Citation Nr: 1306930 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-41 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to September 1945. He died in August 2008. The appellant is his widow. 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 Baltimore, Maryland. In November 2011, the Board reopened the claim and remanded the underlying merits claim to request additional medical records and to obtain a VA medical opinion. A letter was sent to the appellant in January 2012 requesting authorization to obtain private treatment records that were identified. Also, a VA medical opinion was obtained in February 2012 followed by a Veterans Health Administration (VHA) opinion in November 2012. Accordingly, the Board finds that there has been substantial compliance with the Board's November 2011 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As noted above, in November 2012, the Board obtained a medical expert opinion as set forth in VHA Directive 2010-044 dated September 29, 2010. The opinion was requested in October 2012. In December 2012, the appellant was provided a copy of the opinion and given 60 days to review the medical opinion and send any additional evidence or argument in support of his claims. The appellant responded in January 2013 informing VA that she had no further argument or evidence to submit and requested that the appeal proceed immediately to the Board for adjudication. Review of Virtual VA reveals no documents pertinent to this appeal. 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 August 2008, the immediate cause of death was atherosclerotic heart disease due to diabetes type II, prostate cancer and hypertension. Renal insufficiency, aortic sclerotic valvular stenosis and congestive heart failure were listed as other significant conditions contributing to death but not resulting in the underlying cause. An autopsy was not performed. 2. At the time of his death, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated 100 percent disabling, effective in May 2007. 3. The Veteran's service-connected PTSD was not the principal or contributory cause of death. 4. Neither atherosclerotic heart disease , diabetes type II, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis nor congestive heart failure were manifest in service nor, in specific regard to atherosclerotic heart disease, diabetes mellitus and hypertension, was any of these disorders compensably disabling within one year of discharge from active duty. 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. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a);38 C.F.R. § 3.159(b). In the context of a claim for dependency and indemnity compensation benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a dependency and indemnity compensation claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007). In a letter dated in February 2009, the RO satisfied the notice requirements of Hupp. The letter satisfies VA's duty to inform the claimant under the VCAA with respect to the claim for service connection for the cause of the Veteran's death. This duty included delineating the evidence VA would assist in obtaining and the evidence it was expected that the appellant would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's status as a veteran was substantiated during his lifetime. While the RO has not furnished to the appellant a letter meeting the Dingess requirements as to disability rating and effective date, no prejudice is shown to the appellant in this case. Disability ratings are not relevant to a claim for service connection for the cause of a veteran's death and because the Board is denying the appellant's claim, no effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the appellant under the notice requirements of Dingess. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA made reasonable attempts to obtain identified medical records pertinent to this claim. Unfortunately, VA was unable to obtain private treatment records from the Veteran's private treating physician, Dr. J. H. Wills. In this regard, the RO requested by letters dated in November 2011 and January 2012 that the appellant authorize VA to obtain Dr. Wills' records by completing VA Form 21-4142. Unfortunately, the appellant never submitted a completed form to VA. While VA has a statutory duty to assist a claimant in developing evidence pertinent to a claim, the claimant also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a claimant wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Thus, the Board finds that it made reasonable attempts to obtain this identified evidence. In addition, VA did obtain a medical opinion from a VA examiner in February 2012, and an expert medical opinion from a VHA physician in November 2012 addressing the relationship, if any, between the Veteran's service connected PTSD and the cause of his death. These opinions are adequate as the medical personnel who prepared them explained the reasons for their conclusions based on an accurate characterization of the evidence of record and supported their conclusions with an analysis that is adequate for the Board to consider and weigh against any contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection for the cause of the Veteran's death is thus ready to be considered on the merits. II. Facts By rating decision dated in September 1945, VA granted service connection for psychoneurosis (later recharacterized as PTSD) and assigned the Veteran a 50 percent rating. VA PTSD group therapy notes in 2005 and 2006 show that the Veteran was highly interactive and appropriate during sessions. On file is a VA Form 21-4142 (Authorization and Consent to Release Form), dated in April 2007, which appears to have been completed by the Veteran's physician, John Wills, M.D., who stated that the Veteran was fairly healthy with chronic illness worsening over the last two years. He said that the Veteran had been hospitalized in February 2007 for congestive heart failure symptoms, shortness of breath and fatigue, and was also found at that time to have significant sclerotic aortic valve which was probably the main factor attributed to his congestive heart failure symptoms by echogram. He relayed that the Veteran had refused surgical intervention during his hospitalization and was also found to have mild renal insufficiency, but had been prescribed renal blood pressure medication to prevent the disorder from worsening. In June 2007, a friend of the Veteran reported that the Veteran was a very nervous person who was unable to control himself. The friend stated that every time he spoke to the Veteran about the war the latter had war related flashbacks that were "persistently controlling him". He relayed the Veteran's report to him that his sleep was disturbed by hearing war planes and gunfire as well as nightmares of the war. At a June 2007 VA examination the Veteran was diagnosed as having PTSD due to severe stress from his war-related trauma. He was assigned a global assessment functioning score of 40. The examiner noted that the Veteran had been in involved in eight major battles while in service and displayed symptoms of anxiety and nervousness in service. He reported that after service the Veteran worked as a janitor for 16 years at a high school and drove a van for 13 years transporting patients for a psychiatric hospital. He reported that since then the Veteran had become increasingly nervous and anxious, was unable to do his work, and had become disabled. He noted that the Veteran had significant medical problems to include coronary artery disease, congestive cardiac failure, prostate cancer and urinary retention. He reported that the Veteran did not have any other mental illness other than PTSD. The Veteran's recorded complaints included daily agitation, anxiety and nervousness, sleep problems, irritability, and withdrawal symptoms. The examiner remarked that the Veteran's PTSD symptoms had recently worsened. In November 2007, the RO increased the Veteran's PTSD rating to 100 percent, effective in May 2007. In a statement dated in March 2008, the Veteran's spouse reported that combat stress caused her husband's high blood pressure, high cholesterol, diabetes, and enlarged heart and other problems. VA outpatient records in 2008 (January 2008 through May 2008) reflect the Veteran's continued participation in PTSD group therapy as well as the Care Coordination Home Telehealth Program. In June 2008, the Veteran underwent a VA examination to determine whether or not his diabetes mellitus, congestive heart failure, hypertension, arteriosclerotic heart disease and prostatic cancer were related to his service-connected PTSD. After examining the Veteran, reviewing his claims file and relaying his medical history to include the development of hypertension in the 1950s, diabetes in 1973 and congestive heart failure and prostatic cancer in February 2007, the examiner opined that even though stress of any type can be a factor in treating any significant systemic medical problem, it was less likely as not that the Veteran's type II diabetes mellitus, hypertension, congestive heart failure, prostatic cancer and elevated cholesterol, were the result of his service-connected PTSD. On file is the Veteran's death certificate showing that he died in August 2008. The immediate cause of death was atherosclerotic heart disease due to diabetes type II, prostate cancer and hypertension. Renal insufficiency, aortic sclerotic valvular stenosis and congestive heart failure are listed as other significant conditions contributing to death but not resulting in the underlying cause. An autopsy was not performed. In February 2009, the Veteran's private treatment physician, Dr. Wills, said he had been treating the Veteran from January 2007 until his death in August 2008. Dr. Wills stated that the Veteran suffered from PTSD as well as various other conditions such as diabetes, hypertension and cardiac valve disease. Dr. Wills said he soundly believed medically that these conditions were serious by themselves, but were more difficult to treat with an underlying psychiatric illness like PTSD. He relayed that there was medical literature in the field to support this fact. In February 2012, a medical opinion was obtained that addressed whether there was a nexus between the Veteran's service-connected PTSD and cause of death. After reviewing the Veteran's claims file, the examiner opined that it was less likely as not that the Veteran's diabetes mellitus, type 2, hypertension, congestive heart failure, prostate cancer and/or elevated cholesterol were the result of his service connected PTSD. The examiner remarked that the conditions were all physical conditions that are likely than not the result of genetics and advancing age. She explained that it was well known that declining age and mentation can cause people to become more agitated, confused and emotional. She added that there was no literature that concluded that an individual develops these conditions as a result of PTSD. She reported that 2007 VA examination findings that the Veteran's condition had gotten worse and the he was unable to function without the assistance of his wife, when put in the proper context, does not suggest that the Veteran's physical conditions were the result of his PTSD. She concluded by opining that it was less likely than not that there was any connection whatsoever between PTSD and the development of any of the decedent's physical medical conditions. She added that since none of the documented physical medical conditions were caused by PTSD. She opined that it was less likely than not that any of the physical medical conditions were in any way caused by PTSD. In August 2012, the appellant submitted a statement, along with a medical treatise article, in support of her claim for dependency and indemnity compensation benefits. She said that the article indicates that stress on the body causes various conditions to include hypertension, tumors and diabetes. The appellant reported that she was a certified nursing assistant and during her 41 years of marriage observed the affects that stress, caused by anxiety, had on the Veteran's physical condition. She enclosed an article written by Dr. Matthew Tull, PhD, entitled PTSD and Physical Health as well as her summary of the article. She said that the Veteran's private doctor, Dr. Wills, could not identify PTSD as the cause of death since treatment had been administered by the VA. She went on to contend that PTSD was the cause of the Veteran's death because anxiety causing stress to the body may be the root cause of all the diseases that the Veteran had, and died from what was listed on his Death Certificate. In written argument in September 2012, the appellant's representative cited from a medical textbook stating that psychosocial factors such as anger, anxiety, depression, hostility, type A behavior and various measure of social support had been associated with the occurrence of coronary vascular disease. Her representative requested that VA obtain an expert medical opinion on the matter. In November 2012, VA obtained a medical opinion from the Veterans Health Administration (VHA). After reviewing the Veteran' s military and medical history, the examiner concluded that it was not likely that the Veteran's PTSD caused him to develop atherosclerotic heart disease, diabetes mellitus, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis or congestive heart failure. He explained that although stress can contribute to an increase in hypertension, it was his opinion that the Veteran would have developed the problems even if he did not have PTSD. He noted that the Veteran had been treated for hypertension for many years and it was relatively controlled despite his PTSD. He said the fact that the Veteran was an African American male, was a bigger contributing factor in him developing atherosclerotic heart disease, diabetes, hypertension, prostate cancer and congestive heart failure. The examiner also opined that it was not likely that the Veteran's PTSD aggravated his atherosclerotic heart disease, diabetes mellitus, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis, or congestive heart failure beyond the natural progress of those diseases. He reiterated that the PTSD may have contributed to the Veteran's hypertension, but during a physical examination in June 2008, prior to his death, his blood pressure was 130/80. The examiner noted that the Veteran's blood pressure was controlled with medication despite his PTSD. The examiner added that the Veteran died at the age of 86 which was well above the average life expectancy for a black male. The examiner opined that the Veteran's PTSD did not seem to shorten his life from what was expected. The examiner pointed out that Dr. Wills, the Veteran's private physician, wrote a letter in February 2009 stating that he felt the Veteran's PTSD complicated the Veteran's other medical conditions, but that Dr. Wills also signed the Veteran's death certificate and did not note it was a contributing factor to his death when he filled out the death certificate. Lastly, the VHA examiner opined that it was not likely that the Veteran's atherosclerotic heart disease, diabetes mellitus, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis or congestive heart failure were caused by his active service. He said that after reviewing the records, it was obvious that the Veteran's PTSD was definitely caused by his active service, but his other medical conditions were not caused by his active service and would have occurred whether or not he suffered from PTSD. He concluded by stating that the facts of the case did not support the assumption that the Veteran's PTSD contributed in any way to his death. III. Law and Analysis Under 38 U.S.C.A. § 1310, when a veteran dies from a service related disability, VA will pay dependency and indemnity compensation to such veteran's surviving spouse. To establish that a veteran died from a service related disability, i.e., service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service was either a principal or contributory cause of death. 38 C.F.R. § 3.312. For a service-connected disability to be the principal cause of death, it must singularly or jointly with some other condition be the immediate or underlying cause of death, or be etiologically related thereto. 38 C.F.R. § 3.312(b). For a service-connected disability to be a contributory cause of death, it must be shown that it contributed substantially or materially, that it combined to cause death, or aided or lent assistance to the production of death. In this regard, it is not sufficient to show that the 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 in general will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For Veterans who served 90 days or more of during a war period, certain chronic disabilities, including cardiovascular-renal disease, to include hypertension, and diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). The Board is responsible for evaluating the evidence of record and assigning due probative weight. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). Upon weighing the evidence, if there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In the instant case, the Veteran's death certificate shows that the immediate cause of death was atherosclerotic heart disease due to diabetes type II, prostate cancer and hypertension. Renal insufficiency, aortic sclerotic valvular stenosis and congestive heart failure were listed as other significant conditions contributing to death but not resulting in the underlying cause. An autopsy was not performed. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder (PTSD) rated 100 percent disabling, effective in May 2007. As the facts above show, there is both favorable and unfavorable evidence in this case regarding a link between the Veteran's PTSD and the cause of his death. The favorable evidence includes a statement by the Veteran's private physician, Dr. Wills, who reported in February 2009 that the Veteran suffered with various conditions such as diabetes, hypertension and cardiovascular disease which he said were serious in themselves, but even more difficult to treat with an underlying psychiatric illness such as the Veteran's PTSD. There is also medical literature showing a link between psychiatric factors and physical health. In addition, there is a statement by the appellant, a certified nursing assistant, who reported observing during her 41 year marriage to the Veteran the affects that stress caused by anxiety had on his physical condition. The unfavorable evidence includes a VA examiner's opinion that while stress of any type can be a factor in treating any significant systemic medical problem, it was less likely as not that the Veteran's diabetes mellitus type II, hypertension, congestive heart failure, prostatic cancer and elevated cholesterol were the result of his service-connected PTSD. In regard to this opinion, the Board finds it to be of little probative weight because it was not supported by any rationale. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). With that said, there is the February 2012 VA opinion wherein the examiner opined that it was less likely as not that the Veteran's diabetes mellitus, type II, hypertension, congestive heart failure, prostatic cancer and cholesterol were the result of the Veteran's service-connected PTSD, to include by aggravation. This examiner reasoned that the physical conditions were more likely than not related to genetics and advancing age. She explained that it was well known that declining age and mentation can cause people to become more agitated, confused, and emotional and there was no medical literature that such conditions developed as a result of PTSD. She noted that there was no evidence in the file that suggested a "legitimate connection" between the Veteran's worsening health as a result of his PTSD. She concluded by stating that it was less likely that not that there was any connection whatsoever between PTSD and the development of any of the Veteran's physical medical conditions. There is also the November 2012 expert VHA opinion negating any link between the Veteran's PTSD or service and the cause of his death. Like the February 2012 VA examiner above, this examiner provided a rationale for his opinion that it was not likely that the Veteran's PTSD caused him to develop, or aggravated, his atherosclerotic heart disease, diabetes mellitus, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis or congestive heart failure. While acknowledging that the Veteran's PTSD may have contributed to his hypertension, this examiner noted that the Veteran's blood pressure had been controlled with medication despite his PTSD and was 130/80 in June 2008, which was just a few months prior to his death. He also noted that the Veteran died at the age of 86 which was well above the average life expectancy of a black male. The VHA examiner opined that PTSD did not seem to shorten the Veteran's life. The VHA examiner concluded, like the February 2012 VA examiner that the Veteran would have developed his physical conditions (i.e., atherosclerotic heart disease, diabetes mellitus, prostate cancer, hypertension, renal insufficiency, aortic sclerotic valvular stenosis, and congestive heart failure) even if he did not have PTSD. As the law provides, it is not sufficient to show that the 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). These medical opinions clearly negate a causal connection. In weighing the favorable and unfavorable evidence, the Board does not dispute the credibility and competence of the favorable evidence outlined above; however, the Board finds the unfavorable evidence to be of greater probative weight in this case. The appellant asserts that she has observed firsthand the effects that the Veteran's psychiatric symptoms had on his physical conditions for 41 years. However, she does not offer any detail or rational as to the likelihood that the Veteran's PTSD was either the principal or contributory cause of his death, other than to rely on medical treatise evidence. The medical treatise evidence, in turn, is generic in nature and does not speak to the likelihood that, under the specific facts of this case, the Veteran's PTSD can be related to the cause of his death. See, e.g., Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical treatise evidence that discusses relationships in generic terms is generally insufficient to meet the requirement of medical nexus); Wallin v. West, 11 Vet. App. 509, 514 (1998) (where treatise evidence discusses relationships with a "degree of certainty," such evidence meets the requirement of medical nexus). As to Dr. Wills statement in 2009 opining that the Veteran's PTSD made his serious medical conditions more difficult to treat, this statement falls short of relating the Veteran's PTSD to the cause of his death. This is especially so when considering the VHA examiner's remarks in November 2012 in this regard. That is, in commenting on Dr. Wills statement that the Veteran's PTSD made it more difficult to treat his serious physical conditions, the VHA examiner pointed out that Dr. Wills did not include PTSD on the Veteran's Death Certificate even though he was the one who signed and completed it. While the appellant argued in August 2012 that Dr. Wills could not have identified the Veteran's PTSD as the cause of death since (psychiatric) treatment was rendered by VA, as the Veteran's medical doctor, Dr. Wills would have been in a good position to observe the impact, if any, that the Veteran's psychiatric symptoms had on his medical conditions. In short, the Board finds that the well reasoned, fact specific opinions of the February 2012 VA examiner and November 2012 VHA examiner to be of greater probative weight. Finally, there is no evidence or argument that the immediate or contributory cause of death was itself related to service. In determining whether the disability that resulted in the death of the Veteran was the result of active service, the standards and criteria applicable to service connection claims generally are to be applied. See 38 U.S.C.A. § 1310(a). There are no notations regarding the causes of the Veteran's death as listed on his death certificate, i.e., atherosclerotic heart disease due to diabetes type II, prostate cancer and hypertension, renal insufficiency, aortic sclerotic valvular stenosis and congestive heart, in the service treatment records. Rather, as shown, postservice medical records show that these disabilities were discovered years after service. More specifically, medical records indicate that the Veteran developed hypertension in the 1950s, diabetes in 1973 and congestive heart failure and prostate cancer in February 2007. There is simply no evidence showing that these disabilities manifested in service. There is no evidence that atherosclerotic heart disease, diabetes mellitus and/or hypertension were compensably disabling within the one year presumptive period. 38 C.F.R. §§ 3.307, 3.309. Indeed, the only medical evidence addressing this point on a direct basis, to include by aggravation, militates against the claim. See November 2012 VHA opinion. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b).. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs