Citation Nr: 1111127 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-24 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Harryman, Counsel INTRODUCTION The Veteran served on active duty from September 1953 to January 1958. He died in January 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDINGS OF FACT 1. The Veteran died in January 2008, at the age of 71. The immediate cause of death was respiratory failure; pneumonia was listed as the underlying cause. 2. At the time of the Veteran's death, service connection was in effect for residuals of a vagotomy and pyloroplasty, for hemorrhoids, and for a scar on the back of his head. 3. The preponderance of the evidence of record does not show that a disability of service origin or a service-connected disability caused or contributed to the Veteran's death. CONCLUSION OF LAW A disability incurred in, or aggravated by, active service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 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). Proper notice from VA must inform the claimant of any information and medical or lay 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for dependency and indemnity compensation (DIC) benefits, 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. 38 U.S.C.A. § 5103(a); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The Board finds that adequate notice has been provided, as the appellant was informed about what evidence was necessary to substantiate the elements required to establish service connection for the cause of the Veteran's death. Specifically, the RO's March 2008 letter provided the appellant with an explanation of the evidence and information required to substantiate a DIC claim based on the Veteran's service-connected disabilities. Further, the duty to assist the appellant has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the RO obtained a medical opinion as to the likelihood that the Veteran's service-connected disabilities caused or contributed to his death. 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 Mayfield v. Nicholson, 20 Vet. App. 537 (2006). Additionally, all the evidence in the claims folder has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the claimant or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the entire record must be reviewed, but each piece of evidence does not have to be discussed). 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 reasons for rejecting evidence favorable to the claimant be addressed). 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related. Id. For a service-connected disability to constitute a contributory cause, 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. At the time of the Veteran's death, service connection had been established for residuals of a vagotomy and pyloroplasty, rated 40 percent; and hemorrhoids and a scar on the back of his head, each rated noncompensable. The Veteran's death certificate shows that he died in January 2008. The listed cause of death was respiratory failure, due to or as a consequence of pneumonia. The appellant testified at a Board hearing in August 2010 that the Veteran was treated by VA three or four times beginning in November 2007 until his death for complaints of abdominal pain. She stated that he was unable to eat, lost weight, and became progressively weak. The appellant does not contend that either the respiratory failure or the pneumonia that caused the Veteran's death was in any way due to his military service. She contends that weakness due to his service-connected vagotomy and pyloroplasty led to the pneumonia that caused his death. In addition to the service-connected disabilities listed above, the medical records also reflect treatment for dysphagia, chronic obstructive pulmonary disease, anemia, hypertension, hypotension, coronary artery disease, mesenteric vascular occlusion, and peripheral vascular disease. VA clinic records note evaluation for dysphagia beginning in October 2006. Esophagogastroduodenoscopy (EGD) in January 2007 revealed a hypertensive upper esophageal sphincter, which was dilated. A note in October 2007 states that the Veteran's dysphagia had not improved and that, therefore, the dysphagia was most likely due to cervical spine osteophytes that had been previously noted. Records of a VA hospitalization in December 2007 during which the Veteran was evaluated for pain show that, although there was mild weakness noted in his arms and legs, he was able to ambulate on his own and participate in his own self-care. The Veteran was again hospitalized by VA in early January 2008, having been transferred from a private facility. The summary of the hospitalization states that the Veteran had been having weakness, with an ataxic gait, as well as problems with his speech. When questioned about his gait, he indicated that he used an electric wheelchair to get around. The Veteran stated that he had nausea, but he denied vomiting or abdominal pain; however, the examiner noted that the Veteran appeared to be an unreliable historian. The Veteran's wife reported that he had chronic abdominal pain. EGD during that hospitalization revealed small bowel ulcerations. The final diagnosis was inflammatory bowel disease; the Veteran was discharged, following resolution of his pain, for follow-up with his primary care physician. Notes during that hospitalization indicate that the Veteran was weak and frail, but it was also noted that he was able to ambulate on his own. His condition on hospital discharge was listed as stable. Several days later, the Veteran was again hospitalized at a private facility. The summary of that hospitalization indicates he had been experiencing diarrhea and increased weakness until the day of admission, when he was found unresponsive by his wife. Admission chest x-ray showed near-opacification of the Veteran's left lung field. Although appropriate treatment was started, the Veteran's condition deteriorated and he died the next day. A private physician assistant who had treated the Veteran wrote in February 2008 that the Veteran had been hospitalized three times during the month prior to his death for treatment of abdominal pain, anorexia, and diarrhea. The physician assistant stated that he was admitted in January 2008 with profound dehydration and pneumonia, which was thought to have been due to aspiration. The physician assistant further stated that the Veteran died due to respiratory failure, "which was thought related to his numerous co-morbidities and his most recent illness, abdominal pain, diarrhea, etc." In August 2008, an opinion was obtained from a VA examiner. The examiner reviewed the Veteran's claims file, and discussed his pertinent medical history in detail. The examiner opined that it was "less likely than not" that the Veteran's pneumonia and subsequent respiratory failure were caused by or a result of the EGD performed in early January 2008. The examiner noted the finding of near-opacification of the Veteran's left lung field at the time of his admission to the private hospital in mid-January 2008, but stated that there was radiographic evidence of similar pulmonary changes concerning the left hemithorax during the previous two months prior to the January 2008 EGD. The examiner pointed to a chest x-ray in November 2007 that showed "increased opacification over the entire left hemithorax" and chest x-rays in December 2007 that showed a rounded nodular density in the left lung base "that may be a resolving pneumonia" - both studies having been completed prior to the EGD. The VA examiner also pointed out that the Veteran had a history of significant chronic obstructive pulmonary disease requiring oxygen, chronic nicotine use, coronary artery disease, a cerebrovascular accident in 2003 with dysphagia issues noted subsequently, advanced age, and debility. The examiner stated that all of those issues were significant risk factors for pneumonia and/or aspiration. The examiner also stated that if an aspiration pneumonia had occurred with or immediately after the EGD in January 2008, it would have been "acutely apparent and not have taken 12 days to manifest." Therefore, the examiner concluded that it was less likely as not that the Veteran's "lung condition/pneumonia and respiratory failure" was "caused by or a result of the EGD or other treatment for [the] above service-connected condition." A private physician who treated the Veteran during his final illness wrote in January 2009, noting that the Veteran had undergone upper endoscopy by VA in early January 2008. The physician indicated that the Veteran was placed on high dose prednisone following the endoscopy. It was noted that the Veteran continued to develop worsening pulmonary status, leading to his admission to the private hospital several days later with respiratory failure. It was the physician's opinion that the Veteran's "pneumonia may well have been secondary to aspiration following his upper endoscopy, although I have no absolute proof in terms of observer documentation. The fact, though, that his lung disease worsened while on high dose prednisone, a mainstay of treatment for severe COPD, is tantalizing." The examiner further noted that the EGD was performed because of the patient's complaints of abdominal pain, although the Veteran's wife stated that this was most likely due to chronic constipation. The record indicates that both of the private examiners who submitted opinions on the appellant's behalf had treated the Veteran, including during his final illness, and so were knowledgeable about his various medical conditions. However, the Board accords both of those opinions little if any probative weight. The physician assistant related the Veteran's respiratory failure to his "numerous co-morbidities, and his most recent illness, abdominal pain, diarrhea, etc." Because the examiner apparently included nonservice-connected disabilities among "numerous" causes for the Veteran's respiratory failure, the opinion carries little probative value. As noted above, VA's regulations state that it is not sufficient to show that a service-connected disability casually shared in producing death; there must be a causal connection. Also, although the private physician's opinion purports to link the Veteran's pneumonia to aspiration following the January 2008 EGD, the examiner's use of the phrase "may well have been secondary" leaves the opinion with no probative value. In this regard, the use of terms such as "may" or "could" constitutes mere speculation. The law provides that service connection for the cause of the Veteran's death may not be based on speculation or remote possibility. See 38 C.F.R. § 3.102 (2010); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Thus, the physician's opinion as to the etiology of the Veteran's pneumonia is merely speculative. Therefore, the Board finds that it is not probative. Further, although both private examiners may have treated the Veteran, the record does not indicate that either examiner reviewed the claims file, in particular the reports of x-rays during the previous two months that showed similar findings regarding the Veteran's left lung field. Therefore, the Board finds the opinions of the private examiners have less probative weight. The August 2008 VA examiner, on the other hand, reviewed the Veteran's claims file and previous medical history in detail. That opinion also included adequate rationale supporting the examiner's opinion that it was less likely than not that the ultimate condition that caused the Veteran's death, respiratory failure and pneumonia, was due to the service-connected residuals of a vagotomy and pyloroplasty. Therefore, the Board accords great probative weight to the VA examiner's opinion. There is no evidence indicating that the Veteran's service-connected hemorrhoids or head scar played any role in causing or contributing to his death, and the appellant does not so contend. Moreover, there is no evidence or contention that the respiratory failure and pneumonia listed on the Veteran's death certificate are linked in any way to his military service. Finally, the appellant's statements and hearing testimony as to the nexus between the Veteran's service-connected disabilities and the cause of his death have been considered. However, as a layperson, she is not capable of making medical conclusions; thus, these statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, respiratory disorders, in particular this Veteran's respiratory disorder, are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the appellant's statements in that regard cannot be accepted as competent medical evidence. Weighing all of the evidence of record, the Board finds that the preponderance of the objective medical evidence does not show a relationship between the Veteran's death and his military service. Nor does the evidence of record show that a service-connected disability either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. For those reasons, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs