Citation Nr: 0508335 Decision Date: 03/21/05 Archive Date: 03/30/05 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: Mark R. Lippman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD M. Carsten, Associate Counsel INTRODUCTION The veteran had active military service from March 1943 to December 1945. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for the cause of the veteran's death. The appellant subsequently perfected this appeal. A hearing before a member of the Board sitting at the RO was held in December 1998. A transcript of this hearing is associated with the claims folder. In April 1999, the Board remanded this case for additional development. In January 2002, the Board requested an opinion from the Veterans Health Administration (VHA). In May 2002, the Board denied entitlement to service connection for the cause of the veteran's death. The appellant subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The appellant also filed a Motion for Reconsideration that was denied by the Board in March 2003. In October 2003, the parties filed a Joint Motion for Remand. The Court subsequently vacated the Board's decision and remanded the matter for readjudication consistent with the motion. In July 2004, the Board again remanded the case for further development. The case has since returned to the Board. FINDINGS OF FACT 1. VA has satisfied its duty to notify and has obtained all evidence necessary for an equitable disposition of the appellant's appeal. 2. At the time of his death, the veteran was service- connected 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; and shrapnel wound of the lateral aspect of the right arm, for a combined evaluation of 80 percent. 3. The Certificate of Death indicates that the veteran's immediate cause of death was ventricular dysrhythmia due to ischemic cardiomyopathy due to coronary atherosclerosis. No other significant conditions contributing to death but not related to the cause were noted. 4. Heart disease (including ventricular dysrhythmia, ischemic cardiomyopathy, and coronary atherosclerosis) was not present in service, manifested within one year after discharge, or etiologically related to service; and the preponderance of the evidence is against a finding that the veteran's service-connected disabilities caused or contributed substantially or materially to his death. CONCLUSION OF LAW A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION By letter dated in September 2004, VA advised the appellant of the evidence necessary to substantiate her claim for Dependency and Indemnity Compensation (DIC) benefits. She was notified of her and VA's respective obligations with regard to obtaining evidence. Specifically, that VA was responsible for obtaining relevant records held by a Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency. She was advised that she must provide enough information about records so that VA could request them and that it was her responsibility to make sure that VA received all records not in the custody of a Federal agency. She was asked to advise VA if there was any other evidence or information that she thought would support her claim and was further advised to send to VA any evidence in her possession that pertained to her claim. The August 1993 statement of the case (SOC), the June 1994 supplemental statement of the case (SSOC), the October 1994 SSOC, the October 2000 SSOC, and the November 2004 SSOC collectively notified the appellant of the laws and regulations pertaining to her claim. These documents also advised her of the evidence of record, of the adjudicative actions taken, and of the reasons and bases for denial. The claims folder contains the veteran's service medical records, multiple private medical records, and various medical opinions addressing the relationship between the veteran's service-connected disabilities and the cause of his death. In December 2004, the appellant's attorney indicated that she did not have any additional evidence or argument to provide. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159 (2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Background The veteran's service medical records reveal that he suffered frostbite in both feet during combat in December 1944. He had toes amputated in March 1945 and additional surgery in April, June, July, August, and November 1945. The veteran was given a Certificate of Disability Discharge in December 1945 and was subsequently awarded service connection for residuals of frostbite and amputation of his toes and was assigned a 100 percent disability rating. In May 1946, this rating was reduced to 60 percent. In January 1946, the 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. Service medical records are negative for any evidence of treatment for or a diagnosis of a cardiac disability. The veteran's blood pressure was 120/84 at the time of induction and was measured at 116/78 while he was hospitalized in 1945. Records from Eden Hospital indicate the veteran was admitted to the hospital in April 1973 with a diagnosis of myocardial ischemia. After examination the final diagnosis was inferior wall myocardial infarction. He was admitted again in July 1973 with a possible myocardial infarction, and was admitted in September 1973 with post-myocardial infarction syndrome. 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. In July 1992, the veteran was admitted to the emergency room at Eden Hospital with cardiac arrest and he passed away without regaining consciousness. Medical records from Dr. Johnson for the period from approximately April 1986 to June 1992 reflect that the veteran was diagnosed with coronary heart disease. It was noted that the veteran's cardiac problems dated back to 1942 when he was found to be hypertensive when drafted. In May 1986, the veteran underwent a coronary bypass operation. Treatment notes indicate that at times the veteran was able to walk up to one mile, but that at other times his walking and activity level were more limited due to his missing toes and pain in his feet. Treatment notes from Dr. Angotti dated from approximately 1986 to 1991 indicate that the veteran was experiencing pain on walking and standing. The veteran was referred to Dr. Caldwell who treated the veteran for pain in his knee in April and May 1989. In December 1989, the veteran was hospitalized at Samuel Merritt Hospital where he underwent right heart catheterization, retrograde left heart catheterization, selective coronary arteriography and selective arteriography of the saphenous vein grafts. The veteran subsequently underwent aortobifemoral bypass surgery. Pre and post- operative diagnosis was lower extremity ischemic disease secondary to arteriosclerosis. 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. In March 1991, the veteran was hospitalized with an acute pulmonary embolism that resolved and he was discharged after a five-day hospital stay. The appellant and her daughter testified at a hearing before a member of the Board in December 1998. Appellant essentially contended that the veteran's service-connected toe amputations affected his ability to exercise and to walk and also affected the circulation in his legs. The appellant and her daughter offered their opinion that the veteran's foot disabilities led to his heart disease and the record was held open so they could attempt to get a statement from the veteran's doctor regarding the etiology of his heart disease. A January 1999 statement from Dr. Angotti indicates that he treated the veteran for cerebrovascular disease and extensive coronary disease from 1986 until his death in 1992. It was his medical opinion that the veteran's loss of toes on both feet and subsequent circulatory problems more likely than not hastened his death. In October 2000, the RO sought an opinion regarding the likelihood of a relationship between the veteran's service- connected foot disabilities and his death due to heart disease. The opinion, by Dr. Riordan, indicates there was no confirmatory evidence of the history of hypertension or cardiovascular problems dating back to 1943. The opinion further states that a review of the June 1997 VA clinical symposium on cold injuries does not report a causative relationship of frostbite to the development of arteriosclerotic heart disease or peripheral vascular disease. Finally, the opinion states that the only minor effect of frostbite residuals would be impaired wound healing of the feet. The appellant's representative presented a September 2001 opinion from Dr. Bash, a neuro-radiologist. Dr. Bash offered his opinion that the veteran's bilateral toe amputations and foot disabilities made it very difficult for him to remain active or perform cardiovascular fitness exercises and that this inactivity caused the veteran's death from heart disease. He disagreed with the VA opinion and cited a study in support of his opinion, which indicated a significant increased incidence of ischemic heart disease among amputees. Based on the conflicting medical opinions, the Board sought a VHA opinion in January 2002. The Board requested that the claims folder be reviewed and an opinion 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 his death. In February 2002, a VHA opinion was received from the Chief Podiatry Section, Director of Surgical Residency. The podiatrist set forth the veteran's medical history, including his extensive history with lower extremity vasculopathy. He noted that although there were bilateral forefoot amputations there was no indication that the veteran required assistive devices prior to 1989 and that his ambulation status did not restrict him as a truck driver. In making a judgment regarding the long term effects of a transmetatarsal amputation, the examiner based his opinion on his own experience (performing several hundreds of these amputations) and reference to various publications. In considering whether the amputation accelerated the vascular decline secondary to the inability to walk, the podiatrist indicated that the reasons concerning the inability to walk (secondary to the functional demands of the amputation or pain) must be investigated. Regarding functional demands, the podiatrist indicated that transmetatarsal amputations are arguably the most successful lower extremity amputation due to their longevity, function, and minimal impact on the myocardium. He referenced the study cited by Dr. Bash and pointed out that most if not all of these studies were performed using patients with major amputations (defined as below/above knee amputations) or patients with systemic vasculopathy. He indicated that one would be hard pressed to find literature supporting similar death rates in traumatic amputees who did not have implications of vascular disease prior to their injury. The opinion went on to explain that the veteran's situation more closely resembled that of a traumatic amputee rather than vascular. With regard to pain, the podiatrist indicated that he researched the veteran's record closely and found complaints of cold sensations during the summer but did not see indications that he limited walking or activities due to pain prior to developing peripheral vascular disease. He indicated that the veteran was fully rehabable at the time of amputation due to the absence of ischemic cardiomyopathy and minimal to nonexistent functional demands of his amputations. He pointed out various forms of non-load bearing cross training modalities such as cycling, swimming, and rowing. He went on to discuss the pathological processes occurring with frostbite injuries and in conclusion, stated the following: It is my opinion that it is highly unlikely that the service-connected injury consisting of frostbite and bilateral forefoot amputations had resulted in this patient's demise. Furthermore, I feel that the patient's strong family history for vasculopathy, lifestyle as well as his "long-term heavy smoking history" were the major players in this unfortunate scenario. In April 2002, the appellant offered a follow-up opinion from Dr. Bash. He 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. He questioned the competence of the expert to offer an opinion since he was a podiatrist and not a cardiologist. He also objected to the idea that the veteran could have participated in alternative cardiovascular exercises such as swimming or cycling. He further pointed out that the podiatrist had incorrectly stated that the veteran had hypertension at the time of his induction into service. Analysis DIC is payable to a surviving spouse of a qualifying veteran who died from a service-connected disability. See 38 U.S.C.A. § 1310 (West 2002). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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. 38 C.F.R. § 3.312(a) (2004). A 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) (2004). 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) (2004). The veteran's Certificate of Death indicates that the immediate cause of death was ventricular dysrhythmia due to ischemic cardiomyopathy due to coronary atherosclerosis. No other significant conditions contributing to death but not related to the cause were noted. The veteran was not service-connected for the disabilities listed as the cause of his death and therefore, it is necessary to determine whether service connection should have been established. A service-connected disorder is one which was incurred or aggravated by active service, or in the case of certain diseases like cardiovascular renal disease, was demonstrated to a compensable degree within one year of the veteran's separation from active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2004). The veteran's service medical records are negative for any mention of heart disease and there is no evidence of diagnosed heart disease within one year of discharge from active military service. The Board acknowledges the reported history in various medical records that the veteran was hypertensive when drafted. However, this is not supported by the induction examination. Treatment records reveal that the veteran first suffered a heart attack in 1973, many years after service, and that he underwent treatment for heart disease and circulatory problems for the rest of his life. The record also does not contain any medical opinions directly relating the veteran's heart disease to his active service. The veteran clearly had significant service-connected disabilities and the appellant argues that the veteran's heart disease was related to his service-connected toe amputations and foot disabilities. She essentially is arguing that the amputations proximately resulted in the heart disease and/or that the amputations limited the veteran's ability to exercise and that because of the lack of cardiovascular activity, he subsequently developed heart disease. The Board acknowledges the February 2003 argument submitted in connection with the motion for reconsideration that 38 U.S.C.A. § 1154(b) is for application because the veteran was a combat veteran. The contention that the service-connected disabilities caused fatal heart disease is a claim for secondary service connection and thus, § 1154 is not for application. Because the treatment records do not discuss the issue of causation, the case essentially revolves around the various medical opinions of record. Dr. Angotti was one of the veteran's treating physicians and he indicated that the loss of the veteran's toes on both feet and subsequent circulatory problems more likely than not hastened his death. He did not offer any rationale or clinical evidence to support his opinion and he did not cite to any scientific studies in support of his opinion. A review of Dr. Angotti's treatment notes offers no indication that there was a causal relationship between the veteran's service-connected disabilities and his heart disease. Thus, the Board places little weight on this opinion. The opinion from Dr. Riordan indicated that residuals of cold injury would not have had a causative effect in developing heart disease and cited to the VA clinical symposium on cold injuries. In this respect, the opinion is considered probative. Dr. Riordan did not, however, address the question of whether the veteran's multiple toe amputations would have had effected his ability to exercise such that it caused heart disease. 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 heart disease. He cited to a study showing an increased incidence of heart disease in patients with amputations. VA regulations support a causal relationship between heart disease and lower limb amputations. Specifically, ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service- connected amputation or amputations. 38 C.F.R. § 3.310(b) (2004). The foregoing regulation resulted from a report made by the National Academy of Sciences (NAS). See 44 Fed. Reg. 50,339 (August 28, 1979). The NAS report showed that only unilateral above-the-knee amputations and amputations of both lower extremities result in a significant increase in the incidence of cardiovascular disease. Id. at 50,340. It is noted, however, that the amendment does not preclude further amendment if it is subsequently shown that other types of amputations also result in a significant increase in the risk of cardiovascular disease. In this regard, the amendment is not meant to be restrictive. Id. In the February 2003 argument in support of the motion for reconsideration, the veteran's service organization argued that based on the in-service operative report the veteran's amputation was analogous to a modified Syme's amputation and therefore, his death from heart disease comports with the NAS study. The Board has reviewed the veteran's service medical records in detail and finds no indication that the veteran's toe amputations were comparable to an amputation of the foot at the ankle joint. Therefore, the veteran's service- connected amputations do not fit within the purview of 38 C.F.R. § 3.310(b). With regard to the question of whether the veteran's service- connected disabilities contributed to his death (beyond the inability to exercise), the Board finds the NAS study and subsequent VA regulation highly probative and this clearly outweighs the unsubstantiated opinion provided by Dr. Angotti. With regard to the question of whether the veteran's service- connected toe amputations contributed to his death based on an inability to exercise, the Board finds the VHA opinion significantly probative. First, it was based on a longitudinal review of the veteran's medical history. The Board acknowledges that the podiatrist incorrectly noted that the veteran had hypertension upon entry into service. While this is not supported by the induction examination, it is reported in the medical history section of various outpatient records. Regardless, this statement does not affect the podiatrist's opinion regarding the impact of amputation on exercise, etc. Second, the podiatrist set forth adequate reasons and bases for his opinion that the veteran's amputations would not have limited his physical activity or ability to engage in any cardiovascular activity. He discussed in detail the functional demands of the forefoot amputation and cited to a medical study that found that traumatic amputees who sustain amputations such as those distal to the ankle joint experience walking speeds that are essentially normal and oxygen demands very close to normal. Third, the podiatrist obviously reviewed Dr. Bash's opinion and discussed the content of studies such as the one cited by Dr. Bash. The Board acknowledges the arguments that a podiatrist is not competent to discuss the ramifications of amputations on the cardiac system. On the contrary, the Board finds that a podiatrist is a proper and persuasive authority on the effects of toe amputations on the ability to ambulate and exercise. Further, the podiatrist indicated that he has performed several hundred of these amputations. The Board has considered the various opinions of Dr. Bash. These opinions are probative in the sense that they are based on a review of the veteran's records. Overall, however, Dr. Bash's opinion is assigned less probative value. He indicated that the relationship between amputations and death due to cardiovascular unfitness was well described in the literature and went on to paraphrase a study showing an increased incidence of heart disease in amputees. However, he did not discuss the study in detail and did not indicate what types of amputations led to such an increase in the death rate from cardiac disease. As pointed out by the VA podiatrist, this type of study was apparently focused on persons with major amputations and not on individuals who sustained only toe amputations. The cited study also does not appear to support Dr. Bash's opinion regarding the relationship between amputations and the ability to exercise. Further, the record does not support Dr. Bash's opinion that the veteran had severe ambulation dysfunction since 1945. The Board agrees the record contains medical evidence suggesting pain on weightbearing and that the veteran did experience difficulty walking. However, there are also outpatient records indicating that at times the veteran was able to walk a mile. Overall, the medical evidence suggests that the veteran did not need a prosthetic device and that his foot disabilities did not severely limit his ability to ambulate. In summary, at the time of his death the veteran was service connected for multiple foot disabilities including amputation of all of his toes bilaterally. There is no evidence of cardiovascular disease during service or within one year of discharge. The NAS study does not support a proximate relationship between the type of amputations the veteran had and the subsequent development of ischemic cardiomyopathy. Regarding the argument that the veteran's inability to exercise due to his service-connected disabilities resulted in cardiovascular disease, the Board finds the VHA opinion most persuasive. It is based on the record, the podiatrist's experience, and medical literature. The Board has reviewed the record in detail and concludes that the NAS study and the collective opinions of Dr. Riordan and the VA podiatrist are more persuasive than the opinions in support of the claim. The Board sympathizes with the appellant. However, as the preponderance of the evidence is against the claim for service connection for the veteran's cause of death, the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for the cause of the veteran's death is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs