Citation Nr: 0813666 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-23 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho 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 ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is the surviving spouse of a veteran who served on active duty from October 1958 to February 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In July 2006 and September 2007, the Board referred the case to the Veterans Health Administration (VHA) for advisory medical opinions. In March 2008, the appellant and her representative submitted additional evidence that was not reviewed by the RO. In a March 2008 informal hearing presentation, they waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The veteran died in September 2002 at the age of 60. 2. During his lifetime the veteran had not established service connection for any disability. 3. The veteran's death certificate certifies that his immediate cause of death was post-cardiac arrest, resuscitated, due to ischemic heart disease, due to insulin dependent diabetes; other significant conditions contributing to his death were renal insufficiency and liver failure, post arrest. 4. The veteran's ischemic heart disease, insulin dependent diabetes, renal insufficiency and liver failure were not manifested in service; ischemic heart disease and insulin dependent diabetes were not manifested within one year after the veteran's discharge from service; and no disease that caused or contributed to cause the veteran's death is shown to have been related to his service. 5. A service-connected disability did not cause or contribute to cause the veteran's death. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1310, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the matter being addressed. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant was provided content-complying notice by letter in November 2002, prior to the initial adjudication of the claim in January 2003. The letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing. Although the November 2002 letter did not specifically inform the appellant to submit any pertinent evidence in her possession, it advised her of the evidence required to substantiate her claim, and that she should submit such evidence or provide the RO with the information necessary for the RO to obtain such evidence on her behalf. She has had ample opportunity to respond. While she was not advised of the criteria governing effective dates of awards, she is not prejudiced by lack of such notice (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as this determination does not address any effective date issues. Neither the appellant nor her representative alleges that notice has been less than adequate. Regarding VA's duty to assist, the veteran's service medical records and available post-service treatment records have been secured. VA's duty to assist is met. Furthermore, in March 2007 and November 2007 the Board obtained VHA medical advisory opinions in this matter. By May 2007 and December 2007 letters, the appellant and her representative were notified of the opinions and provided with copies. She was notified that she had 60 days (from the date of each letter) to submit any additional evidence or argument in support of her claim. In March 2008, she submitted additional argument and evidence in the form of medical opinions, along with a waiver of RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c). Accordingly, the Board will address the merits of the claim. II. Factual Background, Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service personnel records note that the veteran's military occupational specialty was welder/blacksmith. His service medical records are silent for complaints or findings related to heart disease, diabetes, renal insufficiency, or liver failure. Private treatment records note that the veteran was seen with unstable angina and had coronary artery disease diagnosed in 1981; the only risk factor noted was smoking. A private treatment record notes that the veteran began "very heavy" smoking at age 12 or 13; his father may have had heart disease. The veteran suffered a myocardial infarction in 1993. Thereafter, he developed diabetes and obesity. An October 2001 statement from Dr. L.W.G. notes the veteran's history of welding during his military service and his development of unstable angina in 1981. Dr. L.W.G. opined that the veteran's exposure to fumes during welding could not be excluded as having a role in his development of premature atherosclerosis. He further opined that the veteran's exposure to welding fumes could cause at least a 10 percent disability at the time of his discharge from service. During his lifetime, the veteran did not establish service connection for any disability. By rating decision in June 2002, the RO (in pertinent part) denied service connection for severe congestive heart failure. The veteran died in September 2002 at the age of 60. His death certificate lists the immediate cause of death as post- cardiac arrest, resuscitated, due to ischemic heart disease, due to insulin dependent diabetes. Other significant conditions contributing to the veteran's death were renal insufficiency and liver failure, post arrest. The appellant claims that the veteran's death-causing heart disease was due to his inhalation of welding fumes during his military service. In October 2002, Dr. D.G., the veteran's family physician, noted that there are many risk factors for ischemic disease, "but it is thought that some industrial exposure to welding health hazards while serving in the military may be contributory, both to [the veteran's] ischemic heart disease and the diabetes." In February 2003, Dr. D.G. opined that although there are many risk factors for ischemic heart disease, the veteran's exposure to welding fumes in service was the most significant contributing factor to the veteran's heart disease and ultimately, his death. However, in May 2004, Dr. D.G. stated that, although the veteran did work as a welder for 39 months during his military service, it was an overstatement of the evidence to say that exposure to welding fumes was the most significant contributing factor to the veteran's heart disease. A June 2004 statement from Dr. M.L.H. notes that the veteran's history as a welder was one of his numerous risk factors for the development of heart disease. He stated that "[t]he relative role of this exposure when compared to known risk factors is uncertain." An April 2005 statement from a VA cardiologist notes the veteran's long history of smoking as well as his diagnoses of diabetes and hyperlipidemia. The cardiologist opined that it is possible that the veteran's history of welding contributed to his coronary artery disease, but stated that he did not have the professional expertise to provide any further comment. A November 2005 VA medical opinion notes the veteran's history of alcohol use, smoking beginning at age 12 or 13, diabetes and obesity. It was also noted that the veteran's father died from heart problems at age 25. The physician noted that both smoking and welding are known to contribute to heart problems. However, the physician was unable to state whether the veteran's history of welding contributed to his development of ischemic heart disease and, ultimately, to his death, without resorting to speculation. In December 2005, the appellant submitted an excerpt from the International Journal of Occupational Environmental Health entitled "Welding and Ischemic Heart Disease" and a copy of an article from the American Heart Association entitled "Risk Factors and Coronary Artery Disease." The "Welding and Ischemic Heart Disease" article cited a study which found an increased mortality due to ischemic heart disease among welders in the 1970 and 1990 censuses. The "Risk Factors and Coronary Artery Disease" article noted the following major risk factors in the development of coronary artery disease: increasing age, male gender, heredity, tobacco smoke, high blood cholesterol, high blood pressure, physical inactivity, obesity and overweight and diabetes mellitus. Stress and too much alcohol were also noted to be contributing factors. Pursuant to the Board's referral of this case for a VHA medical advisory opinion, a VA cardiologist reviewed the veteran's claims files and responded to the following question posed by the Board: Is it at least as likely as not (a 50 percent or better probability) that the ischemic heart disease which was a cause of the veteran's death resulted from his exposure to welding fumes in service? In March 2007 the board certified cardiologist noted the veteran's history of hyperlipidemia, Type II diabetes mellitus, alcohol abuse (12 beers per day for the final 15 years of his first marriage) and tobacco abuse (1.5-2 packs per day from age 12 until age 52), and noted the medical opinions already of record. He also noted the medical literature regarding welding and coronary artery disease submitted by the appellant. He stated, "This limited data is suggestive (but not definitive) that welding is associated with an increased risk of heart disease." He also opined: After careful review of the medical records of the [veteran] and of the opinions of the physicians, I have come to the opinion that the [veteran's] death was largely secondary to the presence of the traditional, more established risk factors present. Although his 39 months spent in the service as a welder/blacksmith could have played a role, it most likely is minor (10-20%) and overshadowed by the more established risk factors present. (e.g [sic] tobacco abuse, diabetes and hyperlipidemia). Pursuant to the Board's referral of this case for a more definitive VHA medical opinion, a VA cardiologist reviewed the veteran's claims files and responded to the following question posed by the Board: Is it at least as likely as not (a 50 percent or better probability) that the veteran's ischemic heart disease which proved fatal in September 2002 was causally related to his exposure to welding fumes during military service? [The cardiologist was requested to comment specifically on the VA medical opinions and the private medical opinions, including by Drs. L.W.G., D.G. and M.L.H, that were already of record, as well as the reference materials provided by the appellant and her representative.] In the November 2007 opinion, upon reviewing the veteran's claims files, a board certified cardiologist of 29 years, noted his history of smoking from age 12 or 13 to age 53, along with a history of heavy alcohol intake. He also noted that the veteran's father died at age 25 of heart disease, although it was not clear whether this was ischemic heart disease. The cardiologist addressed all the medical opinions of record. Regarding the October 2001 opinion from Dr. L.W.G., he noted that this opinion was vague, and that no bases for the opinion were provided. Regarding the opinions provided by Dr. D.G., he noted that the October 2002 opinion was vague. The February 2003 opinion which deemed welding to be the most significant cause in the veteran's development of ischemic heart disease was "preposterous" and undermined Dr. D.G.'s credibility as a physician because he ignored the veteran's smoking and alcohol intake, much more important and proven factors in the development of ischemic heart disease. Regarding the opinion of Dr. M.L.H., this opinion was also deemed vague in that it did not state with certainty that the veteran's ischemic heart disease was causally related to his exposure to welding fumes. He noted that, in November 2005, the VA physician was unable to provide an opinion without resorting to speculation. Regarding the medical research materials submitted by the appellant, the consulting cardiologist noted that several studies had found some degree of association between welding and high cardiac mortality; however, an association does not provide a causal link. Moreover, the "Welding and Ischemic Heart Disease" article also noted that the prevalence of tobacco smoking is higher in welders than non-welders. He further noted that his own research of the OSHA website did not reveal any conclusion that welding contributes to ischemic heart disease; his own research of the National Institute for Occupational Safety and Health's website did not list welding among risk factors for heart disease. He found, therefore, that although a few reports may be suggestive, there is no clear evidence that exposure to welding fumes, per se, increases the risk of ischemic heart disease and cardiac death, even years after the exposure. The consulting cardiologist concluded: Because I don't believe it is clearly established that exposure to metal fumes from welding is a causative factor in ischemic heart disease, I don't accept the argument that this veteran's 39 months of welding should appropriately be considered evidence that the welding played even a minor role in his ischemic heart disease. . . . Therefore, in my professional opinion I do not think that it is at least as likely as not (a 50% percent [sic] or better probability) that the ischemic heart disease which proved fatal in September 2002 was causally related to his exposure to welding fumes during his military service. In a February 2008 opinion, Dr. D.G. noted that he had reviewed the veteran's claims file, and it was his opinion that the veteran's 39 month exposure to welding fumes during his military service was as likely as not a contributing factor in his death. Dr. D.G. noted the veteran's risk factors for coronary artery disease, including smoking, family history and hyperlipidemia, but opined that "this clearly accelerated form of coronary artery disease was in excess of what would have been anticipated for those risk factors." He opined that the role of welding fumes in the veteran's ischemic events "must be considered at least contributory because of the severity, early onset, and absence of more profound explanations for such a young man." He also noted that the veteran's many other risk factors (diabetes, hypertension and obesity) developed in the years subsequent to his first ischemic attack, and therefore could not be considered contributory. In a February 2008 opinion, the veteran's daughter, a registered nurse with experience in the surgical open heart arena, noted that the onset of the veteran's coronary artery disease was at a very young age. She stated that after reading several articles on the subject, she believes that the veteran's early onset of coronary artery disease was related to his exposure to welding fumes. She further stated that while she does not believe welding to be the sole cause, it was a contributing factor. In a March 2008 opinion, a family friend of the veteran, a registered nurse with experience in open heart surgery, stated that the veteran had early onset of advanced cardiac disease. To establish service connection for the cause of the veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as cardiovascular disease and diabetes mellitus, are presumed to have been incurred in service if they were manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Following a review of the record, the Board finds that the preponderance of the evidence is against the appellant's claim. The veteran's death certificate shows that the cause of death was post-cardiac arrest, resuscitated, due to ischemic heart disease, due to insulin dependent diabetes. Other significant conditions contributing to his death were renal insufficiency and liver failure, post arrest. The veteran's service medical records are silent for evidence of ischemic heart disease, diabetes, renal insufficiency, or liver failure. In addition, there is also no indication that either heart disease or diabetes was manifested to a compensable degree in the applicable presumptive period following the veteran's discharge from active duty. In fact, as noted above, contemporaneous medical evidence of record is silent for these disabilities until many years after the veteran's military service. Moreover, following a review of the veteran's claims folder in November 2007, a VA board certified cardiologist with 29 years of experience opined that it is not at least as likely as not that the ischemic heart disease which proved fatal to the veteran in September 2002 was causally related to his exposure to welding fumes during his military service. The VA cardiologist pointed to the presence of other proven factors in the development of ischemic heart disease, namely the veteran's history of smoking from age 12 or 13 to age 53, his history of heavy alcohol intake, and a family history of heart disease (specifically, his father who died at age 25 of heart disease). The VA physician specified additional reasons for his conclusion, including the lack of definitive scientific proof to clearly establish that exposure to metal fumes from welding is a causative factor in ischemic heart disease and the number of years between the veteran's exposure to welding fumes and his diagnosis of heart disease, and framed his conclusion in terms of medical certainty, as noted above. The Board finds the November 2007 opinion more persuasive than those provided by the other VA and private physicians as noted above. Initially, the Board notes that neither the November 2005 VA physician's statement nor the March 2008 private nurse's statement includes an opinion as to whether the ischemic heart disease which was a cause of the veteran's death resulted from his exposure to welding fumes in service. In addition, the October 2001 Dr. LW.G. opinion, the October 2002 Dr. D.G. opinion, the June 2004 Dr. M.L.H opinion, the April 2005 VA opinion and the March 2007 VHA opinion are all speculative ("could cause," "may be contributory," "[t]he relative role of this exposure . . . is uncertain," "it is possible," and "could have played a role") in nature. The Court has held that medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The February 2008 opinion from the veteran's daughter (a registered nurse) notes the onset of his coronary artery disease at a very young age. After reading several articles on the subject, she maintains that the veteran's exposure to welding fumes was a contributing factor to his early onset of coronary artery disease. However, unlike the November 2007 VHA expert, she did not discuss the validity of the medical studies upon which she relies. Nor did she address the veteran's other (and better known) risk factors for the development of heart disease. Regarding the remaining opinions by Dr. D.G., although he opined in February 2003 that the veteran's exposure to welding fumes in service was the most significant contributing factor to his heart disease and his death, in May 2004 he amended his opinion, conceding that it was an overstatement of the evidence to say that exposure to welding fumes was the most significant contributing factor to the veteran's heart disease. Then, in February 2008, he stated unequivocally that the veteran's 39 month exposure to welding fumes during his military service was as likely as not a contributing factor in his death. He noted the veteran's other risk factors for coronary artery disease, including smoking, family history and hyperlipidemia, but opined that "this clearly accelerated form of coronary artery disease was in excess of what would have been anticipated for those risk factors." However, Dr. D.G. did not explain the 19 year interval between the veteran's exposure to welding fumes and his initial diagnosis of heart disease; did not address the November 2007 VHA opinion against the appellant's claim; and did not cite any medical studies linking welding fumes to the onset of heart disease. Rather, he opined that there was a link essentially because of an "absence of more profound explanations for such a young man." Notably, Dr. D.G. is a family physician, whereas the November 2007 VHA opinion- providing physician is a board certified cardiologist. As the preponderance of the evidence is against this claim, it must be denied. ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs