Citation Nr: 1031267 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 08-30 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1941 to December 1945. He was awarded the Combat Infantryman Badge and the Purple Heart medal. The Veteran died in April 1992. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (the Board) on appeal of March and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. In her September 2008 substantive appeal [VA Form 9], the appellant requested a personal hearing before the Board. The appellant subsequently withdrew this request before a hearing was scheduled, specifically requesting that the appeal be forwarded to the Board as soon as possible. See a November 13, 2008 statement of the appellant's representative. Accordingly, the appellant's hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2009). In June 2009, the Board remanded the appellant's claim to the agency of original jurisdiction (AOJ) for further procedural development. Such was achieved. The AOJ readjudicated the appellant's claim in an October 2009 supplemental statement of the case (SSOC). The claims file was returned to the Board for further appellate review. Finally, in January 2010, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning whether the Veteran's cause of death was related to his military service. The Board has received the requested VHA opinion, which has been provided to the appellant. Issue not on appeal As was noted in the above-referenced June 2009 Board decision, the RO granted the appellant's previously-denied claim for an aid and attendance allowance in a September 2008 rating decision, effective March 6, 2008. To the Board's knowledge, the appellant has not disagreed with this assigned effective date. Accordingly, the issue is not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from November 1941 to December 1945. The Veteran was a combat veteran. 2. The Veteran died in April 1992. The death certificate lists the cause of death as congestive cardiac failure due to ischemic cardiomyopathy as a consequence of coronary artery disease. Renal failure was also listed as a contributing cause of death. 3. At the time of the Veteran's death, service connection was in effect for scars on his forehead and his right and left legs due to shrapnel wounds, each rated noncompensably [zero percent] disabling. 4. The medical evidence of record does not indicate or even suggest that a relationship exists between the Veteran's military service and his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall concerns As was noted in the Introduction above, the Board remanded the appellant's claim in June 2009 for further procedural development. More specifically, the Board instructed the AOJ to provide the appellant with a Veterans Claims Assistance Act (VCAA) notice letter that conformed to the requirements outlined in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The AOJ was then to readjudicate the Veteran's claim after an appropriate amount of response time. The AOJ sent the appellant a VCAA letter dated September 2, 2009, which included the notice requirement outlined in Hupp. The appellant did not respond to this letter. The AOJ subsequently denied the appellant's claim in the above-referenced October 2009 SSOC, and returned the claims folder to the Board for further appellate review. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), 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. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. 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) requires that notice to a claimant pursuant to the VCAA be provided "at the time," or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 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). In the case at hand, the record reflects that the originating agency provided the appellant with the notice required under the VCAA and under Hupp v. Nicholson, 21 Vet. App. 342 (2007), by letters mailed in March 2008 and September 2009. To the extent that the appellant may not have been provided with complete notice until after the initial adjudication, the Board finds that there is no prejudice to her in proceeding with the issuance of a final decision. Following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the appellant's claim in October 2009. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the Veteran's VA post-service medical treatment records, the Veteran's death certificate, and various lay statements have been associated with the Veteran's claims file. Neither the appellant nor her representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate her cause of death claim. The Board is also unaware of any such outstanding evidence. It appears from the record that the Veteran's service treatment records are missing. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court elaborated on the VA's responsibility to obtain a veteran's service treatment records. The Board finds, however, that no useful purpose would be served in remanding this matter for more development. In this case, the RO has attempted to locate the Veteran's service treatment records. The RO first submitted a request to the NPRC in March 1979, asking for the Veteran's complete medical record. In April 1979, the NPRC responded that there are no service treatment records on file, and that the Veteran's records were "fire related." See the April 10, 1979 Information Request Form. There is no indication that any of the Veteran's service treatment records still exist. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. So it is in this case. In any event, there is no suggestion that the service medical records would contain any information which would be significant to the outcome of this appeal. It is uncontroverted that the Veteran was wounded in action in France in August 1944. There is no suggestion that he was treated for cardiovascular, renal, or psychiatric disorders in service. As noted above, the Board obtained a VHA medical opinion in February 2010. The report demonstrates that the examiner reviewed the Veteran's medical history and rendered appropriate diagnoses and opinions based on the questions presented by the Board. Contrary to the appellant's recent contentions [see the August 6, 2010 Appellant's Brief], the Board finds that the VHA expert's medical opinions are adequately supported by clinical rationale. They will be discussed in more detail below. As such, the Board finds that VA's duty to assist with respect to obtaining additional medical opinions with respect to the issue on appeal have been met. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of this issue has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and nonprejudicial to the appellant. The appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2009). She has retained the services of a representative, and withdrew her request for a personal hearing. Accordingly, the Board will address the merits of the claim. Relevant law and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cardiovascular disease, when such is manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). In order to establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the veteran's death. See 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2009). 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. See 38 C.F.R. § 3.312(a) (2009). Analysis As has been explained earlier, the Veteran's service treatment records are missing and are presumed to have been lost in a July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the appellant's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the appellant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. As was discussed above, the loss of the Veteran's service treatment records, although regrettable, is not significant to the outcome of this decision. The Veteran died in April 1992, approximately 46 years after his separation from service, at the age of 68. The Veteran's death certificate lists the cause of death as congestive cardiac failure due to ischemic cardiomyopathy as a consequence of coronary artery disease. Renal failure was also listed as a significant condition contributing to death. No autopsy was performed. The appellant seeks service connection for the cause of the Veteran's death. In substance, she contends that the Veteran had posttraumatic stress disorder (PTSD) as a result of his in- service combat experiences, and that PTSD in turn caused the Veteran to develop his fatal heart disease. See the December 2009 Appellant's Post Remand Brief, page 1. The appellant has identified no other possible service-related cause of the Veteran's death. [The Board notes that at the time of his death in 1992 the Veteran was service connected for head and bilateral leg scars, each of which were rated noncompensably disabling. However, the medical records and the death certificate did not refer to any of these disabilities in discussing the Veteran's death, and the appellant has not contended that these disabilities were in any way related to the Veteran's death.] In order to establish service connection for death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. Cf. Hickson v. West, 12 Vet. App. 247, 253 (1999). There is no question that element (1) has been met. There also is no question that the Veteran died of heart disease. With respect to element (2), in-service disease or injury, a review of the evidence does not suggest that heart disease was present in service or within the one year presumptive period after service [i.e., by December 1946]. See 38 C.F.R. § 3.309(a). A letter from a private physician dated in May 1969 [approximately 24 years after the Veteran's separation from service] pertinently indicated that the Veteran's heart was "well within limits of normal to auscultation, palpation, percussion," and "P-2 normal, rhythm regular, rate about 80, tones and quality good." See a May 2, 1969 letter from Dr. S.F.H. It does not appear that the Veteran was initially diagnosed with arteriosclerosis until October 1975, or with Arteriosclerotic Coronary Artery Disease (ASCAD) until July 1979, more than thirty years following the Veteran's separation from service. See the Veteran's October 22, 1975 Physician's Report for Aid and Attendance; see also the July 24, 1979 VA Progress Note, page 5. Accordingly, in-service heart disease is not demonstrated. With respect to PTSD, the evidence of record similarly fails to demonstrate the presence of PTSD, or of any other acquired psychiatric disability in service. Significantly, no medical professional has diagnosed the Veteran with PTSD at any time following his separation from service in 1945 to the date of his death in April 1992, or at any time thereafter. The Veteran was diagnosed with anxiety in 1979 and 1980, and with depression in 1981. See August 22, 1979, April 24, 1980, and July 17, 1981 VA treatment reports respectively. Although the Veteran was also noted as having a history of nervousness, acknowledged by both the Veteran's physicians and his friends [see the July 24, 1979 VA Progress Note, page 6; see also the lay statements of E.G. and C.J.L. submitted in February 1980], there is no evidence of any in-service treatment for, or diagnosis of any psychiatric disability. The Board adds that the evidence of record dated subsequent to 1981 also fails to show that the Veteran was treated for, or diagnosed with any psychiatric disability. Finally, there is no evidence of record demonstrating that the Veteran had a renal disease in service, and the Veteran does not so contend. Concerning in-service injury, the appellant in essence contends that the Veteran's combat experiences constituted psychic injury which contributed to the Veteran's fatal heart disease. The record clearly demonstrates that the Veteran was a veteran of combat, having earned both the Combat Infantryman Badge and the Purple Heart during his service in World War II. The Board finds that element (2), in-service injury, is arguably met. The Board will therefore turn to crucial element (3), medical nexus. Prior to February 2010, there was no evidence of record addressing whether any connection could be identified between the Veteran's fatal heart or renal disease and his in-service combat experiences. As such, and per the request of the Veteran's representative [see the Appellant's Post-Remand Brief, page 3], the Board requested medical opinions from a VHA medical expert regarding the etiology of the Veteran's fatal heart condition. Specifically, the Board first asked the expert, Dr. L.B., to determine whether it was as likely as not that the Veteran's in- service combat stressors directly caused or contributed to the Veteran's fatal heart disease, heart failure, or renal failure. The Board then asked the expert to determine if the Veteran developed an acquired psychiatric disability, to include PTSD, as a result of his in-service combat stressors, and if so, whether it is was as likely as not that such disability caused or contributed to the Veteran's fatal heart disease, heart failure, or renal failure. In response to the first question, Dr. L.B. pertinently reported after a complete review of the Veteran's medical history that it "would be mere speculation for me to say [the Veteran's] in- service stressor led to heart disease and renal disease . . . ." In support, Dr. L.B. specifically cited to the approximate 50 year gap between the stressor occurrence and the Veteran's death, as well as the Veteran's prior history of hypertension and alcoholism which "could easily cause the heart failure and the renal failure." See the February 2010 VHA expert's report, page 1. Dr. L.B. also determined that although the Veteran likely had a stressor that would be severe enough to cause PTSD, based on a review of the Veteran's medical history, "it would be mere speculation for me to diagnose post traumatic stress disorder . . . ." Again, the expert reasoned that the only symptom of PTSD noted in treatment records from the time the Veteran separated from service in 1945 to the time of his death in 1992 was anxiety, and that there was crucially no mention that the Veteran experienced any other required PTSD symptomatology, to include intrusive thoughts, sleep disturbance, or nightmares. Without the benefit of an interview, the examiner could not diagnose the Veteran with PTSD without speculation. See the VHA expert's report, page 1. As noted above, no medical report of record indicates that the Veteran was ever diagnosed with PTSD. Finally, regarding whether the Veteran had any other psychiatric condition that could have caused or contributed to the Veteran's fatal heart or renal failure, Dr. L.B. pertinently indicated that he also could not resolve this question without resorting to speculation. He indicated that the Veteran's prior treatment reports "somewhat offhandedly" indicate that the Veteran had anxiety in 1979 and in the early 1980s, but that these notations where written by general physicians and not psychologists. Dr. L.B. acknowledged that people with anxiety or PTSD often abuse alcohol, but pertinently highlighted that simply because this is the case does not mean that the Veteran had a psychiatric disability that caused his heart disease, heart failure, or renal failure. Indeed, the expert noted that the Veteran had "so many contributing factors including high blood pressure and alcoholism." See the February 2009 VHA expert's report, page 2. The Court has instructed that, in order for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Contrary to the recent assertions of the appellant [see the August 6, 2010 Appellant's Brief, page 2], the Board finds that the VHA medical expert provided cogent and adequate rationale based on reliable principles, as to why he could not draw a conclusion as to the impact, if any, the Veteran's in- service stressors or claimed psychiatric disabilities had on the Veteran's subsequent development of his fatal conditions. Indeed, the expert specifically referenced other risk factors, to include a history of nonservice-connected hypertension and alcoholism, which could have contributed to the Veteran's fatal heart or renal failure. The expert also highlighted the approximate 50 year gap between the time the Veteran experienced his combat stressors and the time that he passed away in 1992. Further, the examiner could not diagnose the Veteran with PTSD because the evidence of record as a whole failed to reflect that the Veteran exhibited certain symptomatology generally associated with PTSD, such as nightmares, sleep disturbance, or intrusive thoughts. Indeed, by regulation the diagnosis of post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). It appears that the VHA expert could not render such a diagnosis due to the Veteran's lack of documented PTSD symptomatology found in the record. Thus, there is no medical evidence of record demonstrating a link between the Veteran's combat experience and the development of his fatal heart disease or renal failure. Further, the medical evidence of record also fails to demonstrate any relationship between the claimed PTSD, or any other psychiatric disability, and the Veteran's fatal conditions. Indeed, even if the Board were to concede that the Veteran developed an acquired psychiatric disability during his lifetime as a result of in- service combat experiences, the appellant's cause of death claim still lacks evidence demonstrating that such disability caused or contributed to the Veteran's heart disease or renal failure. The appellant has been accorded ample opportunity to present medical evidence in support of her claim. She has failed to do so. That is, she has presented no probative medical evidence indicating that the Veteran had PTSD, that any acquired psychiatric disability the Veteran may have had was in fact related to the Veteran's military service, or that the Veteran's fatal heart disease or renal failure was related to his service, or to any diagnosed psychiatric disability. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. The Court has held that "[t]he duty to assist is not always a one-way street. If [an appellant] wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In December 2009, the appellant's representative submitted a brief citing multiple independent medical studies that purportedly conclude that PTSD causes or contributes to heart disabilities among veterans. See the December 2009 Appellant's Post-Remand Brief, pages 1 and 2. Although medical treatise evidence can, in some circumstances, constitute competent medical evidence [see Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1)], the cited articles submitted by the appellant are of a general nature and do not contain any information or analysis specific to the appellant's case, or the Veteran's condition. As such, the treatise evidence submitted by the appellant is of no probative value. The Court has held on several occasions that medical evidence that is general in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board has fully considered the appellant's lay statements, as well as the lay statements of the Veteran's friends. The questions involved in this case, however, involve the etiology of a disability-namely, whether the Veteran's fatal conditions were due to in-service combat experience, or to a subsequently developed psychiatric disability to include PTSD. These questions require opinions from persons with medical expertise, as the answers cannot be ascertained through lay observation. Neither the appellant, nor the Veteran's friends have been shown to possess the requisite medical training or credentials needed to render a competent opinion as to these questions. Accordingly, the lay opinions attributing the Veteran's cause of death directly to service or to an acquired psychiatric disability do not constitute competent medical evidence and lack probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As outlined above, the competent evidence weighs against a finding that the disability is directly attributable to in-service combat experiences or to an acquired psychiatric disability incurred as a result of in-service combat experience. The Board is sympathetic to the appellant's loss of her husband, but it must rely on the competent medical evidence in making its determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) [Board is prohibited from making conclusions based on its own medical judgment]. In the present case, the competent medical evidence shows that the Veteran developed arteriosclerosis in October 1975, and ASCAD in July 1979, more than thirty years following the Veteran's separation from service, which ultimately led to his death. As for whether the competent evidence demonstrates that the Veteran's death was directly due to military service, or to a psychiatric disability caused by military service, the preponderance of the evidence is against such a finding. Therefore, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs