Citation Nr: 1126575 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 08-23 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Kenneth E. Orrock, Attorney ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active military service from June 1946 to March 1947, April 1948 to July 1952, October 1953 to October 1956, and July 1958 to January 1972. The Veteran died on August [redacted], 2007. The appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. This matter was previously before the Board in September 2009 when the Board denied the claim. The appellant appealed the September 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2010, the Court vacated the Board's September 2009 decision with regard to entitlement to service connection for cause of the Veteran's death, and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). (That portion of the Board's decision denying entitlement to dependency and indemnity compensation pursuant to 38 U.S.C.A. § 1318 was not disturbed, and the appellant abandoned any appeal of that issue). In January 2011, the Board remanded the claim for additional development. The Board finds that the RO substantially complied with the mandates of the January 2011 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died in August 2007; the amended death certificate lists the immediate cause of death as spontaneous parenchymal hemorrhage as a consequence of natural causes; other significant conditions contributing to his death, but not resulting in the underlying cause of death include Coumadin therapy for anti-coagulation. 2. At the time of the Veteran's death, he was in receipt of a total (100 percent) rating for compensation purposes, due to his service-connected intervertebral disc syndrome with sciatic neuritis of the lumbar spine; nephropathy associated with Type-II diabetes mellitus; adenocarcinoma of the prostate; right and left lower extremity neuropathy; tinnitus; Type-II diabetes mellitus; coronary artery disease; defective hearing; and erectile dysfunction. 3. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that service-connected disability was either the principal or a contributory cause of the Veteran's death. CONCLUSION OF LAW The cause of the Veteran's death was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008). The United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. The Court held that in the context of a claim for cause of death benefits, 38 U.S.C.A. § 5103(a) notice 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 cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Letters dated in October 2007 and December 2008 fully satisfied the duty to notify provisions of Quartuccio and Hupp. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; Hupp, 21 Vet. App. at 352-53. The December 2008 letter informed the appellant of the disabilities for which service connection had been established during the Veteran's lifetime. Although the December 2008 letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to her, since she was subsequently provided adequate notice, she was provided time to respond with additional argument and evidence and the claim was readjudicated and supplemental statements of the case (SOC) were provided to the appellant in January 2009, April 2009, and March 2011. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, any questions as to effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist The Board concludes VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and opinion. Records of the Veteran's terminal hospitalization at Rapid City Regional Medical Center emergency room have been associated with the claims file. The VA medical records requested in the January 2011 remand, cited by a February 2008 VA physician in her report, have been associated with the claims file, in compliance with the remand order. See Dyment, 13 Vet. App. at 146-147; Stegall, 11 Vet. App. at 271. Additionally, the claims file contains the appellant's own statements in support of her claim. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The appellant was afforded a VA medical opinion as to whether the Veteran's cause of death can be directly attributed to service or to his service-connected disabilities in February 2008. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2008 VA opinion is adequate. The February 2008 opinion indicates that the Veteran's claims file was reviewed and that the reported medical history considered by the examiner was consistent with that contained in the claims folder. As noted above, the VA medical records reviewed by the examiner have been associated with the claims file. Further opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the Veteran's cause of death may be associated with the Veteran's military service or service-connected disabilities. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria According to VA law and regulation, service connection may be granted for disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2005); 38 C.F.R. § 3.303 (2010). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic conditions will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309. 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. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). For a service-connected disability to be considered the primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. See 38 C.F.R. § 3.312(b). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). The VA will give due consideration to all pertinent medical and lay evidence in evaluating a claim for death benefits. Lay evidence may be competent and sufficient to establish a diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson 92 F.3d 1372 (Fed. Cir. 2007)). Service-connected diseases or injuries involving active processes affecting vital organs 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 that primarily caused death. See 38 C.F.R. § 3.312(c)(3). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. See 38 C.F.R. § 3.312(c)(4). III. Analysis The Veteran's death certificate reflects that he died in August 2007 due to: (Part 1) spontaneous parenchymal hemorrhage as a consequence of a natural causes; and (Part 2) that the Veteran was on Coumadin therapy for anti-coagulation. No autopsy was performed. At the time of the Veteran's death, the Veteran was service-connected for: intervertebral disc syndrome of the lumbar spine with sciatic neuritis, rated as 60 percent disabling; nephropathy associated with Type-II diabetes mellitus, rated as 60 percent disabling; adenocarcinoma of the prostate, rated as 40 percent disabling; right and left lower extremity neuropathy, rated as 10 percent disabling per extremity; tinnitus, rated as 10 percent disabling; Type-II diabetes mellitus, rated as 10 percent disabling; coronary artery disease, rated as 10 percent disabling; defective hearing, rated as noncompensable; and erectile dysfunction associated with adenocarcinoma of the prostate, rated as noncompensable. By a rating decision dated in May 2002, the Veteran was awarded a total rating for compensation purposes based on individual unemployability (TDIU), effective from July 1, 1999 to October 12, 1999. A combined disability evaluation of 100 percent was assigned from October 12, 1999. The medical evidence of record indicates that the Veteran's spontaneous parenchymal hemorrhage was first manifested many years after his service in the military ended. See Savage v. Gober, 10 Vet. App. 488 (1997) (requiring medical evidence of chronicity and continuity of symptomatology after service). In this regard, the Board points out that the Veteran's parenchymal hemorrhage occurred in 2007, approximately 35 years after his discharge from service. Additionally, a November 1971 separation examination report indicates that the appellant's head, face, neck and scalp, heart, and vascular system were normal. August 2007 Emergency Department records from Rapid City Regional Hospital reflect that the Veteran had a very large intraparenchymal and intraventricular bilateral hemorrhage with massive shift. The records indicate that the Veteran fell in a store and was transferred to the VA emergency room. He lost consciousness while being transferred to Rapid City Regional Hospital. A Discharge Summary reflects that the diagnoses of death were a large parenchymal cerebral hemorrhage in the right hemisphere, which decompressed both lateral ventricles, and chronic anticoagulation with Coumadin. There is no there is no clinical medical nexus evidence of record relating his parenchymal hemorrhage to the Veteran's service in the military, or any service-connected disability. The appellant submitted letters from two physicians who treated the Veteran in August 2007 at Rapid City Regional Hospital. In an October 2007 letter, B.A.S., M.D., an Emergency Physician at Rapid City Regional Hospital, stated that she believed the intercranial hemorrhage caused the Veteran to fall. She noted that she did not have any way to prove this for sure, but that it would be her clinical opinion per the history. In a July 2008 letter, T.G.O., M.D., a neurosurgeon at Rapid City Regional Center Emergency room, stated that he would disagree most vigorously with the coroner's alleged conclusion that the death was due to the "accident." He stated that the fall at the store was a minor "red herring" consequent to the hemorrhage. Dr. T.G.O. noted that this sort of hemorrhage is not infrequent in the elderly. He noted that it could have been caused by an aneurysm or by a disease causing a deposit and thereby a weakening of the arterial wall. Dr. T.G.O. stated that the Coumadin may also have played a contributory role. The Veteran's private treatment records reflect that he was put on Coumadin (warfarin) in 2003. An October 2003 Rapid City Regional Hospital discharge summary indicates that the Veteran was hospitalized for probable right hemispheric ischemic infarct, with left deficit, hypertension, coronary artery disease, with previous myocardial infarction, a history of insulin-dependent diabetes, and possible cavernous hemangioma in the skull region. The record indicated that the Veteran had a heavy atherosclerotic burden on the descending aorta with spontaneous echo contract that could be a source of embolic stroke. The record reflects that the Veteran was put on Coumadin during the course of his stay, to try and decrease the risk of further embolic events. Another October 2003 Rapid City Regional Hospital discharge summary indicates that the Veteran had a known history of coronary artery disease and that he had stenting of his left atrial dimension. The record indicates that he subsequently had a cerebrovascular accident felt to be related to his atherosclerotic disease of the aorta. He was started on Coumadin at that time. Another October 2003 Rapid City Regional Hospital record also reflects that the Veteran had a history of coronary artery disease, and noted that they would continue his Coumadin. The VA obtained a medical opinion in February 2008, wherein the VA physician found that the Veteran's service-connected disabilities did not, in any way, cause or contribute to his death from a parenchymal hemorrhage. Specifically, the VA physician concluded the Veteran's death from an intracerebral hemorrhage, as confirmed by a CT scan, was more than likely caused by his nonservice-connected hypertension. The VA physician based his opinion on the location of the hemorrhage, the Veteran's longstanding and less than optimally controlled hypertension, and the fact that hypertension is a major risk factor for this type of hemorrhage. The VA examiner noted that it is at least as likely as not that the intracranial hemorrhage was spontaneous and led to the fall and not the other way around. The VA physician noted that the Veteran's hypertension placed him at risk for such a hemorrhage, and that neither his service-connected diabetes mellitus nor coronary artery disease was associated with cerebral hemorrhages. As noted above, the letter from Dr. T.G.O. and the Veteran's death certificate indicate that Coumadin may also have played a contributory role. The February 2008 VA physician specifically addressed this issue, noting that the Veteran's anticoagulation therapy was not likely to have caused his cerebral hemorrhage, but, rather, to have aggravated the bleed. In this regard, the VA physician further opined that a review of the Veteran's records did not show that an anticoagulant was used to treat a service-connected disability. The February 2008 VA physician noted that the Veteran started the anticoagulation with warfarin (Coumadin) in the fall of 2003 when he was hospitalized at Rapid City Regional Hospital after having an apparent stroke from which he recovered fairly well. The VA physician noted that according to the records, warfarin was used in part because of some atrial fibrillation in 2003, and in part because of a presumed embolic cause of the 2003 stroke. The VA physician noted that diabetes is not a direct cause of atrial fibrillation. Although coronary artery disease can be associated with atrial fibrillation in the setting of acute myocardial infarction or heart failure, the VA physician noted that neither of these appear to have been problematic at the time the Veteran was started on warfarin. The VA physician noted that the records available did not show that atrial fibrillation was a chronic or recurrent problem. The VA physician opined that it is therefore less than likely that the diabetes or coronary artery disease led to any atrial fibrillation and to the use of warfarin. In regard to the atherosclerosis of the descending aorta described in 2003, the VA physician noted that age, hypertension, smoking, hyperlipidemia, and atherosclerotic disease in other vascular beds are risk factors. The VA examiner noted that atherosclerotic disease of the descending aorta would not be a source of emboli to the cerebral circulation, but rather to the peripheral circulation. Thus, it was less than likely that the Veteran's diabetes was a factor in the decision to use warfarin in 2003. In summary, the VA physician opined that the records do not show that the Veteran's diabetes, coronary artery disease, or other service-connected conditions caused, contributed to, or lent assistance to his death. The appellant contends that the Veteran's service-connected disabilities caused and/or contributed to his death from parenchymal hemorrhage. She specifically contends that his service-connected diabetes mellitus and/or service-connected coronary artery disease contributed to his death. (See May 2008 letter). While the appellant is competent to report her observations, the Board does not find that the appellant is competent to opine as to an etiological relationship between the Veteran's service-connected disabilities and his fatal parenchymal hemorrhage. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds that the probative value of any such opinion is outweighed by that of the February 2008 VA physician. The VA physician has education, training and experience in evaluating the etiology of a parenchymal hemorrhage. There is no evidence that the appellant has the same level of medical expertise. Moreover, the opinion provided by the February 2008 VA physician is probative because the physician provided a detailed rationale and explanation for the opinion provided. The VA physician reviewed the appellant's claims folder, including his death certificate, terminal hospitalization records, and private and VA medical records. The VA physician opined that the Veteran's service-connected disabilities did not, in any way, cause or contribute to his death from a parenchymal hemorrhage. The VA physician specifically considered whether the Veteran's diabetes mellitus and/or coronary artery disease may have contributed to the hemorrhage. Significantly, he also considered whether the Veteran was taking Coumadin due to a service-connected disability. The Board has reviewed the medical records relied on by the VA physician and finds his statements consistent with the evidence of record. Although Dr. T.G.O. indicated that the Coumadin may have played a contributory role in the Veteran's death, he did not indicate that the Veteran was taking Coumadin for a service-connected disability or relate the parenchymal hemorrhage to the Veteran's service in the military, or any service-connected disability. As noted above, the October 2003 Rapid City Regional Hospital record reflects that the Veteran was put on Coumadin during the course of his stay, to try and decrease the risk of further embolic events. The February 2008 VA physician found that it was less than likely that the diabetes or coronary artery disease led to any atrial fibrillation and to the use of warfarin (Coumadin). As noted above, there are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability 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)(3), (4). The tenets of this rule clearly apply in the present case. There is no indication that the appellant had a service-connected disability that affected a vital organ and was of such severity as to have a material influence in accelerating death. The Board therefore finds that service connection for the cause of the Veteran's death is not warranted. In sum, a preponderance of the evidence of record fails to demonstrate that the Veteran's cause of death, the parenchymal hemorrhage, was related to his service in the military, or any service-connected disability. The evidence also failed to demonstrate that the Veteran was on Coumadin therapy for a service-connected disability. The Board acknowledges the sincerity of the appellant's beliefs that the Veteran death was somehow attributable to his service in the military. However, there is no persuasive medical evidence of record supporting this allegation. As a layperson, the appellant does not have the necessary medical training and/or expertise to make this determination, herself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the February 2008 VA opinion to be highly probative and supported by a thorough rationale. The February 2008 VA physician found that that the Veteran's service-connected disabilities, including his service-connected diabetes and coronary artery disease, did not cause or contribute to his cause of death. Thus, the Board concludes that the Veteran's military service did not cause or contribute to his death. Accordingly, the appellant's claim of entitlement to service connection for the cause of the Veteran's death must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs