Citation Nr: 1301786 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 12-19 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1943 to January 1946, and from September 1950 to October 1951. He died in December 2010, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of July 2011. 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 died in December 2010, at the age of 85 years, of respiratory failure, due to or as a pulmonary hypertension, due to or as a consequence of chronic obstructive pulmonary disease. Other significant conditions contributing to death but not resulting in the underlying cause of death were obstructive sleep apnea and morbid obesity. 2. At the time of his death, service connection was in effect for hearing loss and tinnitus, assigned respective 40 percent and 10 percent ratings from September 2002, and for residuals of cold injury of the right and left hands, each assigned a 30 percent rating, for residuals of cold injury of the right and left lower extremities, each assigned a 30 percent rating, and for peripheral vascular disease of the left lower extremity, assigned a 20 percent rating, effective from November 2003. His combined evaluation was 90 percent, and he was in receipt of a TDIU rating, effective in November 2003. 3. None of the Veteran's service-connected disabilities played a causal role in his death. 4. The disabilities which caused the Veteran's death were first shown many years after service and were unrelated to service, or to service-connected disabilities. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in March 2011, the RO notified the appellant of the information necessary to substantiate the claim on appeal, and of her and VA's respective obligations for obtaining specified different types of evidence. She was told that the evidence must show a causal relationship between the Veteran's death and an injury, disease or event in military service. She was advised of various types of lay and medical evidence that could substantiate her claim. She was provided with information regarding effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). She was provided an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, and 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). She was notified of the service-connected disabilities at the time of the Veteran's death. Under the VCAA, the VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Service treatment records have been deemed to be unavailable. After action reports related to World War II service were obtained. Also of record area the Veteran's death certificate and identified, available post-service VA and private medical records. The appellant has not identified any other potentially relevant information or evidence. A medical opinion from his private physician was obtained in April 2011. A VA medical opinion was obtained in April 2012; this opinion was based on a review of the file, and contained rationales for the opinions sufficient for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, the appellant has not 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 to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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). Service connection for the cause of the veteran's 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. 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. For a service-connected disability to constitute a contributory cause, it must be shown that it 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 relationship. 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. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). 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). Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted on a presumptive basis for certain chronic diseases, such as cardiovascular disease, if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service- connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) (2010); see Allen v. Brown, 8 Vet. App. 374 (1995). According to the death certificate, the Veteran died in December 2010, at the age of 85 years. The immediate cause of death was respiratory failure, due to or as a pulmonary hypertension, due to or as a consequence of chronic obstructive pulmonary disease. Other significant conditions contributing to death but not resulting in the underlying cause of death were obstructive sleep apnea and morbid obesity. The medical certifier was D. Strodthoff, M.D. At the time of his death, service connection was in effect for hearing loss and tinnitus, assigned respective 40 percent and 10 percent ratings from September 2002, and for residuals of cold injury of the right and left hands, each assigned a 30 percent rating, for residuals of cold injury of the right and left lower extremities, each assigned a 30 percent rating, and for peripheral vascular disease of the left lower extremity, assigned a 20 percent rating, effective from November 2003. His combined evaluation was 90 percent, and he was in receipt of a TDIU rating, effective in November 2003. The appellant contends that the Veteran's death was due to his inability to engage in any kind of physical activity or excise, which was due to his service-connected cold injury residuals. This caused his morbid obesity, which in turn caused or exacerbated the other conditions which ultimately led to his death. In support of her contentions, the appellant obtained an opinion from the Veteran's treatment physician for many years, D. Strodthoff, M.D., who wrote, in April 2011, that communicating the Veteran's disease process and contributing to his death was morbid obesity, which in turn led to complications of obstructive sleep apnea and hypertension. His obesity was exacerbated by bilateral involvement of the lower extremities with peripheral neuropathy. In part, the neuropathy was due to his chronic pedal edema and diabetes, but was thought to be influenced also by his history of frostbite injury in service. He also had underlying coronary artery disease as well as peripheral vascular disease, which worsened the neuropathy, decreasing the ability to engage in exercise involving the lower extremities. Overall, the physician felt that the peripheral neuropathy impacted all of his other health conditions and inability to be mobile, which in turn contributed to his decline. VA obtained an opinion in April 2012. The physician provided a detailed summary of the medical evidence on file, and stated that after review of the extensive medical records, which showed that his inability to exercise, thus worsening his underlying obesity, was overwhelmingly due to his severe shortness of breath and dyspnea on exertion due to his diagnoses of steroid and oxygen dependent COPD and pulmonary hypertension. The sleep apnea was felt to be due to the obesity, but there was no evidence that the cold injury residuals were responsible for the inactivity leading to obesity. The Veteran also had other comorbidities including congestive heart failure with cardiomyopathy and diabetes mellitus. Although he had chronic history of extremity discomfort, this was more likely as not a result of peripheral vascular disease and neuropathy, and more likely as not due to his diagnosis of diabetes mellitus. The physician stated that it would be very unusual for residuals of frostbite to not significantly present themselves until many years after the initial episode, whereas the evidence indicated that he did not have significant lower extremity discomfort, which interfered with his activities of daily living, until a hospitalization in June 2000. Instead, he worked in a steel mill for 40 years. The examiner stated that there was also no evidence that the Veteran had significant symptoms in the extremities due to cold injury residuals After the hospitalization in July 2000 for respiratory difficulties, he was placed on BiPAP with significant improvement in his dyspnea. As his dyspnea improved, he was more active and his weight decreased. When the dyspnea worsened, he became less active and his weight increased. The physician concluded that although the Veteran had complaints of chronic lower extremity pain, weakness, and stiffness, the lower extremity complaints did not contribute substantially to the Veteran's inability to exercise due to cold injury residuals. The Veteran's morbid obesity was significantly worsened by the severe respiratory decompensation. The medical records are clear that the most limiting fact in the Veteran's ability to exercise or engage in any aerobic activity was his severe respiratory status. 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, at 1377. Where medical expertise is necessary to establish a diagnosis or to address questions of medical causation; lay assertions of medical status, lay statements do not constitute competent medical evidence for these purposes. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, the question as to whether the Veteran's cold injury residuals contributed to the cause of the Veteran's death is a matter requiring medical expertise, and the appellant, while credible, is not competent to answer this medical question. Factors that are relevant to the probative value to be given to medical statements include the level of explanation or rationale contained in the opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (bare conclusion is not entitled to any weight); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for an opinion goes to the weight or credibility of the evidence). The private doctor's conclusion, that the peripheral neuropathy impacted all of his other health conditions and inability to be mobile, which in turn contributed to his decline, is insufficient to establish a causal, rather than casual, connection to obesity, let alone the cause of death. First, she stated that the neuropathy was "due to" his chronic pedal edema and diabetes, but merely "influenced" by his history of frostbite injury in service. In addition, she was the same doctor who signed the death certificate, and it is significant that she did not list cold injury residuals as a direct or contributory cause of death on this official report. This failure to link any cold injury residuals to the cause of death is also consistent with her own treatment records pertaining to the Veteran, which do not show that, during the period from 1999 to 2010, she attributed the Veteran's obesity, decreased mobility, or other ill health to frostbite residuals. In contrast, the VA opinion was based on a thorough review of the record, and is consistent with the findings in those records, which show that his activities were primarily limited by non-service-connected pulmonary conditions. In view of these factors, the Board finds that the VA opinion is more probative than the private doctor's opinion, and is consistent with the remainder of the medical evidence. In sum, the evidence shows that the Veteran's non-service-connected respiratory conditions led to his death, and that none of his service-connected disabilities, including cold injury residuals and peripheral vascular disease of the left lower extremity, caused or contributed materially or substantially to the veteran's death, nor were the diseases which led to his death present in service, or for many years thereafter. As the preponderance of the evidence is against the claim for service connection for the cause of the veteran's death, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1365; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the veteran's death is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs