Citation Nr: 1304755	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  09-07 822	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESSES AT HEARING ON APPEAL

The Appellant and her daughter


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel

INTRODUCTION

The Veteran served on active duty in the military during World War II, from August 1942 to November 1945.  He died in March 2007.  The appellant is his surviving spouse.  She appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In October 2011, as support for the claim, the appellant-widow and her daughter testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  At the outset of the hearing, the appellant-widow withdrew her appeal for Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318.  So that claim is no longer at issue.  38 C.F.R. § 20.204.

The Board held the record open for an additional 60 days following the hearing to allow the appellant-widow time to obtain and submit additional evidence in support of her claim for cause of death.  She did not submit any additional evidence since her hearing, however, or request more time.

Since, however, her claim required further development before being decided on appeal, the Board remanded the claim to the RO in March 2012 via the Appeals Management Center (AMC) in Washington, DC.  The additional development of the claim included especially obtaining a medical opinion concerning the likelihood the Veteran's posttraumatic stress disorder (PTSD) caused or contributed substantially or materially to his death.

In January 2013, after receiving the file back from remand for that additional development, the Board granted a motion to advance this appeal on the 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.  At the time of the Veteran's death in March 2007, service connection had been established for PTSD, which had been rated as 70-percent disabling effectively since December 28, 2001.  He also had had a total disability rating based on individual unemployability (TDIU) effectively since December 28, 2001.

2.  His death certificate lists the cause of death as a myocardial infarction, i.e., a heart attack, due to or as a consequence of anemia and hypoxia (also noting that he was a Jehovah's witness and, therefore, had refused blood products), which in turn was due to or a consequence of a ruptured internal abdominal aortic aneurysm.  

3.  The most probative evidence does not show a cause-and-effect correlation or substantial or material contribution between the service-connected PTSD and his death.

4.  He did not have heart disease or any abnormal findings indicative of the presence of an abdominal aortic aneurysm during his military service or for decades after his discharge from service, and the terminal conditions have not been etiologically linked to his military service.


CONCLUSION OF LAW

A service-connected disability did not cause or contribute substantially or materially to the Veteran's death.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1(k), 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all elements of a claim for service connection - including the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears this burden of proof of not only establishing there is a VCAA notice error but, moreover, above and beyond this, showing how the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Specifically with regard to claims for DIC benefits, including for cause of death, § 5103A VCAA notice must include:  (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected.  See Hupp v. Nicholson, 21 Vet. App. 342 (2007). 

A July 2007 letter from the RO initially advised the appellant of the type of evidence needed to substantiate her cause-of-death claim and explained what evidence VA was obligated to obtain or to assist her in obtaining and what information or evidence she was responsible for providing.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002).  It further deserves mentioning that the RO issued that July 2007 VCAA notice letter before initially adjudicating her claim in the August 2007 decision at issue in this appeal, so in the preferred sequence.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  


An additional VCAA letter dated in May 2009 advised her of the Veteran's 
service-connected disability when he died, PTSD, and provided an explanation of the evidence and information required to substantiate the cause-of-death claim based on this service-connected disability, or, alternatively, based on a condition not yet service connected, in compliance with Hupp, supra.  The Board also sees that, in her February 2009 substantive appeal (on VA Form 9), the appellant evidenced her actual knowledge of the disability that was service connected at the time of the Veteran's death and the resultant need for her to show this disability either caused or contributed substantially or materially to his death.  Actual knowledge is established by statements or actions by the claimant or representative demonstrating an awareness of what is necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).  More specifically, she spoke of how the Veteran's death was directly related to his service-connected PTSD.  Clearly then, she is well aware of the requirement to somehow link his death to his military service, including especially by way of this service-connected disability.  Cf. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  She is not alleging, and the evidence does not otherwise suggest, that the Veteran's death instead was in any way related to a condition not service connected at the time of his death, so other than PTSD.

Subsequent to the Board's remand, an additional VCAA letter was sent to the appellant in March 2012, and thereafter the claim was readjudicated by the AMC in an October 2012 SSOC.  Thus, she has been apprised of the evidence required to substantiate her cause-of-death claim, including, again, in terms of showing that a service-connected disability, and in particular the Veteran's PTSD, either caused or contributed substantially or materially to his death.  


As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA records - including the reports of his VA compensation examinations, and private treatment records.  The appellant also submitted a copy of his death certificate.

As the Board previously explained, in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a)  does not always require VA to assist the claimant in obtaining a medical opinion or examination for a DIC claim, but that it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim.  The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a Veteran, and therefore does not pertain to a DIC claim. Id.  But in Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008), the Federal Circuit Court held that, in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim.

The Board therefore remanded this claim in March 2012 for this further development - including especially for this medical nexus opinion concerning whether the service-connected PTSD, either caused or contributed substantially or materially to the Veteran's death.  The AMC then obtained this medical nexus opinion in April 2012.  The opinion is responsive to this determinative issue of causation, so in compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating a claimant is entitled to compliance with a remand directive as a matter of law, and that the Board is obligated to ensure this compliance and itself commits error in failing to).  The April 2012 opinion is unfavorable to the claim, and the AMC resultantly issued an SSOC in October 2012 continuing to deny this cause of death claim.

In response to the SSOC, the Veteran's representative, in December 2012, noted that after a claims file review, it appeared that all aspects of the Board's March 2012 remand had been addressed and that the claim was ready for further appellate review and deposition.  

There is no indication of any other evidence that needs to be obtained before readjudicating this claim.  The December 2012 statement from the appellant's representative does not refer to any such outstanding evidence.  VA has made the required efforts to assist the appellant with her claim for death benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c).

Merits of the Claim

The appellant-widow contends the Veteran's PTSD aggravated the conditions that caused his death, so contributed substantially or materially to his death, because the PTSD made him very confused, impatient, and resultantly affected his physical health, noting that he had lost a lot of weight by the time he died.  She also says he coughed rather constantly during the last several years of his life, and that VA had prescribed medications, etc.  Their daughter also attested to this during the October 2011 hearing before the Board.

When a Veteran dies from a service-connected disability, the Secretary shall pay DIC for such Veteran's surviving spouse, children or parents.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).  The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  Id.  A service-connected disability will be considered as the principal (primary) cause of death when such disability, 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). 

A contributory cause of death is inherently one not related to the principal cause.  38 C.F.R. § 3.312(c)(1).  In determining whether the service-connected disability contributed to death, 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.  Id.  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.  Id. 

It is recognized there are primary causes of death that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of co-existing 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. In this 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 itself, of a progressive or debilitating nature.  38 C.F.R. § 3.312(c)(4).

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).  In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions.  Id. 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  The determination as to whether the requirements of service connection are met is based on an analysis of all the evidence of record (medical and lay) and the evaluation of its competency and credibility to in turn determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Here, the Veteran's death certificate lists his March 2007 cause of death as a myocardial infarction, i.e., a heart attack, due to or as a result of anemia and hypoxia (also noting that he was a Jehovah's witness and, therefore, had refused blood products), which in turn was due to or a result of a ruptured internal abdominal aortic aneurysm.  

At the time of his death, service connection had been established for PTSD, which had been rated as 70-percent disabling effectively since December 28, 2001.  Also on account of his PTSD, he had been receiving a total disability rating based on individual unemployability (TDIU) effectively since that same date.
The Veteran's July 1942 induction examination and November 1945 separation examination reports do not mention any cardiovascular complaints, treatment, or diagnoses, nor do they show any abnormal findings indicative of the presence of an abdominal aortic aneurysm.  In other words, they make no reference to or mention of any of the conditions that were ultimately fatal, either in the way of a relevant subjective complaint (e.g., symptom, etc.) or objective clinical finding such as a pertinent diagnosis.

Relevant complaints and treatment are not shown in the record until more than 50 years after the Veteran's discharge from service.  In this regard, VA medical records show that, in 1993, the Veteran received a pacemaker.  Thereafter, in December 1995, he was admitted to a VA hospital due to complaints of sharp chest pain; he was treated and released with diagnoses of congestive heart failure, hypercholesterolemia, hypertension, and bradyarrhythmia, in pertinent part.  VA progress notes also reflect a history of coronary artery disease/CABG in February 1999.  Thus, as demonstrated, no evidence of record shows that he had heart disease during his service or within one year of his discharge.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.  Likewise, no evidence of record demonstrates that he had any relevant complaints or treatment pertaining to his aorta during his service.  The probative medical evidence of record is against a finding that his heart disease and abdominal aortic aneurysm were either directly or presumptively incurred in service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom.  Maxson v. Gober, 230 F.3d 1330, 1333  (Fed. Cir. 2000) (ruling that a prolonged period after service without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). 

Concerning the Veteran's service-connected PTSD, a VA examiner reviewed the entire claims file and provided a medical opinion in April 2012, in response to the Board's remand.  That examiner concluded that it is unlikely that the Veteran's PTSD caused or contributed substantially or materially to his death from myocardial infarction due to, or as a consequence of, a ruptured abdominal aortic aneurysm.  The examiner explained that an abdominal aortic aneurysm is a weakening in the musculature of a blood vessel which causes it to bulge outward and if it continues to worsen it often ruptures.  The examiner also indicated that ruptured aortic aneurysms are the 13th leading cause of death in the United States and affect men more than women.  Notably, the examiner stated that this condition occurs increasingly with advanced age, and at the time of death, the Veteran was 85 years old.  Ultimately, the examiner concluded that the Veteran's fatal death is not in any way related to his PTSD or stress.

Although the appellant-widow no doubt sincerely believes in the viability of her claim, the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481   (Fed. Cir. 1997).  The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record, so both lay and medical, and the evaluation of its competency and credibility to in turn determine its ultimate probative value.  Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

The April 2012 VA medical examiner's opinion is probative in this case as it is not just based on a review of the pertinent medical and other history but also is supported by sound rationale and considered the unique facts and circumstances of this specific case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 298 (2008) (indicating the probative value of a medical nexus opinion is not determined solely by whether the commenting physician reviewed the claims file, rather, by the factually accurate, fully articulated, sound reasoning for the conclusion expressed).  The opinion is supported by the evidence of record. 

The Board acknowledges the statements and testimony provided by the appellant and her daughter linking the Veteran's cause of death to his military service.  In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  But the Federal Circuit held in Buchanan that the Board equally retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence, against other evidence in the file to determine which evidence is more or most probative. 

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, (e.g., a broken leg, separated shoulder, flat feet (pes planus), varicose veins, ringing in the ears (tinnitus), etc.), (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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  So supporting medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology of disease.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  But if, instead, the type of condition at issue is not one that is readily amenable to lay diagnosis or probative comment on its etiology, there has to be medical evidence supporting the claim.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease or rheumatic fever).

In this case, the medical issue involved, i.e., the cause of the myocardial infarction that unfortunately resulted in the Veteran's death, is complex and lay persons such as the appellant and her daughter, without formal training, education, experience, and expertise in this area, are not competent to offer an opinion addressing whether the Veteran's service-connected PTSD caused or contributed substantially or materially to his death.  Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011).  So medical evidence is needed to support this claim and, unfortunately, for the reasons and bases discussed, the most probative medical evidence in the file is against the claim, not supportive of it.  See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the claimant's position.) 

None of the medical evidence in the file suggests or indicates that, as likely as not, the Veteran's fatal disorders were related to his military service.  Additionally, none of the medical evidence in the file, with this required rationale and likelihood, attributes the Veteran's death either principally or secondarily to his service-connected PTSD.  Accordingly, there is not the required connection between his unfortunate death and military service.  Consequently, the Board finds that the preponderance of the evidence is against the appellant-widow's claim of entitlement to service connection for the cause of his death.  There is no reasonable doubt to resolve in her favor.  38 C.F.R. § 3.102.  The Board is certainly sympathetic to the loss of her husband, but may not go beyond the factual evidence presented in this claim to provide a favorable determination.  Consequently, her appeal must be denied.


ORDER

The claim of entitlement to service connection for the cause of the Veteran's death is denied.


____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs