Citation Nr: 1302144 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 05-33 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Rick D. Little, Attorney ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to March 1946. He died in April 2000. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2002 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) above. In a July 2010 decision, the Board denied service connection for the cause of the Veteran's death. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 memorandum decision, the Court vacated the July 2010 Board decision and remanded the case to the Board for further proceedings. In this case, the Board has not only reviewed the physical claims file, but also the file for the case on the Virtual VA electronic file system, to ensure a total review of the evidence. 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 The Veteran's Alzheimer's disease and medication to treat it possibly (at least as likely as not) contributed to causing a fall with head trauma in January 2000 that contributed substantially and materially to causing his death. CONCLUSION OF LAW Service-connected Alzheimer's disease and medication to treat it contributed substantially and materially to causing the Veteran's death. 38 U.S.C.A. §§ 1110, 1310, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In order for service connection for the cause of a veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.312. When it is determined that a veteran's death was service connected, his surviving spouse is generally entitled to dependency and indemnity compensation (DIC). See 38 U.S.C.A. § 101 (West 2002 & Supp. 2009). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death, that it combined to cause death, or 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 connection. 38 C.F.R. § 3.312(c)(1). The debilitating effects of a service-connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The appellant has asserted that service connection is warranted for the Veteran's death because his service-connected Alzheimer's disease led to a fall in January 2000, which resulted in a pulmonary embolus that was the immediate cause of his death. The official certificate of death lists the immediate cause of death as pulmonary embolus due to consequences of blunt head trauma that occurred three months prior to his death. The treatment records from Lancaster Community Hospital, where the Veteran was hospitalized at the time of his death, reflect that he presented for treatment in January 2000 complaining of confusion and an altered mental status. The examining physicians noted that the Veteran fell about two weeks prior to the admission and, since that time, had been acting peculiar with more and more lethargy. Examination, including a CAT scan, revealed a moderate size subdural hematoma, which was surgically removed in February 2000. Unfortunately, the evidentiary record only contains treatment records from Lancaster Hospital dated from January to February 2000. In December 2007, the Board remanded this claim in order for the RO to obtain outstanding treatment records from Lancaster Hospital, including records that documented the treatment received for the fall that occurred prior to the January 2000 hospital admission. On remand, the RO sent the appellant a letter requesting that she complete and return a new authorization and consent form for the release of the outstanding treatment records. However, the appellant never returned the authorization and consent form, as requested, and, thus, additional treatment records were not requested or obtained from Lancaster Hospital. As such, the Board has been unable to evaluate the development of the pulmonary embolus between February 2000 and his death two months later. The appellant has asserted that the Veteran's fall in January 2000 occurred during a chronic demented state and, thus, his Alzheimer's disease contributed to his death. The basis for this belief is very unclear. The record contains a medical opinion from a VA physician who reviewed the claims file in September 2009. The physician stated that it is less likely than not that the Veteran's fall, which resulted in the subdural hematoma that was the immediate cause of death, was caused by or a result of his Alzheimer's disease. In making this determination, the VA physician noted that falls are common in the elderly without Alzheimer's or dementia and, on occasion, result in a head injury. The VA physician noted that Alzheimer's disease does not predispose one to falls and that, while sensorimotor polyneuropathy could predispose one to falls, neurological examination conducted on the Veteran in September 1959 and December 1997 indicated that the Veteran had normal motor and sensory examinations. The VA physician also stated that the Veteran's service-connected bilateral foot cold injury disability were less likely than not to have resulted in the fall in January 2000, noting the normal neurological examinations in September 1959 and December 1997. In the March 2012 memorandum decision, the Court found that the Board's reliance on the September 2009 VA medical opinion was erroneous. The Court noted inaccuracies in the physician's report and found that the physician provided inadequate discussion of the specific facts of the Veteran's case. In light of the Court's concerns with this medical opinon, the Board requested an opinion from a VA medical specialist. In December 2012, a VA neurologist reported having reviewed the claims file. The neurologist discussed the Veteran's medical records, and discussed findings from records from the 1990s until the Veteran's death in 2000. The neurologist stated that falls in the elderly are related to multiple factors including environmental factors, medications, poor vision, and impairments of strength, gait, or balance. The neurologist noted that the medication Aricept, which the Veteran took for his Alzheimer's disease, has been associated with falls. The neurologist stated that advanced in Alzheimer's disease there also was likely an increased risk of falls. The neurologist indicated that it also was likely that the Veteran's dementia and medications used to treat it contributed to his fall. The VA neurologist who provided the opinion in 2012 is competent to address questions of medical causation and issues concerning falls, Alzheimer's disease, and head injury. The Board must note that the medical opinion of 2012 placed into serious question the Board's July 2010 determination that the Veteran's Alzheimer's was caused by his service in World War II, providing highly probative evidence against this finding. In this regard, it is important to note that the 2012 medical opinion does not clearly answer the question posed by the Board in November 2012. The Board has considered whether to remand this case once again in order to obtain another medical opinion. However, further delays in this case must be avoided (the appellant is widow of a World War II Veteran). The Board is attempting to obtain medical causation evidence based on events that occurred more than one-half century ago in light of theory of causation that is, a best, in significant question at this time. A medical opinion that meets the standards laid down with the Court's March 2012 decision would be, as best, challenging to obtain within the facts of this case. The Board simply cannot determine what caused the Veteran's Alzheimer or what caused him to fall that day in January 2000. Any medical opinion the Board could obtain on this issue would most likely be necessarily based on a series of "generalizations" in light of the fact that there is simply very little evidence upon which to make an adequate medical opinion in this case. Further attempts to clarify the evidence, particularly in light of the limited evidence available upon which to make a medical opinion, would be fruitless. The Board can not meet the requirements of the Court in this case. The Board therefore grants service connection for the cause of the Veteran's death. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 , 3.326(a) (2012). As the Board is granting the benefit sought on appeal, it is not necessary to discuss VA's duties to notify or assist the appellant in substantiating her claim. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs