Citation Nr: 1303147 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-24 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1950 to April 1952. He died in March 2008. The Appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. This appeal was previously before the Board in March 2011, at which time it was remanded for further development. Available private treatment records were received, and an April 2011 opinion regarding the causes of the Veteran's death was obtained. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). Appellant has raised a claim for additional dependency and indemnity compensation (DIC) based on the Veteran having a 100 percent rating for eight years. This award is for additional compensation once DIC has been awarded. This matter is referred to the RO for appropriate action. 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. According to his death certificate, the Veteran died in March 2008. Cardiac arrest due to myocardial infarction due to diabetes was certified as the immediate cause of death and hypertension was certified as the underlying cause of death. 2. Neither heart disease, hypertension, nor diabetes had its onset in service, was manifested within one year of separation from active service, nor is any shown to be otherwise related to the Veteran's service or his service-connected disabilities. 3. The Veteran's service-connected disabilities were posttraumatic stress disorder (PTSD), residuals of gunshot wound, scar, and paralysis of the ulnar nerve. None of these disabilities is shown to have caused or contributed to the Veteran's death. 4. The preponderance of the evidence is against finding that the Veteran's death was proximately due to or the result of his active service or a service-connected disability. CONCLUSIONS OF LAW 1. A service-connected disability did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). 2. The causes of the Veteran's death, cardiac arrest due to myocardial infarction due to diabetes, and hypertension, were not incurred in or aggravated by active service, cannot be presumed to have been incurred therein, and are not related to a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103A, 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and 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. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Appellant was provided with VCAA notice in June 2008 and May 2009 letters. These letters generally explained the evidence necessary to substantiate her claim, her and VA's responsibilities in claims development, and that during the Veteran's lifetime, service connection was in effect for PTSD. Although arguably this notice may not have fully fulfilled the full notice requirements set out in Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the Board notes that the Appellant has specifically argued that the Veteran's service-connected PTSD caused and/or aggravated his death-causing heart disease and thus, caused or contributed to cause his death. This line of argument shows that she understands the basic requirements for substantiating her specific claim. Thus, given this actual knowledge, the Board finds that she was not prejudiced by any notice deficiency. Additionally, the Appellant was not prejudiced by the timing of the notice given as the case was subsequently readjudicated by an August 2012 supplemental statement of the case. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the service treatment records, VA treatment records, private medical records and VA and private medical opinions. Also of record and considered in connection with the appeal are various written statements provided by the Appellant and her representative on her behalf. The Board notes that an independent medical opinion concerning whether service-connected PTSD caused or contributed materially or substantially to the cause of the Veteran's death, or aggravated the coronary artery disease that caused the death was obtained in November 2012. Based on the foregoing, the Board finds that the Appellant has not been prejudiced by any failure of VA in its duties to notify and assist her, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of her claim at this time is warranted. II. Factual Background The Veteran's service treatment records do not show any findings of cardiovascular problems, diabetes or diabetes-related problems. On April 1952 separation examination, the cardiovascular and endocrine systems were found to be normal. An April 1957 special surgical examination X-ray of the chest indicated that there was no evidence of active or heart disease. A March 1969 letter from a private psychiatrist shows that the Veteran had been diagnosed with psychoneurosis. He reported having anxiety attacks for a number of years and having anxiety ever since he was treated for a bullet wound in his left arm in service. In a March 1970 letter, a private physician indicated that he treated the Veteran from February 1958 until December 1968 for an agitated depression and essential hypertension. In a March 1999 VA psychiatric examination, the examiner diagnosed the Veteran with PTSD and found a fairly clear linkage between the Veteran's symptoms and war experiences. In a May 1999 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating effective January 1999. Private medical records from 2003 show that views of the chest suggested impression of bibasilar atelectasis/infiltrate, with poor inspiration. There was normal myocardial perfusion on both stress and rest exams. Examination revealed a 1-2/6 systolic murmur notable on the apex. Private medical record from 2006 indicated chest X-ray revealed a normal size heart. The Veteran's death certificate shows that he died in March 2008. Cardiac arrest due to myocardial infarction due to diabetes was certified as the immediate cause of death, and hypertension was certified as the underlying cause of death. In an April 2008 letter, treating physician, Dr. R., indicated that the Veteran was in his care from June 2006 to March 2008. Dr. R indicated that the Veteran died in March 2008 most likely from cardiac arrest secondary to acute myocardial infarction. He also indicated that the Veteran had longstanding history of Type II diabetes, hypertension, and hyperlipidemia. Other risk factors for heart disease included remote history of smoking, which the Veteran quit in 1973. It was indicated that the Veteran received medication for his heart and blood pressure, and that his diabetes and blood pressure were controlled prior to his death. No autopsy had been performed. In a June 2008 letter, Dr. R, reiterated that the Veteran was treated for PTSD, hypertension, hyperlipidemia, and diabetes. The Veteran had been prescribed Zoloft and Xanax for symptoms associated with PTSD, and Aspirin, Metroprolol, Azor and Zocor for heart problems and blood pressure. The physician noted that the Veteran died in March 2008 most likely from cardiac arrest secondary to myocardial infarction. It was the physician's professional opinion that the PTSD was a cause or contributing factor to the myocardial infarction, which caused the Veteran's death. In October 2008, the Appellant indicated that the Veteran returned from Korea suffering from symptoms of severe PTSD. As a result, the family suffered a lifetime of nightmares, anti-social behavior, outbursts, alcoholism and addiction to psychiatric medication. The Appellant believed that if the Veteran had received the disability benefits he deserved when he first appealed after his discharge, he would not have developed the many physical illnesses he suffered from later in life. She asserted that the medical community and VA itself had issued numerous scientific studies indicating that PTSD causes heart attacks in Veterans. In an April 2009 medical opinion, a VA physician indicated that he had extensively reviewed the Veteran's claims file. The physician noted that the records showed that the Veteran had experienced essential hypertension treated as far back as 1958. It was unknown when the Veteran's other conditions had been diagnosed. The Veteran had referenced coronary artery disease in letters written in June 1999. He stated that he had experienced ventricular arrhythmia, and in February 1999 had suffered a walking heart attack that left some damage in the form of scarring. The physician noted that the Veteran had experienced multiple well known risk factors for coronary artery disease, which were all well substantiated in the medical literature. Additionally, his personal statement in the letters to the RO suggested that his heart conditions dated back to the 1990s. While there was clear documentation of longstanding psychiatric disease, the physician indicated that the medical literature did not support that PTSD causes coronary artery disease. The physician reasoned that the note from the Veteran's treating physician that the Veteran's PTSD caused or was a contributing factor to his coronary artery disease was a personal opinion only and not substantiated by the medical literature. The Veteran's multiple risk factors, including hypertension, diabetes and hyperlipidemia, likely were the principal causes of his death or contributed substantially or materially to his death. In a May 2009 letter, Dr. R indicated that the Veteran's medical records showed that he had a long history of severe PTSD and that he subsequently developed coronary artery disease and other related health problems. Medical studies, including the Veterans Affairs Normative Aging Study and studies by Geisinger Health Systems had concluded that patients with PTSD were more likely to develop coronary artery disease, and that PTSD significantly increased the risk of death from coronary artery disease. Consequently, it was Dr. R's professional opinion that the Veteran's long term PTSD symptoms were a cause of, and directly aggravated his coronary artery disease and subsequently, were a cause of, or major contributing factor to, the myocardial infarction, which caused the Veteran's death. In an April 2011 follow-up opinion, the VA physician indicated that the records could not distinguish whether the Veteran's PTSD caused the cardiovascular disease. The multiple risk factors of hypertension, diabetes and hyperlipidemia were established risk factors for coronary artery disease and were sufficient to account for the Veteran's clinical course. Consequently, he found no basis for finding that the PTSD caused or aggravated the Veteran's heart disease. The VA physician noted that his prior medical opinion and the opinion of the private treating physician could be understood in terms of what emphasis is given to which sources of evidence. He indicated that one of the articles cited by the private physician concluded that 'a higher level of PTSD symptoms may increase the risk of coronary heart disease in older men.' The other article suggested that 'early-age heart disease may be an outcome after military service among PTSD positive Veterans.' The VA physician found that these studies had various strengths and limitations, which precluded a definitive conclusion as to whether PTSD 'causes' coronary heart disease. In particular, he indicated that aspects of the cited articles introduced additional uncertainty specific to the Veteran's case regarding the scope of a potential PTSD-coronary artery disease relationship. In the first cited article, patients with diabetes were excluded; thus the relevance of the report to the Veteran's case was undetermined. In the second article, the focus was on early heart disease defined as less than 65 years old; thus the relevance of the report to the Veteran, who was in his 70s when heart disease became manifest was undetermined. The VA physician found that the Veteran's cardiovascular problems that caused death were less likely than not (less than a 50% probability) caused by, or a result of, his PTSD symptoms. He indicated that the Veteran's other cardiac risk factors more likely than not accounted for his coronary artery disease. He also indicated that the impact of the Veteran's PTSD symptoms in causing any aggravation of the cardiovascular problems that caused death could not be determined without resort to mere speculation. Pursuant to a request for an independent medical opinion from a specialist in cardiology, in November 2012, Dr. C from Howard University Hospital, reviewed the Veteran's medical records in consideration of the likelihood that the Veteran's PTSD contributed to his myocardial infarction and death. Dr. C. was aware that the Veteran died of cardiac arrest, secondary to myocardial infarction, and also had a history of diabetes mellitus and hypertension. Dr. C summarized the claims folder, indicating that the Veteran had been diagnosed with PTSD, which was believed to have been undiagnosed for nearly 50 years, dating to his combat service during the Korean War. The Veteran suffered from severe anxiety and moderate to severe psychiatric symptoms, and was treated with Zoloft and Xanax. He was also diagnosed with hypertension, treated with Lopressor, Hydrochlorothiazide, and Lotrel; and, hyperlipidemia, treated with Zocor and dietary restriction. The Veteran was also treated for Type II diabetes mellitus with Actos and Avandia. The Veteran had a remote tobacco use history, and had stopped smoking in 1973. The Veteran had a preoperative persantine sesamibi study prior to gallbladder surgery, which was negative for myocardial ischemia and showed a left ventricular ejection fraction of 50 percent in 2003. The issue raised concerns whether the PTSD contributed to his death, or aggravated the coronary artery disease. Dr. C. indicated that in the Archives of General Psychiatry, Kubzansky et. al., reported that PTSD symptoms and coronary heart disease were linked in a prospective fashion after controlling for depressive symptoms possibly due to dysregulation of the stress response system. This study, however, did not consider patients who were diabetic. In addition, Dr. C. indicated that the study concluded that "the effects of PTSD symptoms on the risk of CHD appear to be somewhat modest." Dr. C also considered that in Psychosomatic Medicine, Boscarinio examined early-age heart disease in Vietnam Veterans to determine the risk of cardiovascular disease in PTSD patients. This study, according to Dr. C, determined that heart disease mortality was related to severity of PTSD. This study's weakness, however, included an inability to evaluate factors related to the PTSD and heart disease such as ongoing substance use, changing psychosocial status, or other cardiovascular risk factors. Further, the study did not include diabetic patients. More data was available on coronary artery disease patients who developed PTSD following myocardial infarction or coronary artery bypass surgery. Based on the above, Dr. C concluded that with significant risk factors such as hyperlipidemia, male gender, age, and hypertension, as well as coronary artery disease equivalent of Type II diabetes mellitus, it could not be said that PTSD caused or contributed materially to the Veteran's cardiac arrest following myocardial infarction. III. Law and Regulations Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Certain listed, chronic disabilities, hypertension, heart disease, and diabetes, are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Appellant seeks service connection for the cause of the Veteran's death. In order to establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. IV. Analysis The Veteran's death certificate shows that cardiac arrest due to myocardial infarction due to diabetes was the immediate cause of death and that hypertension was the underlying cause of death. Notably, the service treatment records are negative for any clinical reference to hypertension, other cardiovascular problems or diabetes. Then, post-service, hypertension is not shown until 1958 and diabetes and heart disease are not shown until much later. A lengthy interval of time between service and initial postservice manifestation of a "disability" for which service connection is sought is, of itself, a factor against a finding that the disability was incurred or aggravated in service. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, there is no medical or lay evidence indicating that these disabilities were directly related to service, nor has the Appellant alleged that such a relationship exists. Moreover, the evidence does not suggest that the Veteran's death was related to his service-connected disabilities of residuals of gunshot wound, scar and paralysis of the ulnar nerve. Given the absence of a diagnosis and treatment for the causes of his death for many years after service, the evidence does not support a finding that any of these disorders are related to active duty based on continuity of symptomatology. The Appellant has asserted that the Veteran's PTSD contributed to cause his death by causing or aggravating his death-causing heart disease. The medical evidence, however, does not support this assertion. In this regard, the Board finds most persuasive the Independent Medical Examiner's opinion, indicating that the PTSD did not cause or contribute materially to the Veteran's cardiac arrest following myocardial infarction. This opinion was provided by a specialist, specifically a cardiologist, who considered the medical evidence of record. The examiner also considered whether the PTSD aggravated the coronary artery disease, and reasoned that there was more data available on patients who developed PTSD after a myocardial infarction or coronary artery bypass graft (emphasis added). His conclusion, although not explicit, in combination with his evident review of the VA physician's opinion discussed below, and indication that PTSD did not "contribute materially" to death are sufficient. He specifically considered the studies which were referenced in the private physician's positive nexus opinion, and discussed weaknesses in these studies. He then considered the Veteran's other significant risk factors, in concluding that PTSD did not cause or contribute materially to the Veteran's cardiac arrest following myocardial infarction. In addition, the Board finds the opinion of the VA physician, indicating that the Veteran's PTSD did not cause his heart disease persuasive. The VA physician specifically reviewed the medical studies relied upon by the private physician in formulating his opinion and specifically explained why these studies could not be relied upon in the Veteran's case (i.e. the first study had excluded Veterans with diabetes and the second study dealt with younger Veterans). Also, along with refuting the rationale for the private physician's opinion (i.e. the cited studies), the VA physician also provided a specific rationale for his own conclusions; that the multiple risk factors of hypertension, diabetes and hyperlipidemia were sufficient to account for the Veteran's clinical course. The physician also indicated that without resort to speculation it was not possible to determine whether the PTSD aggravated the heart disease. This rationale, along with the lack of medical literature indicating that PTSD aggravates existing heart disease in similarly situated Veterans, also provides an acceptable explanation as to why the physician could not find, without resort to speculation, that the Veteran's PTSD aggravated his heart disease. See Jones v. Shinseki, 23 Vet. App. 382 (2010) ("It must be clear on the record that the inability to opine on questions of . . . etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."). Thus, the weight of the medical evidence is against a finding that the Veteran's death-causing heart disease was caused or aggravated by his PTSD. Moreover, the weight of the evidence is against a finding that the Veteran's PTSD caused or aggravated his hypertension or diabetes. The Board acknowledges the Appellant's contentions, that the PTSD caused and/or aggravated the Veteran's heart disease, cognizant that 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); 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). Although the Appellant is competent to attest to observable symptomatology, her competency is distinguished from weight and credibility, which is a factual determination, and goes to the probative value of the evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Board does not find the Appellant competent to determine the diagnosis and causation of the Veteran's cardiovascular disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the weight of the evidence is against a finding that the Veteran's PTSD caused, or contributed to cause, his death. In summary given that hypertension, heart disease and diabetes were not shown in service or for at least six years thereafter; given that there is no evidence or allegation that any of these diseases were directly related to service; and given that the weight of the evidence is against a finding that the Veteran's PTSD caused or aggravated his death-causing heart disease, service connection for the cause of the Veteran's death is not warranted. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs