Citation Nr: 1127708 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 08-27 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran served on active military duty from October 1953 to December 1957 and had three months of prior service. He died on July [redacted], 1977. The appellant is his widow. This issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision of the Department of Veterans Affairs Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO denied the claim for service connection for cause of death. The appellant subsequently moved and jurisdiction was switched to the RO in St. Petersburg, Florida. In March 2010, this claim was reopened remanded for further development. In December 2010, the claim was again remanded. The Board finds there has been substantial compliance with the remand as the appellant has received proper notice regarding her claim. FINDINGS OF FACT 1. The Veteran's July 1977 death certificate lists the immediate cause of death as cardiac arrest due to or a consequence of atherosclerotic heart disease. 2. The Veteran was not service-connected for any disabilities during his lifetime. 3. The cardiac arrest occurred many years after service and the preponderance of the evidence is against a finding that cardiac arrest was related to service and caused or contributed substantially or materially to death. CONCLUSION OF LAW The Veteran's death was not caused by or substantially or materially contributed to by a disability incurred or aggravated in line of duty. 38 U.S.C.A. §§ 1101, 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist In March 2006, May 2006, September 2008, and January 2011, the AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). The AOJ notified the appellant of information and evidence necessary to substantiate her claim for service connection for cause of death. She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide. In the March 2006 letter she was informed of how VA determines effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, 38 U.S.C.A. § 5103(a) notice must be tailored to the claim. Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev'd on other grounds sub nom. Hupp v. Shinseki, No. 2008-7059 (Fed. Cir. May 19, 2009). The notice should 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. Hupp v. Nicholson, 21 Vet. App at 352-353. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id at 353. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Id. Here, the January 2011 letter notice informed the appellant of the notice that is required by Hupp, 21 Vet. App at 352-353; she was told that the Veteran was not service-connected for any disabilities during his lifetime and was given explanations of how to substantiate a DIC claim based on a condition not yet service connected. After this notice was given, the claim was readjudicated. The Board finds the duties to notify have been met. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. 5103A (West 2002). In DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the duty to obtain a medical opinion under 38 U.S.C.A. § 5103(d) is inapplicable to DIC claims because the provision specifically states it is only for "disability compensation." Another case, Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), clarified DeLaRosa, indicating that while § 5103(d) is inapplicable to DIC claims the provision of § 5103A(a)(1) still requires VA to make "reasonable efforts" to provide assistance, to include obtaining a medical opinion. The VA is excused from this obligation only when "no reasonable possibility exists that such assistance would aid in substantiating the claim." 38 U.S.C.A. § 5103A(a)(2) (West 2002). VA has done everything reasonably possible to assist the appellant with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All reasonably identified and available medical records have been secured. The Board has obtained a VA opinion regarding the appellant's claim. In March 2011 the appellant stated she had no further evidence to submit. The duty to assist has been met. Legal Criteria and Analysis Dependency and indemnity compensation may be awarded to a surviving spouse upon the service connected death of a veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2010); 38 C.F.R. § 3.5(a) (2010). A service connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related. 38 C.F.R. § 3.312(b) (2010). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Regulations provide that 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) (2010). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1) (2010). In determining whether the service connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Id. 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. 38 C.F.R. § 3.312(c)(4) (2010). In this situation, it would not generally be reasonable to hold that a service connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id.; See Lathan v. Brown, 7 Vet. App. 359, 366 (1995). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. The Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility. The Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. Id. See also 38 C.F.R. § 3.159(a)(2) (2010) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). In adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In determining whether lay evidence is satisfactory, the Board may consider the demeanor of the witness, internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Bias is also a consideration. Id. Where conflicting medical opinions are given, there must be an assessment of the opinions. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). The appellant, the Veteran's widow, claims she is entitled to DIC benefits. The Veteran died on July [redacted], 1977. His death certificate shows the immediate cause of death was cardiac arrest, due to or as a consequence of atherosclerotic heart disease. There was no autopsy. The Veteran had filed a claim during his lifetime for a heart disability. In April 1971, the Veteran stated he had heart trouble, pains in the chest, shortness of breath, and dizzy spells from 1954 to 1955. In his August 1971 notice of disagreement, the Veteran stated he had symptoms. He then stated that it was true that his symptoms did not bother him for years afterward, but he stated that he thought symptoms in service and his current diagnosis were related. At a February 1974 RO hearing, while relating the history of his heart disability, the Veteran mentioned only a severe heart attack in July 1963. (Transcript, p 5.) In May 1973, Master Sergeant F.F. wrote that he served with Veteran from 1954 to 1956. The Veteran was a chief mechanic in the motor pool. The Veteran and the F.F. were in daily contact. F.F. remembered during 1954 and 1955, the Veteran mentioned chest pains. The Veteran was also on sick call because, as the Veteran told F.F., medical personnel told him he had pleurisy. The Veteran still had occasional chest pain; F.F. stated that he remembered one occasion where it lasted 20 to 30 minutes. F.F. told the Veteran to check with the medics, but they were not yet set up. The Veteran said he felt alright, except for being weak. He then went back to work. In June 1973, a statement from J.B. was submitted in support of the Veteran's claim for service connection for a heart disability. J.B. said he served with the Veteran in Germany. He was the senior non-commissioned officer in charge of motor maintenance and transportation. J.B. was the Veteran's immediate supervisor until August 1956. J.B. stated he could remember that he once had to order the Veteran to the Aid station during a field operation. The Veteran did not want to go because all they ever did was give him APC tablets (aspirin). He did go to the aid station and stated he felt better after his return. J.B. went on: I remember several other instances, while in garrison, that [the Veteran] had the same difficulties and went on sick call to the dispensary. During this period, our aid station and dispensary left much to be desired. I believe they did put him in the hospital once or twice sometime during this period but I am hazy as to the exact circumstances. J.B. commented that if he himself suffered the same symptoms that the Veteran had in service, he would have consulted a specialist. He stated that the acutely ill or injured were treated, "[b]ut if a hurried examination did not result in a serious diagnosis, soldiers were returned to duty." Service treatment records show that the Veteran noted a family history of heart trouble on his May 1953 pre-induction examination. In 1953, the Veteran was 23 years old. In July, he was treated for a swollen hand. In August, he was treated for a rash. In September, he was seen by an ear, nose and throat clinician for nose bleeding. In a January 1955 service treatment record, the Veteran complained of having sharp pain in his chest. The Veteran described a vague, dull ache in his chest which began in the morning. He had a slight cough, but his heart and lungs were clear. The next day he had the same pain, but it had lessened. He was diagnosed with an upper respiratory infection and acute sinusitis. He was prescribed penicillin and put on quarters the following day. He improved after the day of rest and was discharged to duty. On his December 1957 separation examination, he reported that both his mother and a sibling had died of heart ailments. There were no findings or complaints related to a heart disability. Post service medical records show the Veteran had heart problems. A June 1970 private X-ray showed changes thought to represent moderate congestive heart failure. A June 1970 record from Dr. Botas showed that the Veteran was admitted to hospital mainly due to knee problems, but complained of retrosternal pain off and on without radiation. It was noted: "This patient had a history of an old coronary occlusion a few years ago and was treated well and was discharged." He did not have shortness of breath. He had indigestion off and on. The diagnosis was gallbladder dysfunction and spasticity of the stomach. In April 1971, the Veteran was followed by Dr. Beurlot for his knee. One month prior, in March 1971, the Veteran notified Dr. Beurlot that he was being treated by Dr. Drerup for a heart condition; as a result a knee operation was out of the question for the time being. In April 1971, Dr. Drerup reported that Veteran had myocardial infarctions in 1963 and 1965. He experienced angina and dyspnea. The Veteran was given an electrocardiogram to determine his myocardial infarction. At a June 1971 VA examination, the Veteran reported that he had chest pain and shortness of breath beginning in 1954 while in service and continuing to the time of examination. He stated he was seen at a dispensary and given aspirin while in Germany. In 1963 and 1964, he had a coronary infarction. He continued to work in construction and then hurt his knee. At the time of the examination, the Veteran was awaiting admission to a VA hospital for a heart evaluation and possible surgery. The examiner listened to the heart and commented that it sounded fair. There were no thrills or murmurs and peripheral vascular circulation was satisfactory. His diagnosis was arteriosclerotic heart disease, Class III-B with angina pectoris; shortness of breath, dizzy spells and chest pain was associated with arteriosclerotic heart disease. A VA Hospital admission record from August to November 1971 completed by Dr. Korampi shows the Veteran was admitted for evaluation of his chest pain. In 1963 at age 33 the patient had an episode of severe precordial chest pain associated with diaphresis and dyspnea and nausea. He was hospitalized for 21 days and was said to have had a heart attack. Six to eight months later he reportedly had another episode of chest pain and was hospitalized for five days. His past history showed him to be an occasional drinker and one pack a day cigarette smoker. While in the hospital, the Veteran underwent a total cardiopulmonary bypass. An October 1971 VA report showed the Veteran received a right and left cardiac catheterization. This report is signed by Dr. Arizmendi. Under clinical history, the report states: This 41 year old white male began having angina on exertion more than 8 years ago. In 1953 he had a myocardial infarction, with typical symptoms. Since that time he has been having angina, which has become more frequent and severe. The Veteran was experiencing frequent and severe angina at the time. He was a heavy machine operator, but quit working in November 1970 on the advice of his doctor. Family history was positive for coronary artery disease. Physical examination was negative. The diagnosis was arteriosclerotic heart disease with old myocardial infarction and angina; stenosis of the right coronary artery; stenosis of LAD artery and ventricular aneurysm. In a July 2005 letter to the Veteran's daughter, Dr. Canale summarized a packet of material containing the Veteran's VA medical file and medical records. This included basic service information, the letter from J.B., the October 1971 VA report signed by Dr. Arizmendi, and a March 1972 Board decision which denied a service connection claim for arteriosclerotic heart disease. Dr. Canale was under the impression that the Veteran's service treatment records were destroyed in a fire and made a statement to this effect. Dr. Canale concluded that after reviewing all of the documentation he found it as likely as not that the Veteran had cardiac disease during his enlistment in the U.S. Army. He pointed out the notation in the October 1971 VA report said the Veteran had a myocardial infarction in 1953, which was during service. Dr. Canale stated the history written by Dr. Arizmendi in October 1971 must be true, since there was no showing the doctor crossed out the date or tried to correct it. It was also noted that the letter from J.B. states that he had to order the Veteran on several occasions to the troop medical clinic due to chest pain. Dr. Canale also mentioned that due to historic troop draw down in the 1950s, anyone with a history of myocardial heart disease would have never been considered for duty with the military. In April 2007, Dr. Canale wrote a second letter. He stood by his earlier statement that the Veteran must have had a heart attack in 1953, at the age of 23. Also, Dr. Canale asserted that he relied on J.B.'s statement in coming to his determination. "It is truly likely as not that [the Veteran] did have cardiac issues that went undiagnosed and it is more than likely that these had its beginnings while he was on active duty with the US Army." For support, Dr. Canale stated that the Veteran's heart symptoms became more pronounced which led to his death 20 years later. In March 2010, a VA examiner reviewed the claims file, noting the nature of the Veteran's service as well as his social and medical history. The examiner highlighted that at the December 1957 separation examination there were no findings for the Veteran. He denied dizziness or fainting spells, shortness of breath, chest pain or pressure, high blood pressure or palpitations. His blood pressure was 120/80. After service, the examiner noted the coronary bypass grafting in October 1971, pertinent family history for coronary artery disease, and the Veteran's July 1977 death certificate stating the cause of death to be cardiac arrest due to arteriosclerotic heart disease. The examiner reviewed the evidence regarding the date of the Veteran's first heart attack; this included the June 1971 VA examination which reported myocardial infarctions in 1963 and 1964 and a November 1971 discharged note from Dr. Korampi which stated his first heart attack was in 1963 at age 33. The examiner also reviewed Dr. Arizmendi's October 1971 note which reported the Veteran had a myocardial infarction in 1953. The examiner stated one might consider that Dr. Arizmendi's entry "1953" is a typographical error given the close temporal relationship of his report and Dr. Korampi's record. The examiner also pointed out that Dr. Drerup reported that the Veteran had myocardial infarcts in 1963 and 1965. The examiner commented on J.B.'s June 1973 statement regarding the Veteran's health in service. The examiner wrote that J.B.'s statement is consistent with the service treatment record that showed a diagnosis of pleurisy. "It does not support the veteran having a heart attack and returning 'a short while later'." The examiner reviewed Dr. Canale's letters and observed that Dr. Canale placed significant value on Dr. Arizmendi's statement despite the inconsistencies and lack of supporting documentation. The examiner pointed out that Dr. Canale admitted he did not have the original service treatment record documenting treatment for chest pains and shortness of breath (diagnosed as pleurisy). The examiner noted that the January 1955 service treatment record showed a diagnosis of pleurisy with follow up visits showing improvement. Also, the Veteran completed another two years of service without further documented chest complaints. The Veteran's family history was positive for ischemic heart disease. The examiner concluded that more than enough historical evidence supported that the first evidence of coronary artery disease was in 1963 when the Veteran first suffered myocardial infarction. The examiner explained that myocardial infarction is typically the first presenting symptom. This event occurred six years after discharge from active duty. There was no objective evidence of symptoms consistent with arteriosclerotic heart disease during service. As explained, the Board must address the competency of all evidence submitted and must take into account that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. Davidson, 581 F.3d 1313; Layno, 6 Vet. App. at 467-69; 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.159(a)(2). The Board finds that the appellant is competent to state what she personally observed regarding the Veteran's health during his lifetime, however, she has not done so in this case, except to relate the circumstances of his death in a July 1977 letter to her Senator. She was not married to the Veteran while he was in service. As a result, there is really no lay evidence showing the appellant's personal knowledge to assign weight. J.B. and F.F. are competent to report what they observed regarding the Veteran's health in service, although the Board notes that their statements were made many years after service. The Veteran's statements also came long after service, but he was competent to report his own experiences. The Board has no reason to doubt the competency of the VA examiner, Dr. Canale, or any other medical evidence in submitted. The Board finds the service treatment records especially probative because they were created during service shortly after the events they document occurred. As for credibility, the Board finds that the lay statements submitted by the Veteran during his lifetime, J.B. and F.F. to be credible. Their statements are assigned some weight. The lay testimony is sufficient for the purpose of supporting the Veteran's claim of chest pain in service. However, the lay testimony is not competent to determine the cause of the chest pain; i.e., whether it was due to the pleurisy diagnosed in service or due to cardiovascular disease that was diagnosed later and has been implicated in the cause of the Veteran's death. Determining a diagnosis, date of onset or etiology of cardiovascular disease is not something that is readily observable by a lay person. The Board finds Dr. Canale to be relatively credible in his statements as he does provide some support for his opinion. Dr. Canale does make it clear in his letters that he knows the family of the appellant personally and this does establish a bias in favor of the appellant. The bias, which is a consideration for the Board, does detract from his analysis. Caluza, 7 Vet. App. at 511. The Board finds the VA examiner and other medical evidence in the case to be credible. There is no reason to doubt the credibility of this evidence. The medical documentation that was created contemporaneously to the events it describes is assigned great weight. The Board finds that service connection for the Veteran's cause of death is not warranted. Even without considering the opinions given in this case, the record is replete with citations to the fact that the Veteran's first heart attack was in 1963, including the February 1974 RO hearing transcript where the Veteran himself essentially related that his first heart attack was in 1963 (p 5). The Board finds it is not plausible that the Veteran had a heart attack in 1953 while still in service (at age 23), and failed to mention that fact at a hearing regarding a claim for service connection for a heart disability. The explanation that the date was a "typo" is reasonable when the overall evidence is considered. Also, the Board finds the April 2010 VA examiner's opinion to be the more factually accurate and fully supported opinion, as opposed to the statements of Dr. Canale. Nieves-Rodriguez, 22 Vet. App. at 304. This finding is not just based on the fact that the examiner had full access to the claims file, but because the examiner provided conclusions supported by sound rationale. The examiner addressed the many times that other records noted the Veteran's first heart attack was in 1963; which was years after the 1957 separation. She also explained that the diagnosed pleurisy in service made sense in light of the lay statements of J.B. and F.F. The examiner noted that the first evidence of coronary artery disease appeared to be in 1963 when the Veteran suffered his first myocardial infarction; this is typically the time of the first presenting symptoms of heart disease. The Board finds the April 2010 opinion to be factually accurate, fully articulate and absent of bias. In contrast, Dr. Canale did not address the many instances in the record where it was documented that the Veteran had his initial heart attack in 1963. Also, he did not provide support for some of his statements. For example, he stated that Dr. Arizmendi never corrected the notation to 1953, so Dr. Arizmendi must have stood by his written word. This statement still does not account for the fact that Dr. Arizmendi could have written the date in error and never had a chance to correct it. Dr. Canale mentioned that Dr. Drerup had noted that the Veteran's first heart attack was in 1963, but Dr. Drerup never "corrected" this notation either. Both notations cannot be correct; the Veteran can only have a "first" heart attack one time. For the reasons stated above the Board finds it makes more sense that the initial heart attack occurred in 1963. Due to the fact that Dr. Canale's opinion depends on a 1953 heart attack having occurred, his conclusions are not well-supported. He also did not address that there were no findings or complaints at separation. The Board assigns less probative weight to this opinion. In summary, of the two competent opinions regarding the date of onset of cardiovascular disease and whether the Veteran's death is related to service, the VA examiner's opinion is more convincing and more probative. The Board sympathizes with the appellant. However, the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs