Citation Nr: 1039288 Decision Date: 10/20/10 Archive Date: 10/27/10 DOCKET NO. 08-21 959 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from March 1948 to June 1949. The Veteran died on December [redacted], 2005, and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the benefit sought on appeal. In January 2009, a videoconference Board hearing was held before a Veterans Law Judge who retired subsequently from the Board. The Veteran was provided with another videoconference Board hearing before the undersigned Acting Veterans Law Judge in September 2010. A copy of the hearing transcript has been added to the record. 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 died on December [redacted], 2005. His death certificate stated that his cause of death was hepatic encephalopathy and end stage liver disease. Other significant conditions contributing to his death were acute renal failure, ileus, esophageal varices, and hypoglycemia. An autopsy was not performed. 2. At the time of the Veteran's death, service connection was in effect for bronchial asthma, evaluated as 60 percent disabling, and for cataracts, evaluated as 30 percent disabling. The total disability rating was 70 percent. 3. The competent evidence does not establish that the Veteran's death was causally related to active service or to a service- connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1131, 1137, 1310, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.311, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in April 2006, June 2007, June 2008, and April 2009 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. VA provided adequate notice of how disability ratings and effective dates are assigned. Certain additional VCAA notice requirements may attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. Generally, section 5103(a) notice for a DIC case must include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. In addition, the content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. Hupp v. Nicholson, 20 Vet. App. 1 (2006). The appellant was informed of the information and evidence necessary to substantiate a claim for DIC benefits in this case by June 2007 correspondence from VA. She also was advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The notice provided by the June 2007 correspondence is found to be sufficient pursuant to Hupp v. Nicholson, 21 Vet. App. 342, 352- 53 (2007). Thus, the Board may proceed with the issuance of a final decision in this case. Further, VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. The appellant was afforded a meaningful opportunity to participate in the adjudication of the claim and the claim was readjudicated in an October 2009 supplemental statement of the case. The evidence of record rebuts any suggestion that VA's efforts to provide notice prejudiced the appellant. In summary, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Criteria The appellant alleges that the Navy fogged the barracks the Veteran was assigned to with DDT on a regular basis while he was stationed in Guam. This aggravated or caused his asthma which weakened him or contributed to the hepatic encephalopathy and end stage liver disease which caused his death. She has offered supporting medical evidence from Scott K. Wright, M.D., and Craig N. Bash, M.D. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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 the contributory cause of death. Service connection will be determined by exercise of sound judgment, without recourse to speculation and after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran to include autopsy reports. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.312. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background As noted above, the Veteran died on December [redacted], 2005. The death certificate indicates that the immediate cause of death was hepatic encephalopathy and end stage liver disease. Other significant conditions contributing to acute renal failure, ileus, esophageal varices, and hypoglycemia. An autopsy was not performed. At the time of the Veteran's death, service connection was in effect for bronchial asthma, evaluated as 60 percent disabling, and cataracts, evaluated as 30 percent disabling. The total disability rating was 70 percent. The service records are silent for any hepatic encephalopathy, end stage liver disease, acute renal failure, ileus, esophageal varices, or hypoglycemia. These records reveal a pre-existing history of asthma which was aggravated during service. The Veteran subsequently was released from service due to his asthma. Post-service medical evidence does not show any treatment or diagnosis referable to hepatic encephalopathy, end stage liver disease, acute renal failure, ileus, esophageal varices, or hypoglycemia for many years after service. Thus, there is no continuity of hepatic encephalopathy, end stage liver disease, acute renal failure, ileus, esophageal varices, or hypoglycemia symptomatology demonstrated either by the documented clinical records or the appellant's statements. The file contains a January 2006 letter from Scott K. Wright, M.D., noting the Veteran had a long history of asthma which may have aggravated his other medical conditions and may have been a contributing factor in his death. Dr. Wright noted that the Veteran died of complications from end stage liver disease. In an April 2006 VA medical opinion, the claims file and medical records were reviewed. The VA examiner noted the Veteran's spouse contended that his death was related to his service connected bronchial asthma. He noted that the Veteran died of hepatic encephalopathy preceded by end stage liver disease. Additional diagnoses included acute renal failure, ileus, esophageal varices, and hypoglycemia. He also noted Dr. Wright's January 2006 comments. He further noted that no additional documentation of the hospitalization, hospice course, or autopsy results were available. The VA examiner stated that, given that the death certificate very clearly stated end stage liver disease with multisystem failure as etiology, the Veteran's demise was, in his opinion, "less likely than not likely that the asthmatic conditions aggravated any of his comorbid conditions to such an extent as to have contributed in any significant ways to this Veteran's death." The file also contains a December 2006 letter from Craig N. Bash, M.D., noting that he had reviewed the Veteran's medical records. Dr. Bash noted that the Veteran died of liver/acute renal disease and hypoglycemia among other things. The Veteran had been service connected for asthma for several years and had been treated with several types of steroids for his asthma. The Veteran also had a very high white cell count prior to his death most compatible with infection. Dr. Bash noted further that it was well known that steroids cause and exacerbate systemic infections and, "it is my opinion that this patient's long-term steroid use required by his service connected asthma likely exacerbated significantly his terminal infections." Dr. Bash further opined, "it is also my opinion that this patient's serious infection exacerbated his low blood glucose levels and exacerbated his acute renal and hepatic failure's." Dr. Bash concluded that "it is my opinion that this patient service connected disease (asthma) caused him to need to use steroids which in turn caused him to die from liver/acute renal failure and hypoglycemia-all of which are known secondary complications of his infection and are included on his death certificate. This opinion was consistent with Dr. Wright who stated that his asthma [steroids] may have aggravated his other conditions [liver /renal failure]." In an August 2007 VA medical opinion, the claims file and medical records were reviewed again. The VA examiner noted that the Veteran had been followed by the McHenry Medical Group. The Veteran had been diagnosed as having hepatitis C but could not undergo treatment due to his age and comorbidities. In an October 2003 biopsy he was diagnosed with liver cirrhosis that was stage IV fibrosis. An October 2005 notation stated the Veteran had decompensated cirrhosis manifested by ascites and he also was status-post an upper endoscopy with banding of the esophageal varices. He continued to decompensate and was admitted on December 7, 2005 and died on December [redacted], 2005. It was noted that the Veteran had been admitted to the hospital with severe hepatic encephalopathy and all of the treatment had failed. The VA examiner noted that the treatment records revealed that the Veteran's asthma was relatively stable over the past year and there was no evidence of any infections in the final discharge summary. Given that the death certificate stated that the Veteran died from hepatic encephalopathy secondary to end stage liver disease and that there was no comment as to any possible infection, the VA examiner stated, "it is in my opinion less likely than not the Veteran's service-connected asthma contributed to the cause of his death." Analysis The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death. The evidence reflects that the Veteran did not have hepatic encephalopathy and end stage liver disease in service, nor did it arise within any presumptive period, and hepatic encephalopathy and end stage liver disease were not otherwise related to service or to a service-connected disability. The medical opinions linking the Veteran's asthma to hepatic encephalopathy and end stage liver disease were received from Drs. Wright and Bash. There are no other medical opinions linking the cause of the Veteran's death to service or a service connected disorder. Dr. Wright in his January 2006 letter opined that the Veteran's asthma may have aggravated his other medical conditions and may have been a contributing factor in his death. In reading through Dr. Wright's medical opinion, the Board finds that it is insufficient to establish a link between the causes of the Veteran's death and his service connected asthma. He uses the term "may have" in his opinion. This is insufficient to establish a nexus between asthma and the causes of the Veteran's death. For example, terminology such as "might suggest," "pure speculation," and "conjecture" is too speculative to establish a nexus between the cause of the Veteran's death and asthma. The Court has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet. App. 237, 241 (1993). Dr. Wright's words suggest the possibility that asthma could have contributed to the Veteran's death, but his words are indicative of "pure speculation" and "conjecture." See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992) ("may or may not" language by physician is too speculative). The file also contains a December 2006 opinion from Dr. Bash who noted that the Veteran had been treated with several types of steroids over the years for asthma. He further noted that the Veteran had a very high white cell count prior to his death which was compatible with infection. He then stated that it was well known that steroids cause and exacerbate systemic infections and opined that the Veteran's long-term steroid use for his service connected asthma likely exacerbated significantly his terminal infections. He further expanded his opinion to include that the Veteran's "serious infection exacerbated his low blood glucose levels and exacerbated his acute renal and hepatic failure's. Dr. Bash also opined that the Veteran's asthma required the use of steroids which in turn caused him to die from liver/acute renal failure and hypoglycemia, "all of which are known secondary complications of his infection." The VA physicians in April 2006 and August 2007 noted that they had reviewed the entire claims file and the available medical records in detail. The VA physicians in August 2007 summarized noting that the treatment records revealed that the Veteran's asthma was relatively stable over the past year. Addressing the alleged relationship between the service connected asthma and the Veteran's alleged "terminal infections," he found that there was no evidence of any infections in the final discharge summary. The VA examiner concluded that, as the death certificate stated that the Veteran died from hepatic encephalopathy secondary to end stage liver disease, and that there was no comment as to any possible infection, it was less likely than not the Veteran's asthma contributed to the cause of his death. The VA physicians explained the reasons for their conclusions based on accurate characterizations of the evidence. Their opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Veterans Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Veterans Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board notes that Dr. Wright indicated that the Veteran's asthma may have aggravated his other medical conditions and may have been a contributing factor in his death. He did not offer any firm opinion, however. Dr. Bash based his opinions on an incorrect assumption that the Veteran died from terminal infections which were not actually shown by the final discharge summary. Accordingly, the Board finds that such medical evidence is not probative on the issue of whether the cause of the Veteran's death is related to active service. The opinions provided by Drs. Wright and Bash are outweighed by the contrary conclusions of the April 2006 and August 2007 VA physicians who explained that the death certificate stated that the Veteran died from hepatic encephalopathy secondary to end stage liver disease and it was less likely than not the Veteran's asthma contributed to the cause of his death. Thus, the Board finds that service connection for the cause of the Veteran's death is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the appellant is competent to report what she observed at any time because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding that lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran or an appellant are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the appellant has asserted that the Veteran's asthma contributed to or caused his death from liver disease. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran's asthma, which existed prior to service and was aggravated by service, did not contribute to or cause his death many decades later. The Board finds that the more recently-reported history of continued symptoms of liver disease caused by asthma is inconsistent with the other lay and medical evidence of record. Indeed, while the appellant now asserts that the Veteran's liver disease began in service as a result of his asthma, in the more contemporaneous medical history the Veteran gave at the service separation examination, he denied any history or complaints of liver symptoms. Specifically, the service separation examination report reflects that the Veteran was examined and his liver was found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). During his lifetime, the Veteran did not claim that symptoms of his liver disease disorder began in (or soon after) service. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements) These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (finding that Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the lay statements as to continuity of symptomatology and finds the current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the Veteran's previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, the Veteran's previous statements made for treatment purposes during his lifetime, and his own previous histories of onset of symptoms given after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs