Citation Nr: 1312816 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-17 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky 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 James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to January 1946. He died in May 2007, and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2009, the Board remanded this case for additional development, and it requested an opinion from the Veterans Health Administration (VHA) in February 2010. See 38 C.F.R. § 20.901 (2012). In March and April 2010, four VA medical experts reviewed the record and rendered opinions in the case. In August 2010 the Board denied the appellant's claim. She appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2011 the Court vacated and remanded the appeal for further action consistent with its memorandum decision. In a July 2012 decision, the Board remanded the issue for additional development. 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 official death certificate shows that the Veteran died in May 2007 and that the immediate cause of death was organic brain disease, which was due to or a consequence of gastroenterologic bleed, which was due to or a consequence of chronic obstructive pulmonary disease (COPD). 2. Service connection was not in effect for any disability at the time of the Veteran's death. 3. The preponderance of the credible and probative evidence of record is against finding that the Veteran's death was caused by a disability incurred in or aggravated by service or is etiologically related to any incident or disease during the Veteran's active service. CONCLUSION OF LAW A service-connected disability neither caused nor contributed to the Veteran's death. See 38 U.S.C.A. §§ 101(24), 1101, 1110, 1137, 1310, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). The notice requirements of the VCAA require VA to notify the appellant of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the appellant is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, specifically in the context of a § 1310 Dependency and Indemnity Compensation (DIC) claim, the United States Court of Appeals for Veterans Claims (Court) held that section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his 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, 352-53 (2007). The Court also held that a DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes a June 2007 evidentiary development letter, which was issued prior to the August 2007 rating decision, in which the RO advised the appellant of the evidence needed to substantiate her claim of entitlement to service connection for the cause of the Veteran's death. The appellant was also advised of her and VA's responsibilities under VCAA, to include what evidence should be provided by her and what evidence should be provided by VA. The Board acknowledges that the above letter did not comply with all of the requirements set forth in Dingess or Hupp, supra. However, the Board finds that any notice errors did not affect the essential fairness of the adjudication. First, the Board notes that service connection was not in effect for any disability at the time of the Veteran's death. The June 2007 letter informed the appellant that to support her claim, the evidence needed to show that the Veteran died while on active duty or that he died from a service-connected injury or disease. She was asked to provide medical evidence that would show a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that had its onset during or was permanently aggravated by service. She was informed that such evidence should include treatment records showing when the Veteran was first treated for this condition either during or after service. The March 2007 statement of the case notified the appellant of the applicable regulations to establish entitlement to service connection. Despite the inadequate notice provided to the appellant on the disability rating and effective date elements of her claim, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). Because the Board concludes below that the preponderance of the evidence is against the appellant's claim for compensation, any questions as to the appropriate disability evaluation or effective date to be assigned are rendered moot. The Veteran's service treatment records have been obtained and associated with the claims folder, as have pertinent obtainable VA medical records and identified private medical records for which the appellant has submitted proper authorization forms. The Board also obtained VHA opinions in connection with this claim in March 2010 and April 2010. Per the July 2012 remand instructions, a VA examiner in September 2012 conducted a records review which addressed all of the issues that were inadequatedly addressed by previous examiners as determined by the December 2011 memorandum decision. The Board finds that the September 2012 opinions are adequate for the purpose of determining the claim decided herein. The reports reflect that the VA physician reviewed the claims folder, including the Veteran's service treatment records and post-service medical evidence that has been submitted in connection with the appellant's claim. The physician also explained the rationale behind her conclusions through citation to medical principles and the facts of the appellant's case. Although the physician did note the absence of contemporaneous records documenting the Veteran's reported in-service shrapnel wounds, the examiner prefaced her opinion with the phrase "even if the patient did sustain shrapnel wounds," which indicates that the physician did presume such a history prior to rendering her ultimate opinion. Furthermore, as will be discussed in greater detail below, the physician also acknowledged the letters from Dr. A., including his report that the Veteran had osteomyelitis, in providing her rationale. For these reasons, the Board finds that the September 2012 VA record review is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claim). The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the appellant with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the appellant. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Cause of Death Laws and Regulations To establish service connection for the cause of death, the evidence must show that a disability that was incurred in or aggravated by service, or which was proximately due to or the result of a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). 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. 38 C.F.R. § 3.312(c). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Service-connected diseases 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 were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c) (2) (3). The Board notes that it cannot make its own independent medical determinations, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Factual Background and Analysis The appellant is the Veteran's widow who is requesting entitlement to service connection for the cause of the Veteran's death. The Veteran died in May 2007 from, according to his Certificate of Death, an immediate cause of death of organic brain disease, which was due to or a consequence of gastroenterologic bleed, which was due to or a consequence of COPD. The appellant essentially contends that the Veteran sustained shrapnel wounds to his lower extremities during service and that the residuals of those wounds led to his death. The Board notes that the Veteran was not service connected for any disability, to include residuals of shrapnel wounds, organic brain disease, gastroenterological bleed, or COPD, at the time of his death. The death certificate notes that the organic brain disease and COPD had their onset approximately 10 years before his death, while the gastroenterologic bleed had its onset approximately 5 years prior to death. The Veteran served on active duty with the United States Navy from May 1944 to January 1946. In September 1985, the Veteran reported having suffered shrapnel wounds to his legs and feet in 1945. He reported having been treated for these injuries in sick bay and the ship's hospital aboard the U.S.S. Maui. His service treatment records, including a January 1946 separation examination report, do not reflect that he specifically sought treatment for shrapnel wounds to the lower extremities in service. There are, however, a couple of entries reflecting that the Veteran sought treatment for unspecified reasons in September 1945 and October 1945. The evidence of record includes etiology opinions from Dr. A., who was the Veteran's private physician. In an April 2006 letter, Dr. A noted that he saw the Veteran for contraction in both lower extremities in the early 1980's and that he had picked shrapnel from the Veteran's leg wounds in the past. In a June 2007 letter, Dr. A stated that the Veteran's in-service shrapnel wounds caused him to develop osteomyelitis and that he later developed a gastrointestinal (GI) bleed and COPD, both of which he stated were related to the Veteran's service. In February 2010, the Board sought a VHA opinion addressing the likelihood that a disease or injury incurred in service was either a principal or contributory cause of the Veteran's death, and the likelihood that the in-service shrapnel wound injuries described by the Veteran resulted in the long-term residuals that were described by Dr. A. Four opinions were obtained in response to this request. The first of these is a March 2010 opinion from Dr. E.G., a pulmonologist, who opined that the evidence presented in the records suggested that the Veteran was on a chronic ventilator for respiratory failure primarily from congestive heart failure and organic brain disease secondary to stroke(s) and/or dementia. He noted that records from 2002 showed that the Veteran did not have a history of COPD or symptomatology to suggest the same. He noted that there was no spirometric or radiographic evidence of COPD demonstrated in the record. The history of GI bleed was noted to be chronic and complicated, and he deferred to a specialist in gastroenterology for an opinion on this question. He further stated that the history of organic brain disease should be more appropriately furnished by a specialist in neurology. The pulmonologist concluded that there is no connection between the wound injuries described by the Veteran and the COPD diagnosis. He also found it unlikely that the diagnosis of COPD was a principal or contributory cause of the Veteran's death. A March 2010 opinion from Dr. O.L.H., a gastrointestinal/hepatology specialist, indicated that the Veteran had documented anemia of unclear etiology, but he could not find a connection to the stated primary injury from shrapnel to the lower extremities. He noted that the Veteran had a negative colonoscopy for polyps and diverticulosis, but that this does not rule out angiodysplasia, ischemic bowel injury, or an upper GI tract etiology such as stress induced gastritis or ulcers, both of which can be seen with sepsis. The examiner noted that the Veteran had an elevated CEA note, which may be seen with colon carcinoma, but a performed colonoscopy was reported as negative. He also noted that the Veteran had chronic diarrhea, most likely from enteralimentation, but also had documented acute diarrhea imposed on it, likely from antibiotic used for treating his sepsis. The examiner concluded that, after reviewing the Veteran's claims folder, he could not relate any of the above findings to the Veteran's primary injury to the leg or ankle. A March 2010 opinion from Dr. W.L., a neurologist, noted that an extensive review of the Veteran's medical records reveals no record of treatment in service for residuals of shell fragment wounds to the feet and legs. Service treatment records showed no findings regarding the claimed disability. The neurologist noted that the Veteran died at age 93 with multiple medical problems including severe dementia, which is highly unlikely to be caused by residual shrapnel injury to the lower extremities. He also noted that the Veteran was ventilator-dependent from severe COPD with severe anemia due to recurrent rectal bleeding. The neurologist found that there was no basis for establishment of a service-connected neurological condition leading to the Veteran's death. He stated that, despite the opinion of Dr. A, there is no evidence that in-service shrapnel injuries described by the Veteran resulted in any long term neurological residuals or contributed to the Veteran's death. An April 2010 opinion from Dr. S.B., an orthopedic surgeon, noted an October 2007 written statement from the appellant claiming that the Veteran had shrapnel injury to both lower legs and feet. She noted that this injury was reported to have been sustained while the Veteran was in the Philippines and that he reportedly sought treatment at the Indianapolis VA Medical Center. She noted that review of the remaining records, and especially the January 1946 separation physical, were negative for any notation or mention of lower extremity/feet shrapnel or scars. In view of this, the orthopedic surgeon was unable to establish a service connection regarding the shrapnel claim, and she would be unable to establish a connection between shrapnel and the cause of the Veteran's death. As noted above, in December 2011 the Court determined that the opinions rendered by the VA medical experts were inadequate in part because none of the experts discussed Dr. A's diagnosis of osteomyelitis. The Court also indicated that the orthopedist did not respond to a specific question posed and that her opinion was therefore inadequate, the neurologist rendered conclusory findings that were not supported by further discussion, or citation to the record or medical authority and the pulmonologist and gastroenterologist did not provided reasoning to support their conclusions. Thereafter, a September 2012 VA examiner conducted a records review in which she was directed to specifically address the inadequacies of the previous opinions. In his September 2012 records review, the VA examiner indicated that she reviewed the entire claims file and determined that it was less likely than not that the Veteran's cause of death was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that a service treatment record review by her and at least 4 other physicians did not yield evidence that the Veteran was treated in service for shrapnel wounds. She further indicated, however, that even if the Veteran did sustain shrapnel wounds in service (as Dr. A. stated that he removed shrapnel from the Veteran's leg), shrapnel wounds were not mentioned in multiple records as the cause of the Veteran's death. Additionally, there was no other injury in service found to be the cause of the Veteran's death. The examiner also noted that private and VA records, which went as far back as 1994, did not demonstrate that the Veteran was receiving any kind of long term care for her shrapnel wounds. The examiner also noted that there was no evidence in the records that the Veteran had osteomyelitis. The records did show a diagnosis of COPD but the records did not support a finding that the COPD was related to service. The records also showed that a diagnosis of a GI bleed was a major contributor to the Veteran's death but the records did not support that the Veteran's GI bleed was related to any event in service. In general, the records showed that in the last few years of his life, the Veteran was in very poor health. He has multiple hospital admissions which noted over 20 chronic health problems but none of these health problems were related to service. The examiner concluded that it was less likely than not that the Veteran's cause of death was related to, aggravated by or incurred during any event or injury during the Veteran's military service. The examiner also indicated that she reviewed the conflicting medical evidence. She noted that after reviewing all of the treatment reports from 2005 to 2007 in the claims file, none of them stated that the Veteran had osteomyelitis which was contributing to his poor health. She in particular noted a March 2007 history and physical which noted a past medical history of up to 23 health problems, but did not note osteomyelitis or a service related condition. Additionally, a discharge summary from March 2005 from Westlake Regional Hospital noted that the Veteran had up 34 health problems but did not mention osteomyelitis or a service related condition. The examiner also noted that the Veteran's service treatment records did not reflect that the Veteran sought treatment for his reported shrapnel wounds. A review of VA records as far back as 1994 did not support a shrapnel injury claim except for one mention in an aid and attendance housebound form in November 1993 in which the Veteran claimed to have shrapnel in his left leg. However, no x-rays were conducted to confirm this or not. The Board notes that there are conflicting medical opinions as to whether a disease or injury incurred in service was either a principal or contributory cause of the Veteran's death. As noted above, in an April 2006 letter, Dr. A noted that he had picked shrapnel from the Veteran's leg wounds in the past and in a June 2007 letter, he stated that the Veteran's in-service shrapnel wounds caused him to develop osteomyelitis and that he later developed a GI bleed and COPD, both of which he stated were related to the Veteran's service. Conversely, the September 2012 VA examiner specifically found that it was less likely than not that the Veteran's cause of death was incurred in or caused by the claimed in-service injury, event or illness. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board recognizes that both of these conflicting opinions were offered by competent medical experts. The Board also recognizes that Dr. A would presumably be familiar with the Veteran's medical history through having treated him in the past. Nevertheless, the Board is troubled by the conclusory nature of June 2007 opinion asserting that his shrapnel wounds caused him to develop osteomyelitis, particularly in light of the fact that the same physician's earlier April 2006 letter gave no indication of the Veteran having had osteomyelitis despite noting a history of shrapnel wounds. Also, as noted, treatment records dated throughout 2006 and 2007 detail numerous health problems, but give no indication of the Veteran having had osteomyelitis. Furthermore, those records also give no indication that the Veteran's shrapnel wounds played any role in any of the Veteran's ongoing health problems, much less the organic brain disease, gastroenterologic bleed, and COPD that were the immediate cause of the Veteran's death. Given the extremely thorough nature of those records, which detail a variety of health concerns, and the conclusory nature of Dr. A's opinion wherein he provided virtually no rationale for asserting that the Veteran's COPD and gastrenterologic bleed were related to service, and no medical or evidentiary basis for his opinion, the Board must find Dr. A's assertion that the Veteran had osteomyelitis to be without credibility, and his overall opinion as to the relationship between his shrapnel wounds and his death to be of very little probative value. In contrast, the September 2012 VA examiner provided a detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file when concluding that it was less likely than not that the Veteran's cause of death was incurred in or caused by the claimed in-service injury, event or illness. Significantly, the examiner addressed both the appellant's contentions regarding residuals of shrapnel and Dr. A's diagnoses of osteomyelitis, gastrointestinal bleed and COPD and how they related to the Veteran's death. The September 2012 VA examiner also addressed the likelihood that in-service shrapnel wounds during service (which the Veteran's report was assumed accurate) would result in the long-term residuals that Dr. A. discussed in his positive nexus letters. The September 2012 VA examiner noted that that even if the Veteran did sustain shrapnel wounds in service (as Dr. A. stated that he removed shrapnel from the Veteran's leg), shrapnel wounds were not mentioned in multiple records as the cause of the Veteran's death and there was no other injury in service found to be the cause of the Veteran's death. The September 2012 VA examiner also noted that the Veteran did not have osteomyelitis as none of the treatment reports from 2005 to 2007 in the claims file stated that the Veteran had osteomyelitis which was contributing to his poor health. Finally, the September 2012 VA examiner noted that while COPD and a GI bleed were contributing factors to the Veteran's demise, COPD and a GI bleed were not related to the Veteran's service. The Board notes that in forming her opinion, the September 2012 VA examiner specifically addressed all of the inadequacies of the previous VHA examiners as determined by the December 2011 memorandum decision. For these reasons the Board finds the September 2012 VA examiner's assessment to be the most probative. As noted above, the death certificate lists organic brain disease, gastrointestinal bleed, and COPD as the immediate causes of death. The Board notes that the only medical opinion of record that addresses the Veteran's organic brain disease is the March 2010 neurologist's opinion who found that it was highly unlikely the Veteran's severe dementia was related to service, as there is no evidence in-service shrapnel injuries resulted in any long term neurological residuals that caused or contributed to the Veteran's death. While the December 2011 memorandum decision determined that the neurologist rendered conclusory findings, the Board notes that the record contains no competent medical evidence relating the Veteran's organic brain disease to his service. Therefore, as the most probative evidence of record does not relate the Veteran's death, directly or indirectly, to his active duty service, the Board finds that service connection is not warranted for the Veteran's cause of death. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). While the Board is sympathetic toward the appellant, it is bound by the law, and this decision is dictated by the statutes and regulations relating to service connection for cause of death. See 38 U.S.C.A. §§503 , 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has also considered the appellant's own lay assertions that the Veteran's death was related to injuries sustained in service. Certainly, she is competent to relate the Veteran's reports as to such injuries, and to describe symptoms she witnessed him experiencing while they were together. However, the Board finds that there is no evidence of record to show that she has the specialized medical education, training and experience necessary to render a competent medical opinion on a complex medical matter, such as whether in-service shrapnel wounds subsequently caused any of the diseases that directly led to his death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Board finds that the preponderance of the evidence is against granting service connection for the cause of the Veteran's death. The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, for the reasons stated above, entitlement to service connection for the cause of the Veteran's death must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs