Citation Nr: 1307108 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 08-26 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 C.F.R. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, son, and daughter ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from April1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied the above claims. In November 2009, the appellant testified at a hearing before a Veterans Law Judge (VLJ). Subsequently, the Board requested a Veterans' Health Administration (VHA) expert opinion. See 38 U.S.C.A. § 7109(a); Padgett v. Nicholson, 19 Vet. App. 133, 145 (2005). This opinion was received in May 2011. In December 2011, the Board remanded the appeal to allow for consideration of evidence newly submitted by the appellant to the Agency of Original Jurisdiction (AOJ) in December 2011. When the case was returned from remand, the VLJ who conducted the November 2009 hearing was no longer employed by the Board. In October 2012, the Board sent a letter to the appellant advising her that she could testify at another Board hearing before the VLJ who would decide her appeal. In November 2012, she requested this hearing. Accordingly, in January 2013, she testified at a video-conference hearing before the undersigned VLJ. 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. At the time of the Veteran's death, service connection was in effect for grand mal epilepsy, rated at 60 percent disabling, and Dilantin hyperplasia of the gingiva, rated as noncompensable. 2. The Certificate of Death shows that the Veteran died in February 2008; complications resulting from a right hip fracture is listed as the immediate cause of death, and dementia, arteriosclerotic cardiovascular disease, hypertension, and a seizure disorder are listed as contributing causes of death, 3. The Veteran's service-connected seizure disorder, including both grand mal and petit mal seizures, contributed substantially and materially to his death. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this decision, the Board grants service connection for the cause of the Veteran's death. This award represents a complete grant of the benefit sought on appeal and renders the claim for entitlement to DIC under 38 U.S.C.A. § 1318 moot. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The appellant claims that the Veteran, service-connected at the time of his death for epilepsy, had a seizure while hospitalized at the VA Medical Center in Wichita, Kansas, in February 2008 that caused him to fall, breaking his hip. As noted on the death certificate, the Veteran died later that month from complications of a right hip fracture. Dementia, arteriosclerotic cardiovascular disease, hypertension, and a seizure disorder are listed on the death certificate as other significant conditions contributing to death but not resulting in the underlying cause of death. When a Veteran dies from a service-connected disability, his surviving spouse, children and/or parents are entitled to dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service, e.g., a disability service-connected at the time of death, was either a principal or contributory cause of death. See 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal, or 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). For a service-connected disability to constitute a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See id. It is not enough to show that the service-connected disability merely shared in the production of death; a causal connection must be shown. Id. In determining whether a claim for benefits is warranted, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Here, as noted above, the Veteran's seizure disorder is listed as a contributory cause of his death on the death certificate, "not resulting in the underlying cause" of complications of a right hip fracture. Therefore, the relevant determination is whether the seizure disorder contributed substantially and materially to the Veteran's death, i.e. whether there is a true causal connection between the service-connected seizure disorder and the Veteran's death as a result of complications of a right hip fracture. In May 2011, the Board obtained an expert medical opinion from a neurologist on this question. The neurologist determined that it was less likely than not that the Veteran's service-connected seizure disorder resulted in the fall that caused his right hip fracture as there was, in the opinion of the neurologist, no evidence to support the occurrence of a seizure at the time of the fall other than statements of the Veteran's family. Furthermore, the neurologist explained, the medical evidence provided by the medical professionals monitoring the Veteran during his hospitalization showed a lack of any activity or behavior indicating a seizure. The neurologist also noted that the Veteran's family regularly mistakenly attributed his falls to seizures where no such attribution was supported by the medical record. Specifically, the neurologist noted that the description of the Veteran immediately after his fall strongly countered any argument that the Veteran suffered a grand mal seizure because patients are disoriented, confused, and somnolent after a generalized convulsive seizure, whereas the Veteran was described as conscious, alert, and oriented. Further, the neurologist noted that a VA neurologist had determined in October 2006 that the Veteran's episodes of falling from a standing position were separate from his seizure disorder and more likely due to cardiac arrhythmia or orthostatic hypertension. The neurologist agreed with this opinion on the basis that the Veteran's seizures were relatively well controlled, no seizure activity was reported in multiple medical settings, and the separate issue of frequent unexplained falls did not begin until sometime around 2005. VA treatment records from the time of the fall in February 2008 show that the Veteran denied loss of consciousness before or after the fall, did not have abnormal movement or loss of urine, and dated his last convulsive seizure to more than 10 years prior. On the basis of that history, the VA physician on staff concluded that his fall was not related to his seizure disorder. The Veteran's treating neurologist at VA initially primarily suspected a partial seizure disorder with secondary tonic-clonic seizures in October 2006, and felt the evidence weighed against orthostatic hypotension or valvular heart disease. He also noted a history of atrial fibrillation. In January 2007, the neurologist noted that the "events that occurred while standing seemed different from the other events" and considered the possibly of orthostatic hypotension." However, the neurologist also found that the events might also represent a "partial seizure with secondary tonic-clonic seizures." In February 2007, the VA neurologist noted that the Veteran reported a recent instance where he apparently passed out only to find himself lying on the floor when he regained consciousness a short time later. The notes show that the Veteran had a history of grand mal seizures dating back to 1945 and daily "petit mal" and other episodes characterized by a loss of consciousness while standing or going from a sitting to standing position. The neurologist ultimately could not determine the cause of these episodes, although orthostatic hypotension was again suspected. Conversely, the Veteran's primary physician, Dr. W., has consistently attributed his falling episodes to "drop attacks," or syncope secondary to his seizures. Furthermore, critically, medical records, namely VA examinations, dated back to June 1948 repeatedly show a documented history of petit mal seizures. These were described as "momentary lapses of consciousness" that had occurred periodically ever since the Veteran began having grand mal seizures in service. In August 1948, they were described as "fainting spells." In July 1951, the Veteran reported injuries sustained as a result of falling due to seizures. In May 1954, the Veteran was suffering from grand mal seizures, but also reported experiencing frequent petit mal seizures while at work. He explained that they only lasted for a few seconds, allowing him to effectively pause during the operation of welding equipment on the job until it passes. The examining physician described these petit mal seizures as "passing," and he diagnosed the Veteran with "convulsive disorder, grand mal and petit mal seizures type." The June 1956 VA examiner also noted that the Veteran suffered from petit mal seizures in addition to grand mal seizures, which the Veteran described as "passing seizures" or "momentary seizures." The examining psychiatrist thought it was likely that the Veteran incurred the convulsive disorder as a result of cerebral inoxia caused by flying at high altitudes. As recently as December 1992, the VA examiner diagnosed the Veteran with a "mixed type seizure." However, throughout the record, in spite of the amount of evidence of petit mal seizures documented by VA examiners, the RO has continued to characterize his service-connected disability as grand mal epilepsy only. After the December 1992 diagnosis, the Veteran's petit mal seizures appear to have gone undocumented by any VA physician until around 2005. However, as noted above, they were still documented by his private treating physician prior to that time and noted to be the cause of his issues with frequent and unexpected falls, often resulting in traumatic injury. In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient and accurate facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. See Nieves-Rodriguez, 22 Vet. App. at 302, citing Fed. R. Evid. 702; see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (explaining that the Board will look at the foundation upon which the opinion is based). Under this guideline, the expert medical opinion obtained in May 2011 is inadequate for purposes of review as relies on analysis facts that are demonstrably inaccurate, including a mischaracterization of the findings of the Veteran's treating VA neurologist in 2006 and 2007, who never, contrary to the May 2011 opinion, conclusively ruled out seizures as the cause of the Veteran's falls in the notes present in the record, and a failure to consider, discuss, and account for the relevant medical evidence in claims folder documenting a history a petit mal seizures dating back to service. See Nieves-Rodriguez, 22 Vet. App. at 302. Furthermore, the specialist's finding that the Veteran did not experience instances of falling from a standing position until 2005 is also clearly contradicted by the medical evidence documenting falls and injuries from falls prior to that time. Lastly, the specialist's analysis of the medical evidence contemporaneous to the fall that led to the Veteran's death relies on the lack of any symptoms of grand mal seizures only; no symptoms of petit mal seizures. See id.; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Consequently, this opinion is a result of applying an incorrect medical principal to a regrettably limited set of facts. See id. Review of the Veteran's record shows that he has been diagnosed with seizures that, far from rendering him disoriented, confused, and somnolent, allowed him to return to work as a welder after a short break lasting a matter of minutes. In weighing the evidence, the Board finds that the January 2013 opinion is inadequate and thereby has no probative value. See Parrish v. Shinseki, 24 Vet. App. 391 (2011). The findings of the Veteran's VA neurologist in 2006 and 2007 were inconclusive. See Fagan v. Shinseki, 573 F.3d 1282, 1289-90 (Fed. Cir. 2009) (explaining that where the medical professional cannot provide an opinion without resort to speculation, the statement provides neither positive nor negative support for service connection). Furthermore, the Veteran's treating VA neurologist did not appear to be aware of the Veteran's long-standing history of petit mal seizures at the time of that evaluation, documented from the dates of October 2006 to February 2007 in the evidence of record. However, the record contains a considerable amount of medical evidence diagnosing the Veteran with petit mal seizures, describing those seizures, and attributing the Veteran's falls to his seizures, as reviewed in detail above, including evidence from multiple previous VA examiners and the Veteran's primary treating physician, who, in October 2004, stated that he had been following the Veteran's seizures for several years. Consequently, as a physician who regularly treated the Veteran for a period ultimately lasting over a decade, he is presumed to have more detailed knowledge of the relevant medical history than the medical specialist who submitted the May 2011 opinion or the VA neurologist who seems to have treated the Veteran for less than a year, and without knowledge of his previously diagnosed petit mal seizures. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2008). As there is no evidence indicating that the medical staff at the VA hospital in February 2008 were aware of the Veteran's history of petit mal seizures, or were capable of identifying these seizures by the observable signs, the contemporaneous evidence does not weigh against the appellant's claim either as the medical evaluations provided were premised on observation and evaluation of symptoms of grand mal seizures only. See Nieves-Rodriguez, 22 Vet. App. at 302; Stefl, 21 Vet. App. at 123. Therefore, there is no medical evidence of record contemporaneous to the time of the fall that resulted in the Veteran's death that is probative on the specific issue of the cause of that particular fall. However, the appellant's family members, as they have repeatedly asserted in their testimony and statements of record, regularly observed the Veteran's petit mal seizures over a period spanning decades. While they are not competent to diagnose those occurrences as petit mal seizures on their own, the Board finds that they are competent to recognize the unique and identifiable features that they have come to associate with the characteristics the Veteran exhibited in the past during events that were subsequently diagnosed by competent medical professionals as petit mal seizures. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay evidence may be competent on diagnosis where the disorder is characterized by unique and readily identifiable features); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (explaining that lay evidence is competent when provided by a person who has personal knowledge, actually observed, derived from the senses of facts or circumstances and conveys matters that can be observed and described by a lay person). Further, while the appellant has submitted contradictory statements and is, therefore, not credible on the issue of whether the Veteran suffered from a seizure in February 2008, her son and daughter have provided testimony describing the features they recognized as related to the Veteran's past seizures and have not given the Board any reason to question their credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that the Board may look at the consistency of the evidence in weighing credibility). Lastly, the Veteran's death certificate lists his seizure disorder as a contributing cause of death. As the death certificate lists the service-connected seizure disorder as a contributing cause of death, service connection for the cause of the Veteran's death will be awarded if the seizure disorder had a causal connection, or contributed substantially and materially, to the Veteran's death. Here, the weight of the medical evidence shows that the Veteran suffered from falling spells, and the competent lay evidence brings the record into equipoise on whether a seizure was the cause of the fall in February 2008. Consequently, resolving any doubt in favor of the appellant, the evidence shows that the Veteran's fall occurred as a result of his seizure disorder. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. As the medical evidence clearly shows that the fall resulted in the hip fracture, and complications from the hip fracture are listed as the underlying cause of death, the Veteran's seizure disorder contributed materially and substantially to his death as it is a necessary link in the causal chain of the events leading to his death. Therefore, service connection for the cause of the Veteran's death is warranted. See 38 C.F.R. § 3.312(c). With the Board's grant of DIC under the provisions of 38 U.S.C.A. § 1310 for service connection for the cause of death, the appellant's alternative claim of entitlement to DIC under 38 U.S.C.A. § 1318 (based on compensation at the time of death for a service-connected disability rated totally disabling) is rendered moot. Accordingly, the appeal as to the claim of entitlement to DIC under 38 U.S.C.A. § 1318 is dismissed as no benefit remains to be awarded and no controversy remains. ORDER Service connection for the cause of the Veteran's death is granted. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 C.F.R. § 1318 is dismissed. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs