Citation Nr: 1307334 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 11-18 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. He was awarded a Purple Heart Medal. He died on October [redacted], 2008. The appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs Regional Office (VARO) in Philadelphia, Pennsylvania. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7101 (West 2012) and 38 C.F.R. § 20.900(c) (2012). Finally, this case was previously before the Board in November 2011 and September 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. The Veteran died on October [redacted], 2008. 2. According to the Certificate of Death, the immediate cause of the Veteran's death was atherosclerotic cardiovascular disease. Other significant conditions contributing to death were hypertension, congestive heart failure, coronary artery disease, and acute myocardial infarction. 3. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder, evaluated as 50 percent disabling; residuals of cold injury to the right lower extremity, evaluated as 30 percent disabling; residuals of cold injury to the left lower extremity, evaluated as 30 percent disabling; and the residuals of a shell fragment wound to the left wrist, evaluated as noncompensably disabling. In addition, at the time of his death, the Veteran was in receipt of a total disability rating based upon individual unemployability, effective from June 10, 2002. 4. The Veteran did not die as a result of a service-connected disability, nor did a service-connected disability or disabilities cause or contribute substantially or materially to his death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5103, 5103A (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. § 5103A have been met. There is no issue as to whether the appellant was provided the appropriate application form, or the completeness of her application. VA notified the appellant in July 2009 of the information and evidence needed to substantiate and complete her claim, to include notice of what part of that evidence was to be provided by her, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate her claim, and, as warranted by law, obtaining VA opinions. As to the issue currently before the Board, there is no evidence that additional records have yet to be requested, or that additional opinions are in order. Service Connection for the Cause of the Veteran's Death In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes the appellant's multiple contentions, as well as both VA and private treatment records and examination reports, statements by the Veteran's family members and friends, and various internet articles and/or studies. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the appellant's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The appellant (the widow of the Veteran) seeks service connection for the cause of the Veteran's death. In pertinent part, it is contended that the Veteran's service-connected disabilities, and, in particular, his service-connected posttraumatic stress disorder, caused or contributed substantially to the cardiovascular disease which ultimately led to the Veteran's death. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran served for ninety (90) days or more during a period of war, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order 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 caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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 (West 2002); 38 C.F.R. § 3.312 (2012). There are primary causes of death which, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have had a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ, and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4) (2012). In the case at hand, a review of the record discloses that the Veteran died on October [redacted], 2008. According to the Certificate of Death, the immediate cause of the Veteran's death was atherosclerotic cardiovascular disease. Other significant conditions contributing to death were hypertension, congestive heart failure, coronary artery disease, and an acute myocardial infarction. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder, evaluated as 50 percent disabling; the residuals of cold injury to the right lower extremity, evaluated as 30 percent disabling; the residuals of cold injury to the left lower extremity; evaluated as 30 percent disabling; and the residuals of a shell fragment wound to the left wrist, evaluated as noncompensably disabling. At the time of death, the Veteran was additionally in receipt of a total disability rating based upon individual unemployability, effective from June 10, 2002. Service treatment records, it should be noted, are unavailable, in that such records were apparently destroyed in a fire at the National Personnel Records Center in 1973. In fact, the earliest clinical indication of the presence of cardiovascular disease is revealed by a VA general medical examination dated in November 1990, more than 36 years following the Veteran's discharge from service, at which time there was noted the presence of peripheral vascular disease, and some elevated blood pressure measurements. Hypertension and coronary artery disease were first diagnosed no earlier than May 1997, once again, many years following the Veteran's discharge from service. The Board observes that, at the time of a subsequent general medical examination in November 2004, there was noted a past history of diabetes, coronary artery disease, congestive heart failure, hypertension, coronary artery bypass grafting, myocardial infarction, and transurethral resection of the bladder. When questioned, the Veteran complained of constant pain, aching, burning, and itching of his bilateral feet, in conjunction with abnormal toenail growth. According to the Veteran, his feet itched to the point where he found it necessary to take his shoes and socks off frequently during the day and rub them. Reportedly, the Veteran's feet had been cold since the time of his service in Korea. On physical examination, the Veteran's lower extremities showed no evidence of any edema, cyanosis, or clubbing. However, there was 1+ pitting edema of both lower extremities, with accompanying dry, scaly skin. Monofilament testing was decreased by 50 percent in the plantar surfaces bilaterally, though position sense was within normal limits. Further examination revealed decreased ability to palpate the pedal pulse (1+), which was faint in the bilateral feet. The Veteran's feet were cold to the touch, though the tips of his toes showed no active lesions. Noted at the time of examination was a reddened area on the third toe of the left foot, which appeared to be infected. Otherwise, onychomycosis was present in all 10 toes. At the time of examination, the Veteran displayed a good range of motion to the ankle, as well as a good circular range of motion, and good coordination. Dorsiflexion was from 0 to 20 degrees, with plantar flexion from 0 to 45 degrees, and no pain, weakness, or decreased endurance with range of motion measurements. At the time of examination, the Veteran was not able to significantly ambulate. In fact, when standing, he was slow to rise and somewhat bent over, with significant weakness in the lower extremities. The diagnoses noted at the time of examination were cold injury to the bilateral feet with accompanying residual pain; Type II diabetes mellitus; coronary artery disease; congestive heart failure; hypertension; and osteoarthritis. According to the examiner, the Veteran's cold injury residuals did contribute to the weakness and easy fatigability in his feet. At the time of a VA psychiatric examination in December 2004, the Veteran denied any history of inpatient psychiatric hospitalizations. However, he had reportedly been treated by the posttraumatic stress disorder clinical team since 1997. According to the examiner, this consisted of sessions with the psychiatrist every 8 to 12 weeks, up until June 2004, at which time the Veteran began to attend a weekly Korean War Veterans Support Group. On mental status examination, the Veteran was casually dressed, well groomed, well oriented, and cooperative. According to the examiner, the Veteran's mood appeared slightly depressed, while his affect was tense and irritable. At the time of examination, the Veteran denied both suicidal and homicidal ideation. However, he did express considerable anger about never having received a Combat Infantryman's Badge despite the considerable risks he endured as a forward observer in heavy combat. When questioned, the Veteran denied psychiatric symptomatology. Moreover, no such symptomatology was manifested during the course of the psychiatric interview. The Veteran's insight and judgment appeared to be good, and his recent and remote memory were grossly intact, though he did report some problems with recent memory. Significantly, according to the examiner, the Veteran's recent memory appeared to be within the normal range. When further questioned, the Veteran reported some periodic panic attacks. In terms of posttraumatic stress disorder, the Veteran indicated that he experienced intrusive combat memories several times a month of buddies who were killed or wounded. Also noted was a loss of interest in activities he used to enjoy, such as hunting, fishing, and baseball games. According to the Veteran, he experienced approximately 5 hours of broken sleep a night with the help of medication. Also noted were problems with irritability and angry flare-ups, though according to the Veteran, his medication and therapy helped to control this. The pertinent diagnosis noted was moderate to severe chronic posttraumatic stress disorder, with a Global Assessment of Functioning Score of 51. During the course of VA outpatient treatment in May 2008, it was noted that the Veteran was sleeping relatively well at night, and that his anger was under good control. Additionally noted was that the Veteran's anxiety was reduced, and that he showed more flexibility in discussing various issues. According to the evaluating physician, the Veteran's appetite was unchanged, and his energy level was fair. Moreover, his thought processes were logical and goal-directed, and his mood was euthymic. The Veteran's affect was full, and his speech was normal in rate and volume. Insight was good and judgment intact, and the Veteran denied any suicidal or homicidal intentions. The pertinent diagnosis noted was moderate posttraumatic stress disorder, with a Global Assessment of Functioning Score of 55. In a VA primary care note of July 2008, it was noted that the Veteran was being seen for followup of his diabetes, hypertension, coronary artery disease and chronic kidney disease. Also noted was a history of bladder carcinoma, with transurethral resection of a bladder tumor in December of 2003. According to the treating physician, the Veteran had coronary artery bypass grafting done in 2001, and a right coronary stent placed in September 2006. Moreover, the Veteran was being followed in the Diabetes Clinic for his diabetes, given that it had been "very hard" to control his blood sugars. In March 2012, the opinion of a VA psychologist was sought regarding whether the Veteran's service-connected posttraumatic disorder had contributed in any way to his death. Following a review of the Veteran's entire claims folder and other medical records, that examiner indicated that the Veteran's fatal cardiovascular disease was less likely than not proximately due to or the result of his service-connected posttraumatic stress disorder. More specifically, following review of all available evidence, including postservice treatment records, the Veteran's Certificate of Death, lay contentions of record, and the appellant's survivors citing of medical literature, it was the opinion of the evaluating psychologist that there was "no evidence" available to suggest any connection between the Veteran's service-connected posttraumatic stress disorder and the nonservice-connected atherosclerotic cardiovascular disease which resulted in his death on October [redacted], 2008, as identified by the Office of the Medical Examiner in September of that same year. Further noted was that "no connection" had been established by accredited research demonstrating any connection between posttraumatic stress disorder and atherosclerotic cardiovascular disease, and no such link was established or identified in available treatment records. Under the circumstances, there was no medical or scientific research literature which supported the contention that posttraumatic stress disorder caused atherosclerotic cardiovascular disease. Accordingly, the Veteran's posttraumatic stress disorder did not cause or contribute in connection with another condition to the Veteran's death. Regarding the Veteran's residuals of cold injury, in March 2012, following a full review of the Veteran's claims folder and other medical records, a VA nurse practitioner offered her opinion that the Veteran's fatal cardiovascular disease was less likely than not proximately due to or the result of his service-connected residuals of cold injury. This was felt to be the case given that the Veteran had multiple medical conditions which might have contributed or aggravated his cold injury of the lower extremities, including diabetes mellitus, coronary artery disease, myocardial infarction (with stent placement), congestive heart failure, peripheral vascular disease, venous insufficiency, a history of smoking five packs of cigarettes per day, hyperlipidemia, hypertension, deep vein thrombosis and morbid obesity. According to the evaluating nurse practitioner, all of the aforementioned medical conditions affected the vascular system on both the macro and microvascular level. However, the reverse would not have been contributory to the Veteran's death in a substantial way. Symptoms described in the Compensation and Pension examination in 2004 would have been due to his cold injury, diabetes mellitus, peripheral vascular disease, smoking history, and morbid obesity combined. As stated on the Veteran's death certificate, the cause of death was atherosclerotic heart disease, with hypertension, congestive heart failure, and acute myocardial infarction being significant conditions contributing to his death. Under the circumstances, the Veteran's death was not caused either substantially or materially by his service-connected residuals of cold injury, which caused itching, pain, burning, and abnormal toenail growth. Nor was it at least as likely as not the case that the Veteran's service-connected residuals of cold weather injury to his bilateral lower extremities jointly or with some other condition were the immediate or underlying cause of death, or etiologically related thereto. In an addendum to the aforementioned VA psychological opinion dated in October 2012, the same VA psychologist who had provided the March 2012 opinion once again indicated that the Veteran's fatal cardiovascular disease was less likely than not proximately due to or the result of his service-connected posttraumatic stress disorder. Moreover, following a review of all available evidence, including postservice treatment records, the Certificate of Death, lay contentions of record, and the appellant's survivors citing of medical literature, to include the addition of recent internet-cited studies, the examiner was still of the opinion that there was no evidence available to suggest any specific connection between the Veteran's service-connected posttraumatic stress disorder and his atherosclerotic cardiovascular disease, which was the recorded cause of death on October [redacted], 2008, as identified by the Office of the Medical Examiner on October 9th of that same year. According to the evaluating psychologist, and as noted in his previous opinion, no connection had been established by accredited research demonstrating any causal connection between posttraumatic stress disorder and atherosclerotic cardiovascular disease. Nor was any such causal link established or identified in available treatment records. Under the circumstances, it was the conclusion of the evaluating psychologist that there was no medical or scientific research literature which supported the contention that posttraumatic stress disorder caused atherosclerotic cardiovascular disease. Nor did the Veteran's posttraumatic stress disorder cause or contribute in conjunction with another condition to the Veteran's death. Regarding various internet articles recently submitted by the appellant, the examiner noted that the point of contention consisted of the results of two specific studies, only one of which appeared to be related to a peer-review journal. In that regard, the first study was clearly a correlational study, which in no way identified a causal relationship between posttraumatic stress disorder and heart disease. In fact, the article dealt with health problems in general, and not heart disease in particular. Moreover, the second study did not address posttraumatic stress disorder "at all," but rather referred to some undefined generic trauma which was not even identified as having any relationship to psychiatric issues. According to the examiner, the second report was irrelevant to the case at hand. Once again, considering the additional cited evidence, there remained no accredited research which established a causal link between posttraumatic stress disorder and heart disease of any kind. However, there was substantial accredited research establishing a causal link between cigarette smoking and heart disease, obesity and heart disease, and genetic factors and heart disease. According to the examiner, it was important to note that, according to medical records, the Veteran smoked five packs of cigarettes a day for 20 years, was morbidly obese, and had a family history of arteriosclerosis. For these reasons, the examiner reaffirmed his previous opinion, concluding that, based on all available evidence, the Veteran's atherosclerotic cardiovascular disease, or, for that matter, any form of related heart disease, was less likely than not proximately due to or the result of the Veteran's service-connected posttraumatic stress disorder. The Board finds the aforementioned opinions of a VA psychologist and nurse practitioner highly probative, because those opinions were based upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) [factors for assessing the probative value of a medical opinion are the physician's (or psychologist's/nurse practitioner's) access to the claims file, and the thoroughness and detail of the opinion]. The VA examiners reviewed the Veteran's claims folder, discussed the Veteran's medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. See Hernandez-Toyens v. West, supra. Under the circumstances, the Board is of the opinion that the probative medical evidence of record fails to establish that the Veteran's service-connected disabilities, and, in particular, his service-connected posttraumatic stress disorder and/or cold injury residuals caused or contributed substantially or materially to his death from atherosclerotic cardiovascular disease. In evaluating the appellant's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the appellant has attributed the Veteran's death from cardiovascular disease to his service-connected posttraumatic stress disorder and/or cold injury residuals. However, there currently exists no persuasive evidence that the Veteran's posttraumatic stress disorder or residuals of cold injury to his lower extremities caused or contributed in any substantial way to his death from atherosclerotic cardiovascular disease. Significantly, and as noted above, over the course of his life, the Veteran suffered from many other serious medical problems, including diabetes mellitus and bladder cancer. The Board acknowledges the appellant's statements, and those of various family members, regarding the relationship between the Veteran's service-connected disabilities and his fatal atherosclerotic cardiovascular disease. However, the Board rejects those assertions to the extent that they seek to etiologically relate the Veteran's service-connected posttraumatic stress disorder and cold injury residuals to his fatal cardiovascular disease. Those statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. Moreover, the appellant and other family members, as lay persons, are not competent to create the requisite causal nexus in this case. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the appellant or her family members possess. See Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). The Board acknowledges that, during the course of an Informal Hearing Presentation in September 2012, the appellant's accredited representative requested that the opinion of an independent medical expert be obtained prior to a final adjudication of the appellant's claim. However, following a review of the entire evidence of record, the Board is of the opinion that the appellant's case does not present a question of such medical complexity or controversy as to require such an opinion. 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(d) (2012). Moreover, as is clear from the above, no less than three separate opinions have been obtained regarding the alleged relationship between the Veteran's service-connected disabilities and the cause of his death. Finally, in reaching this determination, the Board is cognizant of the fact that, in a case such as this, where the Veteran's service treatment records are unavailable through no fault of his own, VA has a heightened obligation to assist the appellant in the development of her claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). However, in the case at hand, it is clear that all necessary and proper actions have been taken to assist the appellant in the pursuit of her current claim. In that regard, multiple attempts were undertaken to obtain the Veteran's service treatment records, all to no avail. Moreover, the appellant was given numerous opportunities to submit supporting evidence, and did, in fact, avail herself of those opportunities. The Board has taken into consideration the appellant's arguments regarding the merits of her claim. Based on the aforementioned, however, the Board is compelled to conclude that there exists no competent, probative, or persuasive evidence that the Veteran's service-connected disabilities, and, in particular, his service-connected posttraumatic stress disorder and/or residuals of cold injury, caused or contributed substantially or materially to his death from cardiovascular disease. Accordingly, the preponderance of the evidence is against the appellant's claim, and service connection for the cause of the Veteran's death must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs