Citation Nr: 1307291 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 07-03 759 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to March 1969. He died in July 2005. The appellant is his surviving spouse. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the RO. In March 2007, the appellant presented testimony before a Decision Review Officer (DRO) at a hearing held at the RO. A transcript of the hearing is of record. In January 2008, the Board remanded the matter to the RO (via the Appeals Management Center (AMC), in Washington, DC) for additional development of the record and readjudication. The Board also remanded the claim in August 2011. In November 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The opinion, dated in December 2012, has been received at the Board, and the appellant and her representative have been provided a copy of this opinion. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. The Veteran's death certificate lists his immediate cause of death as right middle cerebral aneurysm cerebrovascular accident. 2. At the time of the Veteran's death in July 2005, service connection was not in effect for any disability. 3. The Veteran's cerebral artery stroke was first manifested many years following separation from service, and the persuasive medical evidence and opinion preponderates against finding that there existed a medical relationship, or nexus, between the Veteran's cerebral artery stroke and any event or incident of his service. 4. The Veteran is not shown to have suffered from ischemic heart disease. 5. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially in producing the Veteran's death. 38 U.S.C.A.§§ 105, 1110, 1112, 1113, 1131, 1310 (West 2002 & Supp. 2012); 38 C.F.R.§§ 3.303, 3.304, 3.307, 3.309, 3.312, 3.313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for dependency and indemnity compensation (DIC) benefits, VA's notice requirements 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 DIC claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The RO provided VCAA notice letters to the appellant in December 2005 and April 2010. The letters notified the appellant of what information and evidence must be submitted to substantiate a claim for service connection for the cause of the Veteran's death, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The appellant was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of her claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The April 2010 letter also notified the appellant of what disabilities the Veteran was service connected at the time of his death, in accordance with Hupp. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant was provided with notice of the type of evidence necessary to establish effective dates in the April 2010 letter. The claim was readjudicated in the June 2012 Supplemental Statements of the Case, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). While the appellant was not provided notice of the type of evidence necessary to establish a disability rating, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As the Board herein denies the claim for service connection for the cause of the Veteran's death, the failure to provide notice with respect to this element of the claim is no more than harmless error. The Board finds that all relevant evidence has been obtained with regard to the appellant's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. All identified and available VA, private, and employment treatment records have also been obtained. In January 2012, the appellant indicated that she had no additional information or evidence to submit in support of her claim. In September 2011, the Veteran's claims file was reviewed by a VA physician for opinion as to the cause of the Veteran's death. In December 2012, an advisory medical opinion from the VHA as to the cause of the Veteran's death was also obtained. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Cause of Death Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly 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 one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The following diseases are associated with herbicide exposure for purposes of the presumption: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease [including but not limited to acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease, (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal's angina], all chronic B-cell leukemias (including but not limited to hairy cell leukemia and chronic lymphocytic leukemia), 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 certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Analysis As reflected on his death certificate, the Veteran died in July 2005 due to right middle cerebral aneurysm cerebrovascular accident. No other contributing cause is listed. At the time of the Veteran's death, service connection was not in effect for any disability. The appellant contends that the Veteran's death was due to disability of service origin. She asserts that the Veteran had posttraumatic stress disorder (PTSD) or other acquired psychiatric disorder due to his service in the Republic of Vietnam that caused or aggravated his hypertension, which led to his eventual death due to a stroke. In the alternative, she contends that his heart disease was secondary to the presumed herbicide exposure during his service in the Republic of Vietnam. After a full review of the record, including the medical evidence, as well as statements by the appellant and those made on her behalf, the Board finds that, notwithstanding the appellant's assertions, service connection for the cause of the Veteran's death must be denied. The Veteran's service treatment records are completely negative for any complaint or finding referable to the right middle cerebral aneurysm cerebrovascular accident, to include heart disease or hypertension. These records do not reflect findings of hypertension. On July 1969 discharge examination, blood pressure was 126/82. Separation examination was normal. Following the Veteran's discharge from service, an employment physical dated in April 1997 reflects that the Veteran denied having a history of hypertension. Blood pressure was 130/78. A summary report from the Kelsey-Sebold Clinic indicates that the Veteran underwent a check-up in April 1997 along with an electrocardiogram. However, no results or pertinent medical findings from this facility are available, and the facility indicated that such records had been destroyed. A Vet Center information report reflects that the Veteran was diagnosed with PTSD and major depression in February 2004. The Veteran related his psychiatric difficulties to stressful incidents he encountered during his service in Vietnam. The appellant also submitted a February 2004 VA counseling services report indicating that the Veteran was to attend individual readjustment counseling and group readjustment counseling sessions. On VA treatment in March 2004, it was noted that his blood pressure was acceptable. It was noted that he had a questionable diagnosis of PTSD with some depressed mood and was on local psychiatry follow-up. Otherwise, the Veteran had no specific complaints. Blood pressure was 142/66. A diagnosis of blood pressure with acceptable control, as well as a questionable diagnosis of PTSD, was indicated. An April 2005 VA outpatient treatment report reflects that the Veteran reported being treated for hypertension in the past. He took blood pressure medication, then changed his diet, and his blood pressure went down. As a result, he stopped taking medication. The Veteran reported that he stopped taking hypertension medication in approximately 2001. He had no history of coronary artery disease, cerebrovascular accident, or peripheral vascular disease. The July 2005 treatment records from the Moses Cone Health System reflect that the Veteran was found in a local motel room by staff after he failed to check out on time. EMS was contacted, and he was found to have atrial fibrillation. Upon arrival at the emergency room, the Veteran was drowsy, stuporous, and communicating poorly. A CT scan was performed and the Veteran was found to have a major acute ischemic hemispheric stroke in the distribution of the right middle cerebral artery with proximal occlusion of that vessel and almost total infarction of the right temporal lobe. The Veteran's risk factors for stroke were noted to be obesity, hypertension, atrial fibrillation and smoking. Three days after admission, a CT scan of the head again showed a large right middle cerebral artery infarct. There was increasing edema and increasing right-to-left midline shift. Also noted was a mild prominence of the left lateral ventricle, particularly the temporal horn, increasing since the prior study. In consultation with neurology, the Veteran's poor prognosis and deterioration was conveyed to the family. The family decided that the Veteran wishes were best fulfilled by withdrawal of life support, and the Veteran died shortly thereafter. Discharge diagnoses included those of cerebral edema with intra-cranial hypertension, acute ischemic hemispheric stroke with occlusion of the right middle cerebral artery, atrial fibrillation, paroxysmal, and hypertension. The appellant submitted a medical treatise article title "Hypertension and the War Veteran." The author concluded that psychosocial stress played an important causative role in the development of hypertension. He noted that, for many war veterans, their wartime experience proved to be the greatest source of ongoing psychosocial stress throughout their lifetime. Therefore, he found it reasonable to conclude that wartime experience often played a causative role in the development of hypertension. He also determined that those veterans suffering from PTSD were at increased risk for developing hypertension. A second article entitled "Relationship of PTSD or Stress to Cardiovascular Disorders" discusses the Veterans Health Administration's (VHA) conclusion that a causative relationship between PTSD or other long-term stress and subsequently developing cardiovascular disease has not been established. The VHA noted that while there was preliminary clinical evidence of a relationship, there was no hard scientific hard evidence to support the clinical data. Therefore, they found that further scientific research was needed to resolve the issue. During the appellant's March 2007 DRO hearing, it was noted that the Veteran served in Vietnam and was exposed to herbicides. She noted that she met the Veteran in 1989. She did not know precisely when he was diagnosed with hypertension, but indicated that he received the diagnosis when he had to take physicals for his employment as a truck driver. If diagnosed with hypertension, he would take the medication until stabilized at the time of the second physical. She expressed her belief that the Veteran had been suffering from high blood pressure for a long time, though he did not discuss any of his medical problems with her or others. She also expressed that the Veteran experienced a number of psychiatric difficulties due to his experiences in Vietnam, though he did not seek help for them for many years. The appellant noted that she thought the Veteran's PTSD contributed to his hypertension and subsequent death. She indicated that he had filled out an application for VA disability benefits, but did not complete or submit the application. The appellant submitted a copy of an undated VA form 21-526 claim for compensation partially completed by the Veteran prior to his death. The Veteran did not list any disabilities for which he would be seeking service connection, though the appellant contends that the form reflected his desire to file a claim of service connection for PTSD prior to his death. In September 2011, the Veteran's claims file was reviewed by a VA physician for an opinion on the cause of the Veteran's death. The examiner noted that he reviewed all the evidence of record, to include the Veteran's service and post-service treatment records and the medical treatise articles. Based on his review and clinical expertise, the physician determined that it was less likely as not that the Veteran was diagnosed with or treated for hypertension in service. He pointed out that the Veteran was not noted to have elevated blood pressure during service. However, he did find that the record did support a post-service diagnosis of hypertension with at least 2 elevated blood pressure readings without evidence of hypertensive cardiomyopathy. The examiner also noted that the Veteran had a post-service diagnosis of PTSD. As to whether there was an association between the Veteran's hypertension and service, his independent review of records yielded some published reports of association between mental stress and elevated blood pressure readings. However, he found it was not clearly established that mental stress led to chronic elevated blood pressure. The physician continued that, in the Veteran's case, it appeared that he had at least episodes of normal blood pressure, but not chronically elevated blood pressure. Thus, during acute mental stress, his blood pressure could have elevated. However, he noted that it was not clearly established that mental stress led to chronic hypertension. It was also not clear without getting into the realm of speculation how much elevation in blood pressure acute mental stress could cause, based on review of medical literature. The examiner determined that the Veteran's cause of death was likely the right middle cerebral artery stroke, which was more likely than not from cardioembolic phenomenon. The chest CT scan in July 2005 showed calcified coronary arteries, and the Veteran did have paroxysmal atrial fibrillation, both of which could cause cardioembolic events. The hospital notes also stated the same opinion. The examiner also pointed out that uncontrolled hypertension led to hemorrhagic stroke that was separate from ischemic cardioembolic stroke. In a December 2012 VHA report, the VA cardiologist opined that it was unlikely that the Veteran was suffering from ischemic heart disease that caused or contributed materially or substantially in producing his death. In so finding, he noted that ischemic heart disease was a manifestation of obstructive coronary artery disease and could result in angina, myocardial infarction, and/or ischemic cardiomyopathy and congestive heart failure. He found no evidence in the available records that suggested that the Veteran was suffering from any of these conditions. A CT scan documented coronary artery calcification, which was consistent with the presence of coronary artery disease, but there was no evidence that the coronary artery disease was obstructive in nature or resulted in any of the above sequelae. The physician noted that the likely cause of the stroke was atrial fibrillation. Atrial fibrillation could be a secondary consequence of ischemic heart disease, but he found no direct evidence of ischemic heart disease being present or resulting in atrial fibrillation. With respect to whether the Veteran's cause of death was related to disability stemming from the Veteran's in-service exposure to herbicides, the Board notes that the Veteran's service records confirm his service in the Republic of Vietnam. Thus, the Veteran is presumed to have been exposed to herbicides, to include Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, the record reflects that the Veteran was not diagnosed with a disability recognized as associated with herbicide exposure. See 38 C.F.R. § 3.309(e). In particular, the December 2012 VHA opinion provider specifically indicated that the Veteran did not have ischemic heart disease. There is no other evidence that otherwise suggests a diagnosis of ischemic heart disease or other disability associated with herbicide exposure that was related to the cause of the Veteran's death. Hence, presumptive service connection for the cause of the Veteran's death, based on his presumed herbicide exposure, is not warranted. As for whether service connection for the cause of the Veteran's death is warranted on any other basis, none of the competent evidence supports a finding of a medical relationship between the Veteran's military service and the right middle cerebral aneurysm cerebrovascular accident that caused his death. Further, in the only pertinent medical opinion of record, i.e., the September 2011 VA report, states that, after a thorough review of all pertinent evidence of record, a physician found that it was less likely than not that a disability of service origin contributed to his death. Rather, the examiner determined that the Veteran's cause of death was likely the right middle cerebral artery stroke, which was more likely than not due to a cardioembolic phenomenon. The examiner also pointed out that uncontrolled hypertension led to hemorrhagic stroke, rather than an ischemic cardioembolic stroke that the Veteran experienced. Moreover, even supposing that the Veteran's hypertension played a role in the Veteran's death, he found it less likely than not that hypertension was incurred in service, and he found it not clearly established that mental stress, to include PTSD, led to chronic elevated blood pressure. Thus, the only competent opinion of record does not support the claim, and neither the appellant nor her representative has presented or identified any medical opinion or other competent evidence that, in fact, supports her claim. The Board has also considered the medical articles submitted by the appellant, as well as those cited by her representative regarding a relationship between PTSD and anxiety and cardiovascular disease and hypertension. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the medical text evidence submitted by the appellant is not accompanied by an opinion of a medical professional. Additionally, although it does suggest a relationship between PTSD and hypertension, it fails to establish with any degree of certainty a relationship between the claimed PTSD and the development of hypertension, the stroke and his subsequent death. As already discussed, the opinion of the September 2011 VA physician acknowledges the relationships discussed in these articles, but concludes that, in the Veteran's case, this was not the most likely cause of death. The Board has also considered the statements of the appellant and her representative to the extent that they contend that a disability of service origin, to include PTSD and hypertension, caused or contributed to the Veteran's death. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the statements of the appellant and her representative to the effect that the Veteran's heart disease contributed substantially or materially the cause of his death concern internal medical processes of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Thus, the appellant and her representative are not competent to offer medical opinions as to the relationship between the Veteran's service and the cause of his death. In any event, the VA examiner's September 2011 opinion, which provided adequate reasoning for the conclusion that specifically addressed the arguments of the appellant and her representative, is entitled to more probative weight than their more general lay assertions. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). Moreover, as noted, there is no medical evidence to the contrary on file. Under these circumstances, the Board must conclude that the record does not support a finding that a disability of service origin either caused or contributed substantially or materially in producing the Veteran's death, and that, therefore, the claim for service connection for the cause of the Veteran's death must be denied. In reaching the decision to deny the claim, as the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs