Citation Nr: 1306102 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 10-21 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma 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 Appellant, Appellant's son ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from March 1958 to March 1962 and from June 1962 to February 1968. He also had additional service in the Air National Guard. He died in June 2002. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for the cause of the Veteran's death. The matter has since been transferred to the RO in Muskogee, Oklahoma. A Travel Board hearing was held in June 2011 with the appellant and her son in Muskogee, Oklahoma, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The case was then remanded by the Board in August 2011 and June 2012 for further development. That development has been completed, and the case returns to the Board for additional review. The appellant's Virtual VA file has been reviewed as part of her appeal. FINDINGS OF FACT 1. The death certificate reflects that the Veteran died in June 2002 at the age of 62. The immediate cause of death was determined to be peripheral vascular disease, due to spinal cord ischemia, due to mesenteric ischemia. 2. At the time of the Veteran's death, service connection was not in effect for any disabilities. 3. The Veteran's diabetes mellitus type II is etiologically related to service. 4. The Veteran's death was not etiologically related to service, to include diabetes mellitus presumed to have been incurred in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the appellant's claim, a letter dated in September 2008 was sent to the appellant in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The appellant was notified of the evidence that was needed to substantiate her claim; what information and evidence that VA will seek to provide and what information and evidence the appellant was expected to provide, and that VA would assist her in obtaining evidence, but that it was her responsibility to provide VA with any evidence pertaining to her claim. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The appellant was also notified of the criteria for establishing effective dates. See Dingess. Therefore, she received complete notice regarding her claim for service connection for the cause of the Veteran's death. B. Duty to Assist The Veteran's service treatment records and private treatment records, as well as the appellant's lay statements and hearing testimony, have been associated with the claims file. Pursuant to the August 2011 remand, the appellant was afforded an additional opportunity to submit treatment records in support of her claim, or to identify the Veteran's medical providers so that VA could obtain those records on her behalf. However, the appellant did not provide any further information. In addition, the claims file contains VA medical opinions addressing the cause of the Veteran's death. In Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) made clear that § 5103A(d) does not apply to DIC claims. Rather, § 5103A(a) applies. Section 5103A(a) requires VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim" and only excuses VA from making reasonable efforts to provide such assistance, if requested, when "no reasonable possibility exists that such assistance would aid in substantiating the claim." Wood, 520 F.3d at 1348. Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To that end, the claim was remanded in August 2011 and June 2012 to obtain an adequate opinion. The VA opinions obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's cause of death. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the appellant with the opportunity to submit evidence and argument in support of her claim. The appellant has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for Cause of Death A. Applicable Law Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, 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) (2012). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c) (2012). 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. 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) (2012). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). B. Evidence The Veteran died of peripheral vascular disease, due to spinal cord ischemia, due to mesenteric ischemia. Initially, the Board notes that service treatment records are negative for any complaints, treatment, or diagnoses of peripheral vascular disease or ischemia. At the time of his death, he was not service-connected for any disabilities. The appellant contends that the Veteran had diabetes mellitus that was attributable to service and also contributed to his death. The Board notes that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2012). In this case, as noted in the June 2012 remand, the Veteran's records reflect that he served in the Republic of Vietnam during the applicable period. Therefore, exposure to herbicides is presumed. Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, then diabetes mellitus type II shall be service-connected if the requirements of 38 C.F.R. 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Here, private treatment records dated June 2002 reflect a diagnosis of Type II diabetes mellitus. In light of the Veteran's service in the Republic of Vietnam and the applicable presumptions, the Veteran's diabetes is presumed to have been incurred in service. These records show the Veteran was admitted on June [redacted], 2002 for abdominal pain. He was noted to have no pulses in his lower extremities and noted to have obvious artery obstruction in the aortoiliac level. He underwent surgery, and was noted to have good pulses afterward. However, he did not wake up when subsequently seen for ventilatory support. A history of significant weight loss, craving sweets, and feeling thirsty was noted. He was also noted to have upper gastrointestinal bleeding. The assessment was the Veteran was admitted with abdominal pain, lower extremity weakness and numbness, and absent pulses. He was thought to have mesenteric ischemia, ischemic gastritis, and a possible spinal cord ischemic event as well. His overall diagnosis was very poor, and hemodialysis was initiated. The Veteran never regained consciousness, and he expired on June [redacted], 2002. A March 2010 VA opinion was obtained. The examiner reviewed the claims file and noted the above history. He also noted that the Veteran had severe weight loss and abdominal pain for which a colonoscopy had been performed 2 months earlier. He did not have significant hyperglycemia at that time. One of the Veteran's treating physician's opined that his ischemic colitis was associated with his smoking. It was also noted that the Veteran was diagnosed with diabetes mellitus about two weeks prior to his admission and treated with medication. He had smoked 2 to 3 packs per day. He also had a history of hypertension. The examiner opined that it was less likely than not that peripheral vascular disease was due to apparently mild diabetes. The Veteran was a chronic smoker and had hypertension, which were the more likely etiologies for his peripheral vascular disease. A November 2010 statement from the appellant's representative noted that the Veteran had refused medical treatment for most of his life. While he was diagnosed with diabetes shortly before his death, it was unknown how long he might have had it. He had unexplained weight loss, which is a symptom of uncontrolled diabetes, and peripheral vascular disease, which is a complication of diabetes. In a December 2010 statement, the appellant made the assertion that the March 2010 examiner was speculating regarding the etiology of the Veteran's death. The appellant and her son testified at a Travel Board hearing in June 2011. They testified that the Veteran had suffered through many things in life without seeking medical treatment. When he was hospitalized, he was noted to have elevated blood glucose levels. They argued that the conclusion of the VA examiner that the Veteran had "mild" diabetes was not consistent with the treatment reports. They also argued that while the Veteran was diagnosed with diabetes shortly before his death, it was unknown exactly when the onset date was. In addition, while the examiner attributed the Veteran's death to smoking, the available treatment records did not demonstrate any significant lung disorder. They noted that the Veteran had generally complained about numbness in his legs for about a year prior to his death. The appellant also submitted an article regarding diabetes, which noted that unexplained weight loss was a symptom of the condition, and that high blood sugar levels of persons with diabetes can damage blood vessels and lead to peripheral vascular disease. Pursuant to the Board's August 2011 remand, a supplemental opinion was obtained from the March 2010 VA examiner. However, the response consisted only of a statement that the claims file was reviewed. Therefore, the matter was remanded again in June 2012, and a July 2012 VA opinion was obtained from a different examiner. He stated that it was less likely than not that peripheral vascular disease was due to mild diabetes. The Veteran was a chronic tobacco user and had hypertension, both of which led to peripheral vascular disease and his death. The Veteran's diabetes was newly diagnosed, being treated with oral medication, and under good control. Therefore, it did not cause or aggravate his peripheral vascular disease. C. Analysis Based on the evidence of record, the Board finds that service connection for the Veteran's cause of death is not warranted. First, there is no evidence to indicate that the peripheral vascular disease and ischemia which caused the Veteran's death were directly related to service. Service treatment records do not reflect these conditions, and the appellant has not alleged that they had their onset or were otherwise related to service. Moreover, although the Veteran's diagnosed diabetes is attributable to service, the March 2010 and July 2012 VA examiners both concluded that the Veteran's peripheral vascular disease was less likely than not related to diabetes. Rather, it was the result of the Veteran's hypertension and history of smoking. These opinions were based on a review of the claims file, including the treatment records and testimony contained therein, and supported by adequate bases. There is no competent medical opinion that refutes these conclusions or positively states that the Veteran's death is attributable to diabetes. The Board has considered the statements of the appellant, her son, and her representative in evaluating her claim. Notably, they are competent to report on the Veteran's symptoms and behavior for the period prior to his death. However, they have not been shown to have the necessary knowledge or expertise to attribute his peripheral vascular disease to diabetes. Therefore, their statements to that effect are not competent evidence of a link between those conditions and cannot be used to establish service connection. While the appellant also submitted treatise information in support of her claim, this evidence only suggests that peripheral vascular disease can result from diabetes. The Board finds this evidence to be less probative than the medical opinions in this case, which addressed the history and findings specific to this Veteran. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (medical statement and/or treatise evidence that was too generic and inconclusive as to the specific facts in a case was insufficient to establish causal link). The preponderance of the evidence is against finding that the Veteran cause of death was etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the appellant's claim. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs