Citation Nr: 1301091 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 05-12 084 ) 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: Kenneth L. LaVan, Private Attorney ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1950 to July 1954. He died in May 2003. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a January 2004 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). This Board denied the appeal in April 2007. The appellant appealed that decision to the Veterans Claims Court. In May 2008, the Court Clerk vacated the April 2007 Board decision and remanded the matter back to the Board for development consistent with a Joint Motion for Remand (Joint Motion). In October 2008, May 2010, and July 2012, the Board remanded this case for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran in May 2003. According to a copy of the Certificate of Death, the immediate cause of death was listed as hip fracture, due to (or as a consequence of) primary central nervous system lymphoma. 2. At the time of the Veteran's death, service connection was in effect for anxiety reaction, rated as 30 percent; flat feet, rated as 30 percent; traumatic arthritis, right ankle, rated as 20 percent; tinnitus, rated as 10 percent; bilateral hearing loss, rated as 0 percent; residuals of right elbow injury, rated as 0 percent; and left knee and low back osteoarthritis, rated as 10 percent; for a combined disability rating, to include bilateral factor, of 70 percent. 3. A service-connected right ankle disability did not have a material role in causing the Veteran's death. CONCLUSION OF LAW A disability incurred in active service did not contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION To establish service connection for the cause of a veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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. 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, a causal connection must be shown. 38 U.S.C.A. § 1310 ; 38 C.F.R. § 3.312. Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 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). In such a 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. Id. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical and lay 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 appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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. Lay statements may be competent 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), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Turning to the merits of the claim, the basic facts are not in dispute. The Veteran had been diagnosed with a non-Hodgkin's lymphoma brain tumor. He underwent surgery and radiation in September 2002. He fell at his home in late April 2003 and fractured his hip. During surgery to repair his hip, he nearly went into cardiac arrest. He died approximately three weeks later. He was 75 years old. The death certificate lists the immediate cause of his death as hip fracture due to (or as a consequence of) primary central nervous system lymphoma. An autopsy was not performed. At the time of his death, the Veteran was service-connected for anxiety reaction, rated as 30 percent; flat feet, rated as 30 percent; traumatic arthritis, right ankle, rated as 20 percent; tinnitus, rated as 10 percent; bilateral hearing loss, rated as 0 percent; residuals of right elbow injury, rated as 0 percent; and left knee and low back osteoarthritis, rated as 10 percent; for a combined rating, to include bilateral factor, of 70 percent. The Veteran's service medical records do not show treatment or diagnosis related to a hip disorder or primary central nervous system lymphoma. Such conditions were not shown until decades after his separation from active service. Therefore, the disorders that caused his death are not directly related to service. The appellant contends that the Veteran's hip fracture was caused by his service-connected right ankle traumatic arthritis. Specifically, she asserts that his right ankle arthritis, which weakened his stability, caused him to fall resulting in the hip fracture and, ultimately, his death. This case was initially denied in April 2007, then remanded on several occasions as the Board sought clarification of the relationship between a hip fracture and the cause of death. While the medical professionals agree that the hip fracture caused the Veteran's death, the threshold question is whether the service-connected right ankle disability caused him to fall which caused his hip fracture. The record includes both medical evidence that tends to support the appellant's claim of service connection for the cause of the Veteran's death and medical evidence that is against her claim. In evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Medical treatment records show that in September 2001, after hospitalization, the Veteran was diagnosed with non-Hodgkin's lymphoma, pleomorphic large B-Cell type (NHL). Treatment records from the Neuro-Oncology Center show that he received regular treatment from November 2001 to May 2003 for NHL. The most recent treatment records from February and March 2003 show that he underwent a magnetic resonance imaging scan (MRI) of the brain, which revealed minor worsening on contrast enhancement, but generally showed that his NHL was contained with a spread of less than 25 percent. During his appointments, he was noted to be alert and cooperative, his strength was noted to be good, and he was able to stand and ambulate throughout the room with very little limitation. He was treated by Dr. N.A. at the Neuro-Oncology Center. In support of the claim, the appellant submitted a November 2003 letter from Dr. N.A. In the letter, Dr. N.A. stated that while the Veteran's death was primarily related to his NHL, his severe arthritis was a complicating factor that may have precipitated his fall, which resulted in a hip fracture and ultimately caused his death. The Veterans Claims Court has held that medical opinions based on speculation, without a supporting explanation of rationale, are not adequate for rating purposes. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board finds that Dr. N.A.'s use of the phrase "may have" and the absence of a supporting rationale, makes this opinion inadequate to provide a basis for entitlement to service connection, as it is speculative. Also of record is a follow-up February 2005 letter from Dr. N.A.. In this letter, Dr. N.A. more clearly stated that the severe arthritis in the Veteran's right ankle was a complicating factor that precipitated his fall, causing his hip fracture and ultimately his death. However, he still failed to offer a supporting rationale for his opinion. During the course of the appeal, the appellant submitted a September 2011 medical opinion from Dr. A.S., a senior disability analyst and diplomate at a medical education and consulting group. He opined that it was as likely as not that the Veteran's fall, hip fracture, and ultimate death was secondary to his service-connected post traumatic arthritis of the right ankle. Dr. A.S. based his opinion on the medical records in the Veteran's claims files that showed evidence of clinical improvement of the Veteran's NHL and improvement in levels of fatigue, stamina, and overall strength, as well as treatment records documenting the Veteran's complaints of falling spells caused by his right ankle arthritis. The appellant submitted a follow-up opinion from Dr. A.S. dated in May 2012 in response to an unfavorable February 2012 VA medical advisory opinion. In this opinion, Dr. A.S. affirmed his September 2011 opinion that it was as likely as not that the Veteran's fall, subsequent hip fracture, and resultant death was related to his service-connected right ankle traumatic arthritis. While he agreed with the VA orthopedist that it was well documented that there is an increase in mortality in hip fracture in the elderly, he did not agree with the opinion that the Veteran's service-connected arthritis did not contribute to his death. Dr. A.S. noted that the VA orthopedist did not appear to take into account the evidence of record which documented the Veteran's complaints of falls caused by his ankle disability or the evidence contained in the treatment records from the neuro-oncology center which showed improvement in the Veteran's level of fatigue, stamina, and overall strength. Dr. A.S. highlighted the fact that the Veteran's neuro-oncologist opined in February 2005, that the Veteran's arthritis was a complicating factor that precipitated his fall. VA treatment records from April 2000 to May 2003 show that the Veteran was seen at various times with complaints of ambulation problems. On one occasion, in April 2002, he complained that he had been falling frequently, which he attributed to his right ankle disability, as the ankle would "just give way." While the Veteran believed that his mobility problems were due to his right ankle, the medical evidence reflects that his health care professionals believed his balance problems developed after he was operated on for a brain tumor in September 2001. Specifically, in April 2002, the diagnosis was "lymphoma with post-op radiation rt brain with residual gait problems." At that same visit, he complained of dizzy spells since the September operation, falling, and losing his balance. In June 2002, he started physical therapy to help with his gait because of balance problems and propiocetion (essentially, a lack of awareness of the relative positioning of the body). Neither the treating physician nor the physical therapist made any mention that his falling was due to a right ankle disability. In fact, he was given a foot brace and it was ineffective. This evidence tends to weigh against the claim. In January 2010, a VA medical opinion was obtained in accordance with an October 2008 Board remand. After review of the Veteran's claims files, which included pertinent medical treatment records, the VA examiner noted that the Veteran had many terminal conditions, recurrent falls over the two years prior to his death, and that his service-connected arthritis definitely contributed to his unsteadiness afoot. The examiner opined that it was as likely as not that his unsteadiness was significantly contributed to by his service-connected right ankle arthritis and therefore contributed to his death in a substantial manner; however, he noted that he was unable, without speculation, to offer an exact cause for the Veteran's death. In February 2012, the Veteran's claims files were sent to a VA orthopedist for a medical advisory opinion. After review of the claims files, the VA orthopedist opined that it was less likely than not that any of the Veteran's service-connected disabilities, to include his right ankle arthritis, caused or substantially contributed to his death. He explained that the Veteran had significant comorbidities including glioblastoma of the brain and metastatic lymphoma, which were documented to have caused symptoms of confusion, dizziness, and shuffling gait. The VA orthopedist found that the fall the Veteran sustained, and subsequent hip fracture, was more likely related to his neurologic decline caused by his nonservice-connected neoplastic processes, and not his service-connected right ankle arthritis. The VA orthopedist was also asked to comment on the determination in the Veteran's death certificate listing the cause of death as hip fracture. He explained that hip fracture as cause of death was appropriate within the accepted realm of orthopedic knowledge. He noted that had the Veteran not suffered the fractured hip, his risk of death at that time would have been at its baseline level. By sustaining the hip fracture, the examiner explained that the Veteran, who was already in tenuous medical condition, drastically increased his risk of death. A bone injury would have caused the Veteran to be bed ridden and exposed to medical complications such as infection, blood clots, and heart and/or pulmonary failure. He further stated that it was well documented in orthopedic literature that hip fractures in the elderly have a significantly increased mortality risk which is directly, and often immediately, related to the bone injury. The post-claim medical opinions are divided on whether a service-connected right ankle disability caused the Veteran to fall and break his hip which ultimately caused his death. In weighing all the evidence of record, the Board has given significant probative value to the medical evidence that was created contemporaneously with the Veteran's fall and ultimately demise. To that end, the Board finds it relevant that at the time the Veteran was admitted for the fall, there was no mention made of right ankle involvement. Further, the official cause of death noted on the death certificate was hip fracture due to (or as a consequence of) primary central nervous system lymphoma. There was no notation made as to the ankle. While there is no doubt that the Veteran experienced mobility and gait problems prior to his death, and he reported ankle problems during his lifetime, the Board finds that the weight of the evidence (considering particularly the relevant evidence at the time of his fall and death) does not support a finding that his death was due to a service-connected right ankle disability. Rather, the weight of evidence reflects that he developed significant gait and mobility issues after the diagnosis of a brain tumor and treatment for the tumor. As the brain tumor is not shown to be related to service, the claim for service connection for cause of death is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the context of a claim for 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). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a § 5103(a)-compliant notice. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in October 2003 that addressed the notice elements of a service connection claim and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. She received a follow-up letter in December 2004. While the letters did not include all elements under Hupp, the evidence shows that the appellant had actual knowledge of what the Veteran was service-connected for. Specifically, she argues that service-connection is warranted for cause of death because the Veteran died of a hip fracture that was due to his service-connected right ankle disability. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Next, VA has a duty to assist a claimant in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical opinion be obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA and private treatment records. Further, the appellant submitted multiple private medical opinions in support of the claim. Moreover, she originally requested but subsequently withdrew a request for a hearing before the Board. Next, specific VA medical opinions pertinent to the issue on appeal were obtained. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the appellant nor her attorney have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs