44 Fed. Reg. 50,339-50,340 (August 28, 1979) as codified at 38 C.F.R. § 3.310. Dr. Riordan's opinion was that residuals of a cold injury would not have had had a causative effect in developing heart disease. Dr. Riordan stated that the only minor effect of frostbite residuals would be impaired wound healing of the feet. Dr. Riordan did not, however, address the question of whether the veteran's multiple toe amputations would have had an effect on his level of activity which could have then lead to heart disease. The VHA podiatrist opined that amputations of the sort the veteran had, would not necessarily have limited his physical activity or ability to engage in cardiovascular activity. It was noted that the veteran was not using any prosthetic devices or assistive devices such as canes or braces or crutches and that even if load-bearing exercise would be limited by toe amputations there were other forms of aerobic exercise available such as cycling, swimming, or rowing. The podiatrist did incorrectly note that the veteran had hypertension upon entry into service, but this error did not affect his opinion that amputation of the toes would not have prevented the veteran from exercising. He also cited a medical study which found that traumatic amputees who sustain amputations distal to the ankle joint experience walking speeds that are essentially normal and oxygen demands very close to normal. This is borne out by the treatment notes which indicate that the veteran at times was able to walk a mile. It is true that at other times the veteran experienced difficulty walking according to the treatment notes but it is not established that this led to his heart disease. After reviewing all the evidence and each of the medical opinions offered, the Board finds that it is less likely that the veteran's heart disease was related to his service- connected foot disabilities and that therefore it is less likely that the veteran's death was related to service or caused by a service-connected disability. For the reasons outlined above, the Board finds that the NAS study and the VHA opinion are more probative than other evidence of record and these weigh against the appellant's claim. Contrary to Dr. Bash's assertions, the Board finds the podiatrist to be a proper and persuasive authority on the effects the toe amputations had on the veteran's activity level and the onset of cardiovascular disease. The VA regulations regarding a link between lower limb amputations and heart disease are based on a NAS study which found that bilateral amputations at or above the ankles did lead to an increase in the incidence of heart disease, but that no such relationship could be established with toe amputations. The VHA opinion is weighed more heavily because the podiatrist cited to a medical treatise showing that amputations distal to the ankle joint have limited or no effect on walking speed or oxygen demands when walking. The veteran is shown in the record to be capable of driving a truck and of walking up to a mile as recently as 1986. There is no indication that the veteran was unable to perform alternative aerobic exercise as suggested by the podiatrist. Additionally, as the podiatrist noted, the veteran did not use a prosthetic device or assistive devices of any kind, which is at least suggestive that he did not have substantial difficulty walking due to his amputations. At the time of his death the veteran has established service connection for multiple foot disabilities including amputation of all of his toes bilaterally. The most persuasive evidence indicates that these disabilities were not a contributing factor in the cause of the veteran's death. None of the treatment notes suggest that there was a relationship between these service-connected disabilities and the veteran's heart disease. The cited medical studies and literature, as a whole, do not support the idea that amputation of the toes can be related to the development of heart disease. The VHA opinion that the veteran could still have engaged in activity and exercise is supported by treatise, by the medical expert's experience, and by the record as it relates to the veteran. Therefore, the Board finds that the veteran's service-connected disabilities were not contributory causes of his death. 38 C.F.R. § 3.312 (2001). ORDER Entitlement to service connection for the cause of the veteran's death is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.