Citation Nr: 1306487 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 11-11 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her daughters ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from September 1943 to September 1945, and who died in March 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. In April 2012, the case was remanded for further development. 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 March 2009; his death certificate lists the cause of death as pneumonia; and a March 2009 statement from A. R., M.D., the Veteran's physician at Seacrest Village, provides "a secondary cause of death due to complications related to Artherosclerotic Heart Disease." 2. Pneumonia and atherosclerotic heart disease were not manifested in service or in the first year following the Veteran's discharge from service; and are not shown to be related to his service or to have been caused or aggravated by his service-connected disabilities (bilateral lower extremity cold injury, pes planus, and residuals of a below the left knee shrapnel wound.) 3. The Veteran's service-connected disabilities of residuals of cold injury of both lower extremities, rated 30 percent for each extremity; pes planus, rated 10 percent; and muscle injury residuals of a left below the knee shrapnel wound, rated 10 percent are not shown to have caused or contributed to cause his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 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). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected disability; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was advised of VA's duties to notify and assist in the development of the claim. While she did not receive complete notice prior to the initial rating decision, a May 2012 letter provided essential notice prior to the readjudication of her claim. Specifically, it identified the Veteran's service connected disabilities and provided an explanation of the evidence and information required to substantiate a DIC claim based on such disabilities, as well as an explanation of the evidence and information required to substantiate a DIC claim based on any conditions not yet service-connected. This letter provided notice that complied with Hupp and explained the evidence VA was responsible for providing and the evidence the appellant was responsible for providing. The May 2012 letter (along with April 2009 and August 2009 letters) informed the appellant of effective date criteria. A December 2012 supplemental statement of the case (SSOC) readjudicated the matter. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim). The Veteran's service treatment records are associated with his claims file, and pertinent postservice treatment records have been secured. The RO secured medical advisory opinions from a VA internist in August 2009 and (pursuant to the Board remand) in August 2012. In March 2012, the appellant's representative requested that VA secure a second opinion from a medical provider other than the one who provided August 2009 opinion. However, the same VA provider provided both the August 2009 and August 2012 opinions. As will be discussed in greater detail below, these medical advisory opinions cumulatively are adequate for rating purposes; they reflect familiarity with the entire record, and include adequate explanation of rationale. As the opinions are by a healthcare professional (who is qualified to provide the opinions sought), as the medical questions posed are not of a complexity beyond the competence of an internist, and as the internist explained the rationale for the opinions given, the Board finds that the August 2009 and August 2012 opinions are both probative and compliant with the Board's remand instructions. Therefore, another remand for an opinion by a different examiner is not required. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (VA may satisfy its duty to assist by providing a medical examination conducted by someone who is able to provide "competent medical evidence" under 38 C.F.R. § 3.159(a)(1)). The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. To establish service connection for the cause of the 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; 38 C.F.R. § 3.312(a). 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). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases (including cardiovascular disease), may be established on a presumptive basis, if they are manifested to a compensable degree in a specified period of time postservice (one year for cardiovascular disease). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran died in March 2009. His death certificate lists the cause of his death as pneumonia. A March 2009 statement from Dr. A. R., the Veteran's physician at Seacrest Village, states that "the primary cause of death was due to pneumonia; with a secondary cause of death due to complications related to Artherosclerotic Heart Disease." At the time of his death, the Veteran's service-connected disabilities included cold injury of both lower extremities, pes planus, and muscle injury residuals of a left below the knee shrapnel wound. From November 12, 2008, he was also assigned a total disability rating based on individual unemployability (TDIU). The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to a chronic respiratory disability or cardiovascular disease. A September 1945 Final Summary (recommending his discharge from military service because of constant complaints related to bilateral trench foot) is silent for repiratory or cardiovascular complaints or findings. Consequently, service connection for the disabilities identified as causing the Veteran's death on the basis that they became manifest in service and persisted is not warranted. Inasmuch as there is no evidence that the Veteran's atherosclerotic heart disease was manifested in the first year following his discharge from active duty, service connection for such disease under the chronic disease presumptive provisions of 38 U.S.C.A. § 1112, 38 C.F.R. §§ 3.307, 3.309 likewise is not warranted. There is also no evidence in the record that relates either pneumonia or atherosclerotic heart disease to the Veteran's service. The appellant has not submitted any competent (medical) evidence showing or suggesting that there is a relationship between the death-causing disabilities and the Veteran's service. What remains for consideration is whether or not the Veteran's service-connected disabilites contributed to cause his death. May 2007 VA treatment records note bilateral leg edema; and May 2008 records note complaints of "frostbite-numbness of the left lower leg BK [below the knee] since frostbite occurred." Private treatment records show that the Veteran was admitted to Sea Crest Village Nursing and Rehabilitation Center in December 2008. These records show that he was treated for multiple falls and respiratory complaints. His diagnoses included Alzheimer's disease, hypothyroidism, skin cancer, acute pain, non-healing surgical wound, anxiety state, insomnia, depressive disorder, malaise and fatigue, deficiency anemia, acute sinusitis, cellulitis of the leg, and edema. He died in March 2009 during transfer to a hospital. A May 2009 statement from R. M. L., M.D., states the Veteran required split-thickness skin grafting and he "had poor healing of the site due to atherosclerotic cardiovascular disease and local chronic venous insufficiency." Dr. R. M. L also stated that the Veteran's "venous stasis issues may have been related to previous shrapnel wounds of his legs" and "his venous insufficiency may have been caused or worsened by his previous war wounds." In August 2009, a VA physician reviewed the Veteran's claims file, noted his service-connected cold and shrapnel injuries and pes planus, and opined that "there is no pathophysiologic relationship between the development of pneumonia and the service connected conditions." The provider explained that "the Veteran was quite elderly and infirmed and succumbed to natural causes. Therefore it is unlikely in any fashion, that the Veteran's service connected illnesses resulted in the Veteran['s] demise." An April 2011 statement from A. O., M.D., notes that Dr. A.O. treated the Veteran during his 2008 hospitalization and subsequent stay in the nursing home. Dr. A.O. notes that the Veteran "had a history of Ambulatory Dysfunction, Hypothyroidism, Basal Cell Carcinoma, Venous Stenosis Ulcers due to poor peripheral circulation" and "[d]espite optimum medical management his health continued to decline till his death in March 2009." A May 2011 statement from the appellant's daughter alleges that, because the Veteran was unable to get out of bed due to his service-connected circulatory problems, he developed his death causing pneumonia. Alternatively, she argues that his inability to ambulate contributed to the decline of his health and inability to fight off pneumonia. Similarly, the appellant alleges that the Veteran was unable to overcome his death causing pneumonia because, "[w]ith an already weakened and depleted immune system stemming from the debilitating effects of his service connected disabilities (and residual disabilities of cold injury such as cellulitis etc.), this Veteran had little or no chance of resisting, fighting off or overcoming the terminal effect of Pneumonia." (See March 15, 2012 statement and other written communications and hearing testimony). In an August 2012 supplement to the August 2009 opinion, a VA physician reviewed the Veteran's claims file and noted his service-connected pes planus, old leg injury and cold injury residuals. The examiner also noted that the Veteran succumbed to pneumonia and opined that "[i]n no way pathophysiologically" did "the veteran's service-connected illnesses affect or deplete his immune system; therefore, it is unlikely that the veteran's death is related to service-connected illnesses." The examiner explained that "there is no pathophysiological relation between flat feet, old leg muscle injury, cold injury residuals, and the immune system." The record includes both medical evidence that tends to support the appellant's claim that the Veteran's service-connected disabilities contributed to cuase his death and medical evidence that is against the claim. The evidence that tends to support the appellant's claim consists of the May 2009 statement from Dr. R. M. L. and the hearing testimony and written statements from the appellant and her daughters. The May 2009 statement provided by Dr. R. M. L., that the Veteran's "venous stasis issues may have been related to previous shrapnel wounds of his legs" and "his venous insufficiency may have been caused or worsened by his previous war wounds" has very limited probative value when considered with the other evidence in the record as it is phrased in terms (i.e., "may have") that are general and speculative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). This is particularly so in light of the fact that Dr. R. M. L. also notes other medical problems (skin cancer and atherosclerotic cardiovascular disease) which impacted on the Veteran's health. Given the language used, the Board finds this opinion somewhat supportive of the appellant's claim, but less than persuasive. Regarding the statements and hearing testimony of the appeallant and her daughters, the Board does not question that they are sincere in their belief that a weakened physical condition (due to service-connected disabilities) caused his pneumonia and prevented him from overcoming the death-causing the illness. However, their statements in this regard are not competent evidence. As laypersons, they lack the training to opine on the medical questions presented in this case. In particular, they are not competent to link the Veteran's debilitated state to his service-connected disabilities, given the co-existing non-service related disabilities impacting on his health; including his Alzheimer's disease, hypothyroidism, skin cancer, and venous insufficiency. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The only competent medical evidence in the record that adequately addresses the matter of a nexus between the Veteran's service-connected residuals of cold injury, pes planus, and below the knee shrapnel fragment wound and his death, reflects familiarity with the literature, is based on a review of the record and is expressed in unequivocal terms, consists of the August 2009 and August 2012 VA medical advisory opinions. The consulting provider noted that the acknowledged cause of the Veteran's death was pneumonia (which was not service-connected) and, in August 2009, opined that there was no pathophysiologic relationship between the development of the pneumonia and the service-connected disabilities. In the August 2012 addendum opinion, the consulting provider further explained that, as the Veteran's service-connected illnesses did not affect or deplete his immune system, it was unlikely that they contributed to his death. Because the medical opinions are by a provider who expressed familiarity with the record, because he explains the rationale for the opinion, and because the opinion is offered in unequivocal terms, the Board finds the opinion probative and persuasive regarding a nexus between the Veteran's death causing pneumonia and his service. The Board notes that there is also no competent evidence that links the Veteran's atherosclerotic (which has also been implicated as a cause of the Veteran's death) to his service. In support of her claim, the appellant has submitted information she obtained from internet research regarding the Veteran's illnesses at the time of his death and the symptoms claimed to be related to his service-connected disabilities (lower extremity pain, swelling, circulatory impairment, inability to exercise, and sequelae of cold injury). The Court has held that a medical article or treatise can provide support to a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case, as opposed to a discussion of generic relationships. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). Here, the internet research medical evidence submitted by the appellant is general in nature, does not specifically discuss the Veteran's pneumonia and his service-connected disabilities, and is not accompanied by a medical opinion by a medical professional which endorses the theories suggested in those articles as applying in the instant case. Therefore, the Board finds that the internet articles submitted have no significant probative value in the matter at hand. Finally, in support of her claim, the appellant has also submitted copies of decisions by the Court regarding the application of 38 U.S.C.A. § 1154(b), speculative medical opinions, and weighing the evidence. Notably, these Court decisions do not apply to the instant claim because they involve the concept of a "well grounded" claim, a concept eliminated by the enactment of the VCAA. Further, as explained above, the Board is charged with the duty to assess the credibility and weight given to evidence. And the VA medical advisory opinion, against the appellant's claim, reflects familiarity with the Veteran's complete medical history and is offered in unequivocal terms; it is the May 2009 private statement, that is offered in speculative terms (and must be given lesser probative value). Regarding the application of Section 1154(b), as the Veteran served in combat, the appellant is entitled to consideration of her claim under the relaxed evidentiary standards afforded under 38 U.S.C.A. § 1154(b). Pertinent caselaw provides, however, that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection, such as whether there is a current disability or whether there is a nexus to service, which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). As noted above, the critical questions in this matter (whether the death-causing disabilities were related to service and whether service-connected disabilities contributed to cause the Veteran's death) are medical in nature, and require medical evidence. The appellant's expression of her belief that the Veteran's death-causing pneumonia was related to his service-connected disabilities (rather than to other factors, including nonservice connected disabilities) is not competent evidence in the matter; she does not explain the rationale for the opinion, cite to supporting medical literature, or cite supporting factual data . In light of the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim. In such a situation, the benefit of the doubt doctrine does not apply, and the claim must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs