Citation Nr: 1128907 Decision Date: 08/05/11 Archive Date: 08/11/11 DOCKET NO. 08-10 845 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and her sister ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is the widow of the Veteran who served on active duty from September 1966 to September 1968. He died in January 2007. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 2007 rating decision by the Cleveland, Ohio, Regional Office (RO), which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. She perfected a timely appeal of that decision. On September 1, 2009, the appellant and her sister appeared and testified at a hearing before the undersigned Acting Veterans Law Judge, sitting at the RO. A transcript of the hearing is of record. Subsequently, after the hearing, the appellant submitted additional evidence for which she has provided written waiver of RO review under 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. The Veteran died in January 2007 at the age of 63. The death certificate listed the immediate cause of death as congestive heart failure due to, or as a consequence of, atherosclerosis. Other significant conditions contributing to the Veteran's death but not resulting in his underlying cause of death included diabetes, pulmonary embolism, and chronic deep venous thrombosis. 2. At the time of the Veteran's death, service connection was in effect for thrombophlebitis, right thigh with varicosities, rated as 60 percent disabling; and thrombophlebitis, left thigh with varicosities, rated as 60 percent disabling. His combined rating was 90 percent, with a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in effect from July 17, 2002. 3. The Veteran's fatal congestive heart failure and atherosclerosis did not originate in service or within one year of his discharge therefrom, are not otherwise related to service, and were not caused or chronically worsened by his service-connected thrombophlebitis of the right and left thigh with varicosities. 4. The preponderance of the probative evidence of record is against a finding that the Veteran's service-connected disabilities caused or contributed substantially or materially to his death. CONCLUSIONS OF LAW 1. Congestive heart failure and atherosclerosis were not incurred or aggravated in service, nor may they be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). 2. A disability incurred in service did not cause, or contribute substantially or materially to the cause of, the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Additionally, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, § 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 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. 342, 352-53 (2007). The U.S. Court of Appeals for the Federal Circuit had previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court held that the burden of proving harmful error must rest with the party raising the issue, that the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and that determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, VA satisfied its duty to notify by means of a letter dated in April 2007 from the RO to the appellant which was issued prior to the RO decision in September 2007. An additional letter was issued in June 2009. Those letters informed the appellant of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of those letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. She was provided an opportunity at that time to submit additional evidence. In addition, the February 2008 statement of the case (SOC), and the July 2009 supplemental statement of the case (SSOC) provided the appellant with an additional 60 days to submit additional evidence. Thus, the Board finds that the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim. It also appears that all obtainable evidence identified by the appellant relative to her claim has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. In connection with the current appeal, an appropriate VA medical opinion has been rendered and service treatment records and post service records have been obtained. We also note that the VA medical opinion was adequate. The examiner reviewed the history and the established clinical findings and presented reasons for her opinion. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained or requested. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). II. Factual background. The record indicates that the Veteran served on active duty from September 1966 to September 1968. The record reflects that the Veteran died in January 2007, at the age of 63. A certificate of death, dated in January 2007, shows that the Veteran's death was attributed to congestive heart failure due to, or as a consequence of, atherosclerosis. Listed as other significant conditions contributing to death but not resulting in the underlying cause were diabetes, pulmonary embolism, and chronic deep venous thrombosis. No autopsy was performed. At the time of the Veteran's death, service connection was in effect for thrombophlebitis, left thigh, with varicosities, rated as 60 percent disabling; and thrombophlebitis, right thigh with varicosities, rated as 60 percent disabling. The service treatment records are negative for any complaints, diagnosis of or treatment for a cardiovascular disease. At the time of the enlistment examination in March 1966, the cardiovascular system was reported as normal. X-ray study of the heart was also reported to be normal. The STRs indicate that, in June 1967, the Veteran complained of veins popping out. It was noted that he had very small superficial varicosities in both calves; support hose were issued. On the occasion of his separation examination in August 1968, clinical evaluation of the cardiovascular system was normal; X-ray study of the heart was also reported to be normal. Post service treatment reports, dated in the 1980s, including VA as well as private treatment reports, show that the Veteran received ongoing clinical evaluation and treatment primarily for his thromboplebitis with varicosities in the right and left thighs. Among those records is a statement from Dr. William H. Roberts, dated in December 1984, indicating that he first saw the Veteran for a respiratory problem in January 1983; since then, he had had recurrence of his deep thrombophlebitis and on two occasions, pulmonary emboli. Dr. Roberts stated that there was no question that the Veteran was totally disabled by his chronic deep saphenous thrombophlebitis with recurrent pulmonary emboli, obesity and bronchial asthma. Those records do not reflect any complaints of, diagnosis of or treatment for a cardiovascular disease. Treatment reports dated from April 1999 through October 2002 show that the Veteran received treatment for various health problems including hypertensive heart disease. Of record is a treatment report from the Toledo Clinic, dated in April 1999, wherein it was noted that the Veteran was seen in consultation for joint pain in March 1999. It was also noted that health problems included possible hypertension and angina. Following a physical evaluation, the impression included questionable hypertensive artheriosclerotic cardiovascular disease-angina, cerebral vascular accident. A June 2002 VA progress note reflects diagnoses of hypertension and coronary artery disease. The appellant's claim for DIC benefits (VA Form 21-534) was received in March 2007. Submitted in support of her claim was a certificate of death, dated in January 2007, which lists the immediate cause of death as congestive heart failure due to, or as a consequence of, atherosclerosis. Listed as other significant conditions contributing to death but not resulting in the underlying cause of death were diabetes, pulmonary embolism, and chronic deep venous thrombosis. Also submitted in support of the appellant's claim were VA progress notes dated from December 2004 to October 2006, which show that the Veteran was diagnosed with coronary artery disease. In August 2007, the Veteran's claims folder was reviewed by a VA physician to obtain an opinion regarding the relationship, if any, between the Veteran's service-connected disabilities and the cause of his death. The VA physician noted that the Veteran suffered from the following medical problems: diabetes mellitus, type 2; diabetic peripheral neuropathy; diabetic foot ulcers; atherosclerotic heart disease, with chronic angina; cerebrovascular disease, post cva; hyperlipidemia; hypertension; congestive heart failure; chronic thrombophlebitis with remote pulmonary embolus and vena cava filter; antiphospholipid syndrome, with increased risk of clotting events; chronic anticoagulation; cirrhosis of the liver, with portal hypertension, bleeding esophageal varices; thrombocytopenia; morbid obesity; and chronic venous insufficiency. The physician noted that there is no information whatsoever available about the final events in the Veteran's life, including more GI bleeding, chest pain and/or indications of any acute cardiac or acute pulmonary embolic event. The physician further noted that the Veteran had multiple medical conditions which contributed to his death, including but not limited to: morbid obesity, long-standing diabetes mellitus, type 2, on oral agents and insulin, hypertension, hypercholesterolemia, ischemic heart disease with congestive heart failure, antiphospholipid syndrome, chronic venous insufficiency with chronic thrombophlebitis and varicosities, cirrhosis of the liver with portal hypertension and bleeding esophageal varices. The physician opined that it is not as likely as not that the Veteran's chronic venous insufficiency with chronic thrombophlebitis and varicosities contributed in any meaningful way to the Veteran's cause of death. The physician also concluded that it is as likely as not that the Veteran died of chronic heart failure and quite possibly, liver failure with or without GI bleeding. At her personal hearing in September 2009, the appellant maintained that the Veteran's death was caused by his thrombophlebitis. The appellant testified that the doctor who signed the death certificate had treated the Veteran for his service-connected conditions, and he told her that there was a connection between the service-connected conditions and the cause of death. The appellant argued that the inability of the Veteran to use his legs probably led to the other medical problems that eventually led to his death. Submitted in November 2009 was a medical statement from Dr. O. C. O., dated in November 2009, indicating that he treated the Veteran during the period from October 2005 through December 2006. Dr. O. reported that the Veteran received routine medical care at the Toledo VA clinic. He noted that the Veteran reported that he had been on medical disability from the military since 1985. Dr. O. indicated that the Veteran had a history of type 2 diabetes, chronic peripheral vascular disease, and deep venous thrombosis. He also had an episode of pulmonary emboli, hypertension, and hyperlipidemia. He was on anticoagulants and oral medication for his diabetes. He also took Gabapentin for his diabetic neuropathy as well as blood pressure medication. Dr. O. further noted that the Veteran had had problems referable to his venous system since his days in the Armed Forces and that, along with the diabetes mellitus, contributed to his eventual demise. III. Legal Analysis-S/C for Cause of the Veteran's Death. The appellant contends that service connection is warranted for the cause of the Veteran's death. Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2010). 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. 3 8 C.F.R. § 3.303(d) (2010). Certain conditions, such as arteriosclerosis and cardiovascular disease, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2010). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) (2010). Contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c) (2010). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the Veteran less capable of resisting the effects of other diseases. 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. In this situation, however, 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. 38 C.F.R. § 3.312(c) (3), (4) (2010); Lathan v. Brown, 7 Vet. App. 359 (1995). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). 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). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2011). Having carefully reviewed the record, the Board has determined that service connection for the cause of the Veteran's death is not warranted. The service treatment records are negative for any complaints, diagnosis of or treatment for a cardiovascular disease. Rather, at separation, the cardiovascular system was normal. Moreover, there is no indication of any cardiovascular disease, including atherosclerosis, within one year after service. Significantly, the post service medical records show that a cardiovascular disease was first diagnosed in June 2002, approximately 34 years after the Veteran's discharge from service. The Federal Circuit Court has held that a lapse of many years after the events in question during service and the initial manifestation of symptoms after service is probative evidence to be considered in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). It follows that there is no basis to award service connection based on chronicity in service or continuous symptoms thereafter. 38 C.F.R. § 3.303(b). In addition, the presumption of in-service incurrence for a cardiovascular disease seen within one year of service is not for application. 38 U.S.C.A. § 1112(a) (1); 38 C.F.R. § 3.307(a) (3). Moreover, the Board finds that the record does not contain competent evidence to establish a nexus, or link, between the underlying cause of death, congestive heart failure and atherosclerosis, and the Veteran's active service. The Board notes that the claims file contains differing opinions as to whether the Veteran's cause of death is related to active service. Where the record contains both positive and negative evidence, it is the responsibility of the Board to weigh the credibility and probative value of the medical opinions, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board is mindful that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Here, the Board affords more probative weight to the VA medical opinion obtained in August 2007 than it does to the private medical opinion submitted by the appellant in November 2009. Specifically, the Board finds that the August 2007 VA physician conducted a thorough review of the Veteran's entire claims folder and based her well-reasoned opinion on objective, documented evidence found in the claims folder. Significantly, the VA physician clearly explained the underlying reasoning for her opinions and conclusions. The VA examiner specifically noted that the Veteran had multiple medical conditions which contributed to his death; she expressly concluded that the chronic venous insufficiency did not contribute in any meaningful way to the cause of the Veteran's death. To the contrary, the November 2009 opinion rendered by Dr. O. was conclusory in nature and failed to provide any underlying reasoning explaining how the physician reached his conclusion. The probative value of a medical opinion rises when it is the factually accurate, fully articulated, and sound reasoning for the conclusion (not from the mere fact that the claims file was reviewed). Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Dr. O. provided absolutely no rationale for his conclusion, pointed to no evidence to support his opinion, and made no indication that the complete record was considered. He also did not consider the effects of the other medical conditions from which the Veteran suffered during his lifetime. As such, the Board affords very little probative weight to this opinion. The Board has also considered the appellant's statements and sworn testimony asserting a nexus between the Veteran's death and his period of active duty service. However, causes of death such as atherosclerotic cardiovascular disease are not the types of disorders for which a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have rendered opinions during the current appeal and by service records obtained and associated with the claims file. 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; or that it aided or lent assistance to the production of death. Utendahl v. Derwinski, 1 Vet. App. 530 (1991). It is not sufficient to merely show some relationship, but it must be a direct causal relationship that contributed to the death. The private physician did not explain such a direct causal relationship. Thus, the private medical opinion, while not discounted entirely, is entitled to minimal probative weight. For these reasons, the probative and persuasive evidence weighs against the claim. The Board wishes to emphasize that the sincerity of the appellant's beliefs here is not doubted, and that we have sympathetically reviewed all of her correspondence. With regard to her assertions, the appellant is qualified to report any symptom or manifestation personally observed, but she is not shown to be qualified to render a diagnosis or to provide an etiological nexus between the Veteran's cause of death and his service-connected chronic thrombophlebitis of the right and left thighs with varicosities or his period of active military service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, her statements as to this connection cannot be of probative value. In light of the foregoing, the evidence weighs against the appellant's claim of entitlement to service connection for the cause of the Veteran's death, and the appeal must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ D. B. Weiss Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs