Citation Nr: 1007299 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-12 475 ) 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: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran retired from active duty in February 1973 with more than 20 years of active service. He died on December [redacted], 1999. The appellant is his surviving spouse. The current appeal arose from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The appellant requested a Travel Board hearing. She asked that such hearing scheduled in May 2005 be cancelled and rescheduled. She failed to appear for the rescheduled hearing in June 2006. The case was remanded by the Board in October 2006 and in March 2009. FINDINGS OF FACT 1. The Veteran died in December 1999; the immediate cause of his death was cardiogenic shock due to acute myocardial infarction (MI) due to coronary artery disease (CAD); other significant conditions listed on his death certificate as contributing to death, but not resulting in the underlying cause, were hyperlipidemia and chronic obstructive pulmonary disease (COPD). 2. CAD was not manifested in service and the Veteran's primary death-causing disease is not shown to have been related to his service; hyperlipidemia and COPD were not manifested in service, and are not shown to have been related to the Veteran's service. 3. The Veteran's service-connected disabilities, postoperative degenerative disc disease of the cervical spine; migraine headaches; otosclerosis, postoperative myringtotomies, tympanoplasties and mastoidectomies, with otitis infection and bilateral tinnitus; psychophysiologic reaction; residuals of a bone graft at the right iliac crest donor site; bilateral hearing loss and chest wall muscle pain are not shown to have materially contributed to cause his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. 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 instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim. While she did not receive complete notice prior to the initial rating decision, June 2002, October 2006, and October 2007 letters provided certain essential notice prior to the readjudication of her claim. An April 2009 letter provided notice that complied with Hupp and explained the evidence VA was responsible for providing and the evidence she was responsible for providing. This letter, as well as the October 2007 letter also informed the appellant of effective date criteria. An August 2009 supplemental statement of the case (SSOC) readjudicated the matter after the appellant and her representative responded and further development was completed See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect is cured by the issuance of fully compliant notification followed by readjudication of the claim). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for a VA medical opinion in November 2006, with addendums in December 2006 and June 2009. The appellant has not identified any evidence that is outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service- connected disability casually shared in producing death; rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to contribute to death primarily due to unrelated disability. In the same category, there would be included service-connected disease or injuries of any evaluation but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected disability affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be presumed. 38 C.F.R. § 3.312(c)(3). It must be considered whether there is a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including cardiovascular disease) may be presumptively service connected if manifested to a compensable degree within a specified period of time following service discharge (one year for cardiovascular disease). 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, 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. The Veteran's STRs show that on several occasions while on active duty, he was seen for complaints of chest pain. In April 1971, he was referred for evaluation of a possible MI, after having had symptoms of a crushing chest pain and an associated faint spell. It was noted at that time that he had no other symptoms and no past history of cardiovascular disease. Serial electrocardiograms (EKG) and enzymes were all within normal limits and it was believed that he had chest wall pain of undetermined etiology. He continued to have complaints of chest pain into June 1971 and, in October 1971 was placed on a trial of nitroglycerin medication. His EKG studies and blood work continued to be within normal limits and, due to the unusual nature of the complaints, he was referred for cardiology evaluation and possible coronary angiography. In December 1971, the diagnosis was chest pain of unknown etiology, probably musculoskeletal, no evidence of arteriosclerotic heart disease. On examination for retirement from service, in November 1972, an EKG was normal and the pertinent impression was musculoskeletal chest pain, under control with Tylenol, no evidence of heart disease. March 1976 and August 1978 VA treatment records show that the Veteran continued to have episodes of musculoskeletal chest pain. In August 1978, it was noted that an EKG showed no acute changes. Chest X-rays in April 1989 were interpreted as showing borderline cardiomegaly, without evidence of failure or pneumonia. In November 1999, the Veteran was admitted to a private hospital with complaints of left shoulder pain and shortness of breath. In the field he was noted to be hypotensive, and evaluation in the emergency room demonstrated that he was having an anterior MI, which was secondary to a left main occlusion. He underwent four vessel coronary artery bypass grafting that was complicated by preoperative and postoperative cardiogenic shock. Postoperative course was marked by prolonged dependency on inotropic agents and an intraaortic balloon pump. Eventually discontinuance of the balloon pump was possible, but he remained on a ventilator in the Intensive Care Unit. He developed a pseudomonas pneumonitis for which he was treated, but continued to have respiratory failure and developed an altered mental status with an inability to move his right arm. He continued to exhibit congestive heart failure and cardiogenic pulmonary edema and, later in his course, had multiple organ system failure . Due to his extremely poor prognosis, the decision was made to withdraw support and he expired. The cause of death listed on the terminal hospitalization report was massive MI and continued cardiogenic shock, with multiple organ system failure. The Veteran died in December 1999. His death certificate lists the immediate cause of his death as cardiogenic shock, due to acute MI, due to CAD; other significant conditions listed as contributing to death, but not resulting in the underlying cause, were hyperlipidemia and COPD. The death certificate states that the onset of CAD was years prior to the Veteran's death. No autopsy was performed. At the time of the Veteran's death, service connection was in effect for postoperative degenerative disc disease of the cervical spine; migraine headaches; otosclerosis, postoperative myringtotomies, tympanoplasties and mastoidectomies, with otitis infection and bilateral tinnitus; psychophysiologic reaction; residuals of bone graft at the right iliac crest donor site; bilateral hearing loss; and chest wall muscle pain. In November and December 2006 and again in June 2009, a VA physician reviewed the Veteran's claims file. After these reviews, the physician rendered an opinion that the Veteran's presentations of chest pain in the 1970s were certainly not due to myocardial disease and were not related to his eventual cause of death. The CAD that led to the Veteran's death was not manifested during service or within one year following his separation from active duty, and does not warrant service connection on the basis that it became manifest in service (and persisted) or on a presumptive basis (under 38 U.S.C.A. § 1112). The appellant alleges that the chest pain the Veteran endured in service (for which service connection was established as "chest wall muscle pain" in actuality was a manifestation of the heart disease that ultimately led to his death. However, her own beliefs in this matter are not competent evidence. The diagnosis and likely etiology of a disability are generally medical questions. Because she is a layperson, the appellant lacks the training/expertise to offer a competent opinion in the matter. The significance of symptoms in service and/or their relationship, if any, to a later diagnosed cardiac disability are complex medical question beyond lay observation. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The only competent (medical opinion) evidence of record that specifically addresses the matter of a nexus between the CAD that caused the Veteran's death and his complaints of chest pain in service, and 2006 opinion and 2006 and 2009 addendums by a physician who reviewed the file, is against the appellant's proposed theory of entitlement as it indicates that the complaints in service reflected musculoskeletal, and not cardiac, disability. Because the opinion is by a physician who (by virtue of training and experience) is competent to offer the opinion, is based on a review of the record and familiarity with the factual evidence (as reflected by references in the opinion), and is supported by an explanation of rationale (including that cardiovascular disease was not clinically manifest until many years after service), it is probative evidence in this matter. Because there is no competent (medical) evidence to the contrary, it is persuasive. The record is unclear as to the extent that COPD and hyperlipidemia, listed on the death certificate as significant conditions contributing to death, actually did contribute to the Veteran's death. Regardless, such diseases were not manifested in service, and there is nothing in the record to suggest that they were somehow related to the Veteran's service. Consequently, there is no basis for finding that these contributory causes of death were service connected. Finally, there is no indication that the Veteran's service- connected disabilities, postoperative degenerative disc disease of the cervical spine; migraine headaches; ear disorders including otosclerosis, bilateral tinnitus and bilateral hearing loss; psychophysiologic reaction; and of a bone graft site of the right iliac crest in any way contributed to, or hastened the Veteran's death. In light of the foregoing, the Board finds that a preponderance of the evidence is against the appellant's claim and the reasonable doubt doctrine is not for application. Hence, the claim 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