Citation Nr: 1307101	
Decision Date: 03/01/13    Archive Date: 03/11/13

DOCKET NO.  06-28 948	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


ATTORNEY FOR THE BOARD

M. Tenner, Counsel



INTRODUCTION

The Veteran served on active duty from January 1967 to January 1970.  He served in Vietnam and is the recipient of the Purple Heart medal, among others.  He died in October 2004.  The appellant is the Veteran's surviving spouse. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 decision rendered by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA).  In her August 2006 substantive appeal, the appellant requested a Board hearing.  Before the scheduled hearing, the appellant withdrew her request in April 2008.  38 C.F.R. § 20.702.  

In September 2010, the Board remanded the claim for additional development.  In sum, the Board found that the appellant had not received proper VA notice as to how to substantiate her claim for benefits.  In addition, the Board found that a November 2006 VA medical opinion was inadequate.  Proper notice was issued in September 2010.  Another VA medical opinion was obtained in December 2010.  

In September 2011, the Board issued a decision denying the claim.  The appellant appealed that decision to the United States Court of Appeals for Veterans Claims ("Court").  In July 2012, the parties to the appeal filed a Joint Motion for Remand.  The parties noted that the December 2010 medical opinion relied upon by the Board was inadequate because the examiner failed to acknowledge that the Veteran had a shrapnel wound in the left leg and instead assumed that the combat injury was only to the right leg and low back.  In July 2012, the Court granted the motion and vacated the Board's decision and remanded the matter to the Board.  

In January 2013, the appellant's attorney submitted a private medical opinion directly to the Board.  The evidence was accompanied by a waiver of initial Agency of Original Jurisdiction review.  See 38 C.F.R. § 20.1304 (2012).  

Finally, the issue of entitlement to special monthly pension based on the need for aid and attendance, or by reason of being housebound, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 


FINDINGS OF FACT

1. The Veteran died in October 2004.  The death certificate, in Part I, lists the immediate cause of death as pulmonary embolism; in Part II, "other significant conditions contributing to death but not resulting in the underlying cause given in Part I," lists "left leg cutaneous infection."

2. During the Veteran's lifetime, service connection was in effect for posttraumatic stress disorder; headaches, residual of head injury; scar, right thigh, residual of rocket wound; scars, multiple back, residuals of shell fragment wounds; residuals, injury to face; acneform diseases; and moderate restrictive lung disease.  

3.  The Veteran likely had diabetes at the time of his death that is presumptively associated with exposure to herbicide agents when in Vietnam.  Diabetes contributed to or hastened the onset of macrovascular disease and deep venous thrombosis which contributed to the cause of the Veteran's death.  


CONCLUSION OF LAW

Affording the appellant the benefit of the doubt, the criteria for service connection for the cause of the Veteran's death have been met.  38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.1(k), 3.5(a), 3.303, 3.312 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error.  

Nevertheless, the Board takes this opportunity to note that VA made reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); Wood v. Peake, 520 F.3d. 1345, 1348 (Fed. Cir. 2008).  VA obtained the private and VA medical records generated just prior to the Veteran's death.  In addition, a medical opinion was obtained in connection with the claim.  See DeLaRosa v. Peake, 515 F. 3d 1319 (Fed. Cir. 2008)(discussing VA's duties to obtain a medical opinion in DIC cases.)  

II.  Background and Analysis

To establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death.  See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312.  For a service-connected disability to be the principal (primary) cause of death it must singly or with some other condition be the immediate or underlying cause or be etiologically related.  Id.  For a service-connected disability to constitute a contributory cause it must contribute substantially or materially; 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.  38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994).  

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f).  

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) (2012) 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) (2012) are also satisfied:  AL Amyloidosis; Chloracne or other acneform disease consistent with chloracne; Type 2 Diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  The terms soft tissue sarcoma includes malignant schwannoma.  38 C.F.R. § 3.309(e) (2012)(emphasis added).  

The Veteran served in combat in Vietnam.  His service treatment reports do not show any treatment for a pulmonary embolism.  They do reveal that he was injured by rocket fire in March 1968, resulting in fragment wounds to both lower extremities and his back.  Between March and April of 1968, he was hospitalized for about seven days for treatment involving delayed primary closure of the right thigh and back wounds.  He was returned to duty with a 21-day profile.  

In December 1969, he was involved in a motor vehicle accident.  The impression was whiplash injury with occipital neuralgia in addition to a scalp laceration.  The Veteran's separation examination report, dated in December 1969, shows that his heart, lungs, chest, and lower extremities, were clinically evaluated as normal; the report notes a history of whiplash injury with occipital neuralgia, a contusion and laceration of the head, and a scar at the right posterior lumbar area and upper area, posterior aspect, right thigh.  

The post-service medical evidence consists of VA and non-VA reports.  

This evidence includes private treatment reports, dated in October 1991, which show that the Veteran was treated for complaint of a two-week history of left lower extremity pain, and that he was admitted with pleuritic chest pain.  The impressions noted deep vein thrombosis, left lower extremity, and acute pulmonary embolism secondary to venous insufficiency and varicosities of the left lower extremity with probably acute thrombophlebitis. 

Reports from Monongalia General Hospital (MGH), dated between November and December of 1991, show treatment for diagnoses that included acute pulmonary embolism and pulmonary infarction with hemoptysis, deep venous thrombosis of the left lower extremity, massive obesity, hypoxia secondary to pulmonary embolism and obesity, and transient hypertension.  

Private treatment reports from A.H., M.D., dated between 1991 and 1994 show that the Veteran received a number of treatments for chronic venous insufficiency, with use of Coumadin.  A November 1994 report states, "The patient weighs over 300 lbs.  Again, if he doesn't start losing some weight the long term outlook for this is very poor."

A March 1992 private treatment report shows treatment for an open left leg ulcer.  The report notes that he was markedly obese and had a history of deep venous thrombosis (DVT) and a pulmonary embolus.  The impressions were venous stasis ulcer, and "venous insufficiency, probably due to his recent DVT and his marked obesity." 

Between June and July of 1994, private treatment reports show treatment for diagnoses of cellulitis, left leg, and stasis dermatitis, left leg.  He was started on Coumadin, and advised "to lose weight as much as possible."  

A VA hospital report, covering treatment provided between January and February of 1997, shows treatment for PTSD, alcohol dependency in remission, with Axis II diagnoses that included hypertension.  

A VA spine examination report, dated in March 1997, shows that the Veteran was noted to be six feet tall, and to weigh 385 pounds.  On examination, he had a healed, nontender, four-inch scar at the right lumbosacral spine.  An X-ray of the right thigh was negative.  X -rays of the lumbar spine showed some spurring at L4-L5.  The examiner stated, "I do not see any problems with the scars.  They are healed alright [sic] and I do not see any defect.  His main problem is obesity and blood clots in his left leg.  At the present time the blood clots are the most serious things.  They have to be cleared up and later on he needs to find some way to get his weigh down.  Even if he goes down 100 pounds it would be great."  

A VA general medical examination report, dated in March 1997, contains diagnoses that included moderate restrictive lung disease with shortness of breath, acneform disease, hypertension, hyperglycemia, and deep venous thrombosis, left. 

A VA brain examination report, dated in March 1997, contains impressions of cephalgia, and obesity. 

Several VA hospital reports, covering treatment provided between 1998 and 2002, shows hospitalization for chronic DVT of the left lower leg with superimposed cellulitis, left lower extremity cellulitis, venous stasis, lymphedema, chronic stasis ulcer, and osteomyelitis.  He was also treated for diabetes, depression and PTSD.

VA progress notes show ongoing treatment for the aforementioned left leg disorders between 2000 and 2004. 

The Veteran died in October 2004.  The death certificate, in Part I, lists the immediate cause of death as pulmonary embolism; in Part II, "other significant conditions contributing to death but not resulting in the underlying cause given in Part I," lists "left leg cutaneous infection."  The certificate indicates that the Veteran died at his residence. 

During the Veteran's lifetime, service connection was in effect for posttraumatic stress disorder (PTSD); headaches, residual of head injury; scar, right thigh, residual of rocket wound; scars, multiple back, residuals of shell fragment wounds, residuals, injury to face; acneform diseases; and moderate restrictive lung disease.  His combined disability rating for compensation purposes was 70 percent.  

In an opinion dated in December 2010, a VA physician reviewed the Veteran's claims file and summarized his medical history.  The physician stated that none of the Veteran's examination reports revealed any disease or complication of his injured right thigh, and that his left leg DVT began 23 years after his right thigh injury.  He noted that the Veteran was markedly obese and had limited mobility, which were risk factors for DVT and PE (pulmonary embolism).  He further stated, "I would expect DVT on the right side if it was from the injury and much earlier than it happened, usually within [a] few weeks of the injury.  After considering all the facts, the left leg DVT and PE are less likely as not caused by or as a result of the service connected right thigh injury."  

In an opinion dated in December 2012, a private physician, Dr. P. C., reviewed the Veteran's medical and service records.  He noted that the Veteran sustained injuries to both lower extremities while in service and that he was first diagnosed with DVT and a pulmonary embolism in 1991.  Dr. P. C. also noted that a March 1997 hospital record documented fasting blood sugars of 143 mg/dl.  Such reading, Dr. P. C., noted, was consistent with a diagnosis of diabetes.  Dr. P. C. described studies that showed a relationship between diabetes and the subsequent onset of blood clotting issues and venous thromboembolism.  The examiner stated that it was at least as likely as not that diabetes contributed to or hastened the onset of the Veteran's macrovascular disease and DVT.  He also found it was at least as likely as not that diabetes was a significant factor in his death.  

The Board has reviewed this and other relevant evidence of record, and, after affording the appellant the benefit of the doubt, finds that the criteria for service connection for the cause of the Veteran's death have been met.  First, the weight of the evidence does not show a relationship between service-connected shrapnel wounds and the cause of the Veteran's death.  Rather, even though the Veteran received injuries to both lower extremities; it does not appear that these combat injuries were etiologically related to DVT or the pulmonary embolism that caused his death.  As to diabetes, however, while diabetes mellitus was not diagnosed during the Veteran's lifetime, Dr. P. C. has provided compelling argument that he had diabetes due to his presumed exposure to herbicide agents in service.  He has also compellingly argued that diabetes led to his DVT, thromboembolism, and, as such, contributed to his death.  The opinion was based on a review of the Veteran's history and contains a well-reasoned analysis that is consistent with the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

There is no medical opinion evidence to the contrary.  

Given such, the Board finds that the criteria for service connection for the cause of the Veteran's death have been met.  


ORDER

Service connection for the cause of the Veteran's death is granted.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs