Citation Nr: 1010643 Decision Date: 03/19/10 Archive Date: 03/31/10 DOCKET NO. 08-02 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The Veteran served in the Special Philippine Scout from May 1946 to July 1949. The appellant is claiming benefits as surviving spouse of the Veteran. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2006 rating decision of the VA Regional Office (RO) in Manila, the Republic of the Philippines. This case was remanded by the Board in May 2009 for further development. FINDINGS OF FACT 1. The Veteran died in May 2006. The immediate cause of death was respiratory failure, antecedent cause chronic obstructive lung disease and underlying cause community acquired pneumonia (CAP). Nasal polyps were listed as other significant conditions contributing to death. 2. At the time of death, the Veteran was service connected for pansinusitis with bilateral nasal polyps and bilateral hearing loss. 3. The evidence is sufficient to establish that a service- connected disability contributed substantially or materially to the cause of the Veteran's death. CONCLUSION OF LAW A disability incurred in or aggravated by active service contributed substantially or materially to death. 38 U.S.C.A. §§ 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA by letter dated in June 2009. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held, inter alia, that in the context of a claim for service connection for the cause of a veteran's death for the purpose of Dependency and Indemnity Compensation (DIC) benefits, the VCAA notice must include: (1) a statement of the disabilities, 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 disability; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disability not yet service connected. Hupp, 21 Vet. App. at 352-53. The Board finds that the June 2009 letter afforded the appellant such notice. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In connection with the current appeal, an appropriate opinion has been rendered and available service records have been obtained. We also note that the VA opinion was adequate. The examiner reviewed the history, established clinical findings and presented reasons for the opinion. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained or requested. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Summary Service treatment records reveal normal lungs. Medical records reveal an August 2000 hospitalization for CAP II. It was noted that the condition started three days ago. In a July 2001 discharge summary, a final diagnosis was given of chronic obstructive pulmonary disease (COPD), pneumonia and acute maxillary sinusitis. In January 2004, the Veteran was admitted for CAP III resolving and COPD. In a May 2004 medical opinion, Dr. A noted that the Veteran was suffering from a disease complex composed of allergic rhinitis, nasal polyposis and asthma, with concomitant sinusitis. He noted that COPD usually appears in old age and that in this case the COPD may be predominantly of bronchial type. Dr. A stated that it may be concluded that the increased pulmonary resistance in the Veteran has connection to his nasal obstructions due to bilateral nasal polyps, which he presently has. Dr. A related that it could be safely concluded that the following conditions are service connected, pansinusitis and/or recurrent rhinosinusitis and recurrent nasal polyposis. He noted that asthma, COPD and bronchiectasis are considered related to the above conditions, which are both contributory, directly or indirectly, to the latter's development. He further noted that the predisposition to pneumonia, due to impaired tracheobronchial clearance as explained above, serves as an indirect consequential result of all the above conditions. The Veteran died in May 2006. The immediate cause of death was respiratory failure, antecedent cause chronic obstructive lung disease, and underlying cause CAP. Nasal polyposis was listed as other significant conditions contributing to death. At the time of the Veteran's death, service connection was in effect for pansinusitis with bilateral nasal polyps, rated as 50 percent disabling and bilateral sensorineural hearing loss, rated as 40 percent disabling. In May 2006, Dr. Z related that the Veteran's son came to him and asked for a death certificate. Dr. Z stated that he told the Veteran's son that the death was an unattended death. It was noted that records showed that the Veteran was confined in May 2006 for diarrhea and that the Veteran's son wanted a cause of death which would be near the approved illness of nasal polyposis. In August 2006, Dr. Z related that he rendered a diagnosis on the Veteran's cause of death as respiratory failure, chronic obstructive lung disease with community acquired pneumonia and a contributory condition nasal polyposis. He related that the cause of death was based on the diagnosis given by the attending physician, Dr. N, and the history given by the Veteran's immediate relative. Dr. N submitted a statement noting a diagnosis of respiratory failure, chronic obstructive lung disease with CAP, high risk. In September 2009, a VA compensation and pension opinion was issued. The VA examiner opined, upon reviewing the Veteran's medical records, that the condition/disability COPD/pneumonia is as least as likely as not (50/50 probability) caused by or a result of pansinusitis with bilateral nasal polyposis. The VA examiner noted that it is quite apparent that the Veteran had an overwhelming problem with his nasal polyposis and that because of the Veteran's poorly controlled recurrent nasal mass he had numerous bouts of sinusitis and often associated pneumonia. The examiner noted that this was coupled with the pulmonary problem of the Veteran which is COPD and asthma. The VA examiner opined that the Veteran's nasal problem (polyposis and sinusitis) contributed substantially for the Veteran to develop pneumonia but not COPD. He noted that COPD is a problem with hypertrophy of the mucous producing glands present in the airways. This was noted to also be a probable reason for the Veteran to develop pneumonia considering his advanced age. The examiner noted that the problem caused by having nasal polyposis is primarily obstruction both for the airway and passage of mucous. He noted that the problem in the airway might lead to aggravation of his intrinsic COPD problem while the mucous production will develop into pneumonia if not adequately controlled with antibiotics. Legal Criteria The veteran who had a service-connected disability that was the principal or contributory cause of his death, which occurred after December 31, 1956, may be eligible for VA death benefits. See 38 U.S.C.A. § 1310(a); 38 C.F.R. § 3.312(a). In order to establish service connection for the cause of the veteran's death, the evidence must establish that the service-connected disability was either the principal or a contributory 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 to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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 (West 2002); 38 C.F.R. § 3.312 (2009). The debilitating effects of a service- connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may be granted for any disease 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) (2009). Analysis The appellant has appealed the denial of service connection for the cause of death. Specifically, the appellant maintains that the Veteran's service-connected nasal polyps contributed to his respiratory failure and his death. After careful review of the record, the Board finds that service connection for cause of death is warranted. In this regard, the Board notes that, at the time of death, the Veteran was service connected for pansinusitis with bilateral nasal polyps and bilateral hearing loss. The Veteran died in May 2006. The death certificate cited the immediate cause of death was respiratory failure, antecedent cause chronic obstructive lung disease and underlying cause community acquired pneumonia (CAP). Nasal polyps were listed as other significant conditions contributing to death. Initially, the Board notes that although the death certificate cites nasal polyps as other significant condition contributing to the cause of death, such was based on a lay report of the Veteran's son and not medical evidence. Dr. Z related that he rendered a diagnosis on the Veteran's cause of death based on the diagnoses given by the attending physician, Dr. N, and the history given by the Veteran's immediate relative. Dr. Z indicated that the Veteran's son wanted a cause of death which would be near the approved illness of nasal polyposis. The Board notes that Dr. N diagnosed respiratory failure, and chronic obstructive lung disease with CAP, high risk. Nasal polyps were not listed in his diagnosis. The Board notes that Dr. Z indicated that the basis of the addition of nasal polyps to the death certificate was based on a lay report provided by the Veteran's son, not medical documentation, observation by him or any clinical findings. Although the person filling out the death certificate is presumed to have some level of competence, this person established that the section of the death certificate noting nasal polyps as a contributing cause of death was based on the medically unsupported report of the Veteran's son. As such, the Board finds that the death certificate, citing nasal polyps as a contributory cause of death, is of little probative value in resolving the issue presented. However, the Board finds that the evidence presented as a whole sufficiently establishes that the Veteran's service connected pansinusitis with bilateral nasal polyps played a role in the events producing death. In this regard, the Board finds that the September 2009 VA examiner's opinion and the May 2004 medical opinion rendered by Dr. A show that the service connected pansinusitis with bilateral nasal polyposis contributed substantially or materially to the conditions which caused the Veteran's death. The Veteran died of respiratory failure to include COPD and CAP. The September 2009 VA compensation and pension opinion examiner opined that the condition/disability COPD/pneumonia is as least as likely as not (50/50 probability) caused by or a result of pansinusitis with bilateral nasal polyposis. The examiner noted that the problem caused by having nasal polyposis is primarily obstruction both for the airway and passage of mucous. He noted that the problem in the airway might lead to aggravation of his intrinsic COPD problem while the mucous production will develop into pneumonia if not adequately controlled with antibiotics. The Board further notes that, in the May 2004 medical opinion, Dr. A stated that it may be concluded that the increased pulmonary resistance in the Veteran has connection to his nasal obstructions due to bilateral nasal polyps and that asthma, COPD and bronchiectasis are considered related to the appellant's service connected disability. Here, the Board is presented with two medical opinions which show a correlation between the Veteran's service connected disability and COPD and pneumonia, two processes which were listed as the antecedent cause and underlying cause of the Veteran's death. The evidence is sufficient to establish that it is at least as likely as not that a service-connected disability contributed substantially or materially to the cause of the Veteran's death. Thus, as there are opinions of record that support the existence of a relationship between the service connected disability and the fatal processes that lead to death, the evidence supports the claim. In reaching this determination, the Board notes that the AOJ did not accurately report the favorable evidence and did not point to any negative evidence in the record. In fact, the AOJ provided no reasoning for the rejection of the evidence. ORDER Service connection for cause of death is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs