Citation Nr: 1222821 Decision Date: 06/29/12 Archive Date: 07/10/12 DOCKET NO. 08-21 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from March to June 1949. He died in December 2005. The appellant in this matter is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Oakland, California, Regional Office (RO) which denied, in pertinent part, service connection for the cause of the Veteran's death. The appellant's claim previously was before the Board in October 2010 at which time the Board denied service connection for the cause of the Veteran's death. The appellant timely appealed the Board's October 2010 decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In June 2011, the appellant and VA's Office of General counsel filed a Joint Motion for Remand (Joint Motion). The Joint Motion requested that the Veterans Court vacate and remand the Board's October 2010 decision because both parties to the Joint Motion agreed that the Board had erred in failing to ensure compliance with the terms of its February 2009 remand, in violation of Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the parties to the Joint Motion highlighted that the Board failed to obtain an opinion from an independent medical expert (IME), despite having determined in the February 2009 remand that such an opinion was necessary in this case. In June 2011, the Court granted the Joint Motion. Finally, in January 2012, the Board requested the necessary opinion from an IME. The opinion was received by the Board in March 2012. Although the appellant received a copy of the first page of the IME opinion letter, it appears from a review of the claims file that she was not provided with the second page of this letter. Although the appellant and her representative have not received a complete copy of the IME opinion as well as 60 days to submit additional evidence or argument, the Board finds that there is no prejudice because it is granting the appellant's claim in this decision (as is explained below in greater detail). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran died on December [redacted], 2005. The immediate cause of the Veteran's death listed on the his death certificate is hepatic encephalopathy and end stage liver disease; renal failure, ileus, esophageal varices, and hypoglycemia are listed as significant conditions that contributed to his death. 2. At the time of the Veteran's death, service connection was in effect for bronchial asthma and bilateral cataracts. 3. The evidence is in relative equipoise as to whether a service-connected disability caused or contributed to the Veteran's death. 4. Resolving all reasonable doubt in the appellant's favor, the evidence indicates that the Veteran's service-connected asthma caused or contributed to his death from liver disease and also caused or contributed to the esophageal varices which were a significant condition leading to his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1110, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the appellant of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011). With respect to the appellant's claim of service connection for the cause of the Veteran's death, given the favorable disposition of the action here, which is not prejudicial to her, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The appellant contends that service connection is warranted for the cause of the Veteran's death. Specifically, she contends that the Veteran's service-connected asthma and his long-term use of medications to treat this disability significantly contributed to his death. She also contends that the Veteran's use of medications like Prednisone compromised his immune system which contributed to his death. To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.312. For a service-connected disability to be the principal (primary) 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 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The record shows that the Veteran died on December [redacted], 2005. The certificate of death shows that the immediate cause of his death was hepatic encephalopathy and end stage liver disease. Other significant conditions contributing to his death were listed as acute renal failure, ileus, esophageal varices, and hypoglycemia. At the time of the Veteran's death, service connection was in effect for bronchial asthma and bilateral cataracts. The Veteran's service treatment records were reviewed and are negative for evidence of any liver, kidney, gastrointestinal, or blood glucose conditions. These records also show that he was diagnosed as having asthma in December 1948. In December 1949, the Veteran received a medial discharge due to his bronchial asthma. In a March 1994 letter from the Veteran's private physician, C.L.H, M.D., stated that the Veteran required the periodic use of corticosteroids injections and oral systemic corticosteroids (Prednisone) to treat exacerbations of his bronchial asthma. The Veteran's post-service VA and private medical records immediately following the Veteran's separation from active duty service are negative for evidence of treatment for the conditions listed on his death certificate. VA treatment records show that he was diagnosed as having liver cirrhosis in October 2003. These records also show that he was prescribed an "emergency supply" of Prednisone periodically to treatment his asthma symptoms. A June 2005 VA treatment record shows diagnoses of liver cirrhosis, asthma, and hepatic encephalopathy. As reported in a June 2005 VA addendum, diagnostic testing revealed a scant amount of ascites in the Veteran's abdomen. The Veteran's terminal medical records dated in December 2005 (the month of the Veteran's death) show that he sought hospital treatment for progressive confusion, lethargy, and anorexia. A discharge summary details the course of the Veteran's in-patient treatment and lists his final diagnoses as severe hepatic encephalopathy, end stage liver disease, acute renal failure, ileus, esophageal varices, and hypoglycemia. The discharge summary indicates that the Veteran's condition deteriorated despite medical intervention, and he died on December [redacted], 2005. These records do not give any indication that the Veteran was treated for any infections or any asthma related symptoms prior to his death. In support of her claim, the appellant submitted a January 2006 letter from the Veteran's treating physician, S.K.W., M.D. This physician relayed the Veteran's long history of asthma which required regular nebulizer treatments and the frequent use of steroid therapy. According to Dr. S.K.W., the Veteran frequently had acute exacerbations of his asthma despite his compliance with medications used to treat this disability. Dr. S.K.W. commented that the Veteran's asthma condition may have aggravated his other medical conditions and may have been a contributing factor to the Veteran's death. He noted that the Veteran died due to complications from end stage liver disease. A VA examiner reviewed the Veteran's claims file in April 2006 for the purpose of rendering a medical opinion as to whether the Veteran's service-connected disabilities contributed to his death. The VA examiner noted that the Veteran was service-connected for bronchial asthma. She noted that the Veteran's cause of death was hepatic encephalopathy preceded by end stage liver disease with additional diagnoses of acute renal failure, ileus, esophageal varices, and hypoglycemia. The VA examiner also reviewed Dr. S.K.W.'s January 2006 letter. She concluded that, given that the Veteran's death certificate identified the etiology of the Veteran's death as end stage liver disease with multi symptom failure, in her opinion, it was less likely than not that the Veteran's service-connected asthma was the cause of his death. She further opined that it was less likely than not that the Veteran's asthmatic condition aggravated any of his comorbid conditions to such an extent as to have contributed in any significant way to his death. The appellant submitted a December 2006 letter from private physician C.N.B., M.D., to further support her claim. In the letter, Dr. C.N.B. relayed that he reviewed the Veteran's medical records for the purpose of rendering a opinion concerning his death. He acknowledged that the Veteran died from liver/acute renal disease and hypoglycemia, among other conditions. Dr. C.N.B. noted that the Veteran was service-connected for asthma at the time of his death and that he had been prescribed several types of steroids for his asthma. Citing to a medical textbook, the physician stated that it was well known that steroids cause and exacerbate systemic infections. He opined that the Veteran's long-term steroid use required by his service-connected asthma likely exacerbated significantly his terminal infection(s). Dr. C.N.B. also noted that the Veteran had a very high white blood cell count prior to his death, which was most compatible with infection. He opined that the Veteran's serious infection prior to his death exacerbated his low blood glucose levels and his acute renal and hepatic failures. He concluded that the Veteran's service-connected asthma caused him to require the use of steroids, which in turn caused his death from liver/acute renal failure and hypoglycemia; he noted that these conditions were known secondary complications of the Veteran's infection and highlighted that the conditions were included on his death certificate. Dr. C.N.B. also highlighted that his opinion was consistent with Dr. S.K.W.'s prior opinion that the Veteran's "asthma [steroids] may have aggravated his other conditions [liver/renal failures]." The claims file was reviewed by another VA examiner in August 2007. The VA examiner noted the Veteran's death in December 2005 due to hepatic encephalopathy secondary to end stage liver disease and the other significant conditions identified on his death certificate as acute renal failure, ileus, esophageal varices, and hypoglycemia. He stated that the Veteran was diagnosed as having cirrhosis in October 2003. The examiner noted that an October 2005 private medical record revealed that the Veteran had decompensated cirrhosis that was manifested by ascites and that he was status post a recent upper endoscopy with banding of the esophageal varices. He reviewed the December 2005 hospital discharge summary which documented the Veteran's hospital treatment during the week leading up to his death. According to his review of the VA medical records, the August 2007 VA examiner stated that the Veteran's asthma was relatively stable over the last year of his life and there was no evidence that the Veteran was given Prednisone prior to his admission to the hospital in December 2005. The VA examiner further commented that there were no reports of any infection in the final discharge summary. Given that the Veteran's death certificate stated that the Veteran died from hepatic encephalopathy secondary to end stage liver disease, the VA examiner opined that it was less likely than not the Veteran's service-connected asthma contributed to his cause of death. In January 2012, the Board requested an opinion from an independent medical expert (IME) regarding whether the Veteran's service-connected asthma, or treatment thereof, contributed to or caused his death. The request highlighted the conflicting medical opinions regarding this matter. The Board asked the IME to review the claims file an offer opinions regarding: (1) whether the Veteran's service-connected asthma contributed to or caused the Veteran's death; (2) whether the Veteran's use of medications, to include Prednisone, to treat his service-connected asthma contributed to or caused his death; and (3) whether the Veteran's use of Prednisone caused or contributed to the Veteran's esophageal varices. In a response received in March 2012, the IME opined that it was as likely as not that the Veteran's service-connected asthma contributed to or caused the Veteran's death. According to the IME: Chronic restrictive airway disease (and its treatments) can have long-term sequelae on patients such as this Veteran. Often times, these sequelae are not exposed until the patient develops another superimposed illness(es). These effects include, but are not limited to[,] diminished pulmonary reserve, chronic hypoxemia, diminished baseline pulmonary function, and long-term effects related to chronic immunosuppression from steroid use. Decompensation of the Veteran's liver disease, in the form of ascites, can in itself lead to dyspnea and shortness of breath. This combination can certainly worsen the patient's respiratory status. Additionally, the IME opined that it was as likely as not that the Prednisone or any other treatment for the Veteran's service-connected asthma contributed to or caused the Veteran's death. He explained that Prednisone can have long-term effects on patients, as was certainly the case with this Veteran. More specifically, he opined that it was at least as likely as not that the Prednisone caused or contributed to the Veteran's esophageal varices which were listed as a contributing cause of death on his death certificate. He stated that the Veteran's case was complicated and that the patient's asthma/restrictive airway disease requiring Prednisone treatments complicated any significant illness that may have occurred. The IME emphasized that Prednisone significantly increased the occurrence rate of varices in patients with ascites. The Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected asthma and the treatment required for this disability substantially or materially contributed to his death. In this regard, the appellant has alleged consistently that the Veteran's service-connected asthma, and the treatment for this disability, caused or significantly contributed to his compromised immune system and ultimately contributed to his death. Although the appellant is not competent to provide an opinion as to the etiology of the cause of the Veteran's death, she is competent to report the Veteran's physical symptomatology prior to his death. See Barr v. Nicholson, 21 Vet. App. 303 (2007). To the extent that the appellant has described the Veteran's physical symptomatology, the Board finds the appellant's testimony to be credible as there are no conflicting statements in the record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The medical evidence includes contradictory opinions as to whether the Veteran's asthma and treatment for the disability significantly contributed to or caused his death. Included in the claims file is the January 2006 letter from Dr. S.K.W., in which he opined that the Veteran's asthma may have contributed to his death. Notably, Dr. C.N.B. opined that the Veteran's use of steroids to treat his service-connected asthma caused his death due to liver failure and hypoglycemia which he essentially determined was related to an infection the Veteran presumably had at the time of his death. The Board notes that Dr. S.K.W.'s use of the word "may" in this case makes his opinion speculative. And Dr. C.N.B.'s conclusion that the Veteran had an infection at the time of his death is not supported by the December 2005 hospital discharge summary detailing the Veteran's condition in the week leading up to his demise. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); see also, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value). The Board also acknowledges the April 2006 and August 2007 VA examiners' opinions essentially that it was less likely than not that the Veteran's asthma disability caused or contributed to his death. While these opinions were based on a review of the claims file and are supported by detailed rationales, as discussed in the June 2011 Joint Motion, neither of these opinions specifically address whether the Veteran's long-term use of Prednisone and other treatments for his service-connected asthma caused or contributed to his death. The January 2012 IME opinion constitutes the most comprehensive analysis of whether the Veteran's service-connected asthma caused or contributed to his death. Following his review of the claims file, to include the private and VA medical opinions of record, the IME opined that it was as likely as not that the Veteran's asthma and his use of medications to treat the disability contributed to or caused his death. Since the IME's opinion was based on a review of the pertinent medical history and were supported by sound medical rationale, they provide compelling evidence in favor of the appellant's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t 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"). While the medical evidence in this case is not unequivocal, it has placed the record in relative equipoise. As a state of equipoise has been reached, the appellant prevails and the claim for service connection for the cause of the Veteran's death is granted. The Board concedes that additional development of the appellant's claim could be undertaken so as to obtain additional medical opinions. Applying the benefit of the doubt rule to the appellant's claim, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the appellant shall prevail. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). See also Massey v. Brown, 7 Vet. App. 204, 206-07 (1994); and Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). In summary, and after resolving all reasonable doubt in the appellant's favor, the Board finds that service connection for the cause of the Veteran's death is warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs