Citation Nr: 1115073 Decision Date: 04/18/11 Archive Date: 05/04/11 DOCKET NO. 09-25 685 ) 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: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served from November 1944 to November 1945. The appellant seeks surviving spouse benefits. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the appellant's claims for service connection for the cause of the Veteran's death. 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 on July [redacted], 2008, from pneumonia of the right lower lung lobe. In addition, congestive heart failure, acute renal failure, and coronary artery disease were listed as contributory causes of death. 2. At the time of his death, the Veteran was service connected for residuals of tuberculosis. He had also been awarded service connection for multiple gunshot wound residuals (group VI muscle injury, deformity of the right radius, and incomplete paralysis of the right ulnar nerve). 3. The competent evidence of record is at least in equipoise as to whether the Veteran's service-connected tuberculosis residuals contributed to the onset or hastened the progression of his fatal pneumonia. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310, 3.159, 3.312 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for the Cause of the Veteran's Death Service connection for the cause of a Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory cause of death. 38 C.F.R. § 3.312(a) (2010). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2010). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially. 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). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2010). A current disability must be related to service or to an incident of service origin. A Veteran seeking disability benefits must establish the existence of a disability and a connection between the Veteran's service and the disability. Boyer v. West, 210 F.3d 1322 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). Service connection may be granted on a presumptive basis for certain chronic diseases, including active-stage tuberculosis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). In this case, however, the Veteran was already in receipt of service connection for tuberculosis residuals at the time of his death. Thus, the Board need not consider whether service connection for that disorder was warranted on a presumptive basis. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2010). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record before the Board consists of service medical records, post-service medical records, a February 2011 Veterans Health Administration (VHA) opinion, and lay statements and Travel Board hearing testimony from the deceased Veteran, his surviving spouse (the appellant), and their son. That evidence will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Veteran died in July 2008. At the time of his death, he was service connected for residuals of pulmonary tuberculosis, rated as 70 percent disabling. He was also in receipt of a 40 percent disability rating for residuals of a gunshot wound to the right arm, muscle group VI; a 30 percent rating for a deformity of the right radius; and a 10 percent rating for incomplete paralysis of the right ulnar nerve. His combined disability rating was 90 percent. A July 2008 death certificate listed the Veteran's immediate cause of death as pneumonia of the right lower lung lobe. In addition, congestive heart failure, acute renal failure, and coronary artery disease were listed as contributory causes of death. The Veteran not service connected for any of those disabilities. Nevertheless, the appellant and her son contend that the Veteran's death was due, at least in part, to his service-connected tuberculosis residuals. Specifically, in written statements and testimony before the Board, the appellant and her son assert that the thoracoplasty that the Veteran underwent to treat his tuberculosis, combined with the direct effects of the illness itself, resulted in lung tissue scarring and significantly diminished ventilatory capacity that hastened the onset and progression of his fatal pneumonia. They further contend that the Veteran's tuberculosis residuals aggravated the heart disease that contributed to his death. In support of her claim, the appellant has submitted medical literature regarding general complications, including diminished ventilatory capacity, lung tissue scarring, and heart inefficiency, which are associated with thoracoplasties performed on tuberculosis patients. The Veteran's service medical records show that he was wounded in action in the Philippines in March 1945. He incurred injuries to his right upper extremity that resulted in his release from active service in November 1945. Thereafter, the Veteran was diagnosed with advanced chronic pulmonary tuberculosis, which was presumed to have had its onset in service. From August 1948 to May 1951, he underwent inpatient treatment for that disorder and related pulmonary conditions, including endobronchial tuberculosis. The Veteran's inpatient treatment regimen included extensive antibiotic therapy and a three stage thoracoplasty, performed in August and September 1949, which involved the removal of seven ribs and the collapse of the Veteran's left lung. While the Veteran's pulmonary and endobronchial tuberculosis symptoms were considered to be arrested by the time of his May 1951 hospital discharge, the severity of his illness required an additional two years of outpatient recuperation. During that period, the Veteran underwent pulmonary testing, which revealed moderate re-expansion of the left lung consistent with arrested pulmonary tuberculosis and endobronchial tuberculosis. On VA examination in June 1953, the Veteran's respiratory movements, resonance, and breathing sounds were found to be limited to the right side of his lung. Additionally, clinical examination of the chest revealed an underlying structural defect consisting of the absence of seven ribs from his prior thoracoplasty procedure. However, no other significant clinical abnormalities were found and the Veteran's overall condition was considered stable. The record thereafter shows that the Veteran remained relatively asymptomatic for the next several decades. However, he underwent an April 1992 VA examination in which extensive post-thoracoplasty scarring of the left lung was shown. Additionally, his breathing sounds were found to be normal on the right side, but severely diminished on the left, and the VA examiner expressly noted that the Veteran's left lung cavity was not functioning to any significant degree. Subsequent X-rays taken in April 1993 show residuals of the seven-rib thoracoplasty with minimal deformity of the thorax. Contemporaneous pulmonary function tests revealed a pattern of minimal restrictive breathing, which was attributed to the thoracoplasty. While those pulmonary function tests also showed evidence of obstructive lung disease, the etiology of that condition was traced to the Veteran's 30-year history of cigarette smoking. The Veteran was afforded an additional VA examination in July 2002 in which he reported a history of chronic dyspnea dating back to his 1949 lung surgery. He denied any history of chronic coughing or hemoptysis. Nor did he report any other chronic lung problems. It was noted that the Veteran's tuberculosis had been arrested since June 1953 with no subsequent recurrences. A subsequent VA medical record, dated in June 2004, is negative for any complaints or clinical findings of shortness of breath, chest pains, or other pulmonary problems. While private medical records leading up to the Veteran's death have not been obtained, his surviving spouse and son have testified that, in the early summer of 2008, he contracted influenza, which quickly developed into pneumonia. By their account, the Veteran was treated at a private hospital and then spent approximately two weeks at a nursing facility before his symptoms worsened and he was rehospitalized. Regrettably, his condition rapidly deteriorated and he passed away on July [redacted], 2008. Significantly, the Veteran's son has reported being told by a private physician who treated the Veteran for pneumonia that he "would have had much more of a fighting chance" against the illness if he "had two lungs that worked instead of just one." Additionally, the Veteran's son has indicated that chest X-rays taken two days before the Veteran's death showed he had a "huge spot where his [left] lung ha[d] collapsed" following his 1949 surgery and that his formerly healthy right lung was "full of phlegm and bacteria [from] the pneumonia." In January 2011, the Board requested a Veterans Health Administration (VHA) opinion from a pulmonologist regarding whether the Veteran's service-connected pulmonary tuberculosis residuals, including the effects of his 1949 thoracoplasty, had contributed to the onset, or hastened the progression, of his fatal pneumonia. The Board also requested that the pulmonologist address whether the Veteran's pulmonary tuberculosis residuals had caused or aggravated any of the other diseases that contributed to his death. Finally, the Board directed that the pulmonologist consider whether the Veteran's death was otherwise related to any of his service-connected disabilities or any other aspect of his death. In February 2011, the Board received a response from a staff pulmonologist at a VA Medical Center who, after reviewing the claims folder and relevant medical literature, determined that it was less likely than not that the Veteran's service-connected right arm shrapnel wound residuals had caused or contributed substantially or materially to his death. Additionally, the VHA examiner found no evidence of an etiological relationship between the Veteran's service-connected pulmonary tuberculosis residuals and the cardiovascular-renal disorders (congestive heart failure, acute renal failure, and coronary artery diseases), which were listed as contributory causes of his death. However, the VHA examiner did find that a positive etiological relationship existed between the Veteran's pulmonary tuberculosis residuals and his fatal pneumonia. Specifically, the examiner determined that it was at least as likely as not that the left-sided thoracoplasty, which had been administered to treat the Veteran's pulmonary tuberculosis, had permanently impaired the pulmonary function in his left lung and that, as a result, "he lacked pulmonary reserve function after developing pneumonia in the functioning contralateral right lung." For that reason, the examiner concluded, it was "as likely as not that the consequences of the [the Veteran's] thoracoplasty may have contributed to his clinical deterioration once he developed the right-sided pneumonia" and, in turn, "may have contributed to the consequences and course of" that fatal disease. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board considers the January 2011 VHA opinion to be the most probative and persuasive evidence of record. That opinion was based on a thorough and detailed review of Veteran's service and post-service medical records and other pertinent information in the claims folder. Additionally, that opinion was supported by a detailed rationale, which demonstrated a knowledge of the Veteran's clinical history and was rendered by a VA physician with specialized training in the field of medicine (pulmonology) relevant to the appellant's claim. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Moreover, the Board considers it significant that the January 2011 VHA opinion constitutes the most recent medical evidence of record and was undertaken directly address the issue on appeal. Furthermore, there are no other contrary medical opinions of record. The Board recognizes that the January 2011 VHA examiner couched his opinion regarding the relationship between the Veteran's service-connected pulmonary tuberculosis residuals and his cause of death using terms such as "may have contributed," which are somewhat speculative in nature. Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical opinion expressed in terms of may also implies may or may not and is too speculative to establish medical nexus). Nevertheless, the Board considers it significant that the VHA examiner supported the opinion with a rationale that set forth in great detail how the effects of the left-sided thoracoplasty used to treat the Veteran's pulmonary tuberculosis impaired his ability to ward off the effects of the right-lung pneumonia, which ultimately led to his death. In that regard, the VHA examiner's opinion clearly established a positive nexus between the Veteran's service-connected pulmonary tuberculosis residuals and the disease listed as his primary cause of death. Indeed, that positive correlation is underscored by contrast with the VHA examiner's expressly negative nexus findings with respect to the Veteran's pulmonary tuberculosis residuals and his cardiovascular-renal disorders, which also contributed to his death, and with respect to his other service-connected disabilities and his death. In any event, the Board observes that the appellant is not prejudiced by the Board's interpretation of the VHA examiner's opinion, which is fully favorable to her claim. Based on a careful review of the evidence of record, the Board finds that the Veteran's service and post-service records and, in particular, the January 2011 VHA examiner's opinion, establish a positive medical nexus between the Veteran's service-connected pulmonary tuberculosis residuals and his cause of death. That weighs in favor of the appellant's claim. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Additionally, the Board considers it significant that the appellant has provided written statements and Travel Board testimony regarding the Veteran's history of tuberculosis-related breathing problems and the symptoms of pneumonia leading up to his death. The Board observes that she is competent to describe such symptoms, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Similarly, the Veteran's son is competent to testify that he was informed by private physicians that the Veteran's odds of surviving pneumonia would have been greater if he had two working lungs instead of one. The Veteran's son is also competent to report that he was shown X-rays documenting the collapse of the Veteran's left lung two days before his death. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the statements and testimony of the appellant and her son are consistent with the other evidence of record and, thus, are considered credible. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, their statements and testimony are supported by the medical literature that the appellant has submitted concerning general complications, including diminished lung capacity, associated with thoracoplasties performed on tuberculosis patients. That medical literature, in combination with the probative medical opinion of the VHA examiner, adds further weight to the appellant's claim. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In light of the foregoing, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise with respect to whether the Veteran's service-connected pulmonary tuberculosis residuals contributed substantially and materially to his death. Accordingly, resolving all reasonable doubt in the appellant's favor, the Board finds that the criteria for service connection for the Veteran's cause of death have been met. 38 U.S.C.A. 5107 (b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs