Citation Nr: 1312957 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 12-33 407A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to July 1952. He died in January 1999, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a June 2012 statement, the appellant "request[ed] to have my appeal go directly to the Board of Veterans Appeals and to have a hearing scheduled at the local Regional office so that I may appear in person before the judge, not videoconference." She withdrew this request in writing in February 2013. Her hearing request is deemed to have been properly withdrawn, and no hearing will be scheduled. 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). The issue of entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1151 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The official death certificate shows that the Veteran died in January 1999. 2. The immediate cause of the Veteran's death was pulmonary hemorrhage, due to or as a consequence of coagulopathy, due to or as a consequence of end stage renal disease. Kappa light chain disease was a contributory cause of death. 3. At the time of his death, the Veteran was in receipt of a 10 percent disability rating for amputation of the left great toe as residual to a gunshot wound of the left foot, effective July 31, 1952. 4. The preponderance of the credible and probative evidence of record establishes that the Veteran's death was not caused or hastened by a disability incurred in or aggravated by service. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1131, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). 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). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. 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 November 2010, May 2011, August 2011, and November 2011 evidentiary development letters, which were issued prior to the initial adjudication of the appellant's claim in April 2012, 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. These letters further advised the appellant as to the type of evidence needed to substantiate the effective date element of her claim, pursuant to the Court's holding in Dingess, supra. Despite the inadequate notice provided to the appellant on the disability rating element of her claim, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. 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 to be assigned are rendered moot. With respect to the DIC aspect of the appellant's claim, the Board finds that the four VCAA letters that are discussed above satisfy the second and third Hupp requirements, as they expressly notify the appellant of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition or based on a condition not yet service connected. The Board acknowledges that the VCAA letters do not notify the appellant of the condition for which the Veteran was service-connected at the time of his death, and that the November 2011 notice informed the appellant that service connection had not been in effect for any disability at the time of the Veteran's death. The appellant was only notified that the Veteran was service-connected for a left great toe amputation in the April 2012 rating decision and the October 2012 statement of the case. The Board finds, however, that no undue prejudice has been done to the appellant by this particular notice deficiency. The Board notes that the Veteran's death certificate lists a cause of death of pulmonary hemorrhage, due to or as a consequence of coagulopathy, due to or as a consequence of end stage renal disease. Kappa light chain disease was listed as a contributory cause of death. No evidence of record, either medical record or lay contention, even suggests that the Veteran's left great toe amputation, which had been performed in January 1952 and of which there was no indication of worsening or complications in the approximately 47 years between the amputation and the Veteran's death, had in any way caused or contributed to the Veteran's death. The Board further notes that the appellant was well aware that the Veteran's left great toe had been amputated due to an in-service gunshot wound. If she did believe this disability had caused or contributed to the Veteran's death, she had been properly informed of how to establish service connection for the cause of death based on a disability that was not yet service-connected. The complete absence of a reference to the left great toe amputation in connection with the claim being decided herein strongly suggests that the appellant does not believe there is a connection between the left great toe amputation and the Veteran's death. The Board thus finds that a remand for the sole purpose of sending the appellant a letter informing her that her husband had been in receipt of a 10 percent rating for amputation of his left great toe at the time of his death is not necessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the appellant relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's service treatment records and relevant VA medical records. The Board notes that the claims file has not been sent to a VA examiner to opine on the issue of whether a service-connected disability caused or contributed to the Veteran's death. The Board finds, however, that such an opinion is not necessary in light of the absence of medical evidence or lay contentions that the Veteran's service-connected left great toe amputation caused or contributed to his death in any manner, or that any primary or contributory cause of death was in any way linked to the Veteran's military service. Thus, the Board finds that it is not necessary to obtain a medical opinion on this question. As a final matter, the Board notes that there is some suggestion of record that there are handwritten medical records from the Tampa VA Medical Center (VAMC) that have not been associated with the claims file. The only evidence of record to this effect consists of a reference by the appellant in her December 2010 written statement to having signed a paper giving the medical staff at the VA hospital permission to perform an ultrasound in connection with a procedure to drain fluid from the Veteran, as well as of a reference in a January 1999 VA record to the appellant having signed the paperwork directing that an autopsy be performed. The Board has considered whether a remand to obtain any such records is required, but concludes that any such records are not relevant to the disposition of the service connection claim. Specifically, neither the appellant nor the medical evidence of record has given any indication of the existence of handwritten records outside of the two records identified above. Consent forms for the performance of the ultrasound with fluid drainage and the autopsy are not in any way relevant to establishing that the Veteran died from a disability that is associated with his military service. (The Board notes that the autopsy report itself is of record, as are the VA treatment records from the time of the Veteran's death.) The medical evidence that is of record is thorough, and there do not appear to be missing handwritten treatment records. Furthermore, as noted above, the appellant herself has not actually alleged the existence of any missing handwritten treatment records, other than perhaps the ultrasound with fluid drainage consent form, which the Board has expressly determined is not relevant to deciding the claim of entitlement to service connection for the cause of the Veteran's death. The Board notes that "the 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim." See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In the case at hand, the document that has been expressly identified by the appellant is not facially relevant to deciding her claim, nor is any autopsy consent form. With respect to any additional handwritten records, the Board finds it is not necessary to remand this claim for the purpose of requesting handwritten treatment records that are not even alleged to exist. See Soyini, supra. 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). II. Cause of Death The appellant has claimed entitlement to service connection for the cause of the Veteran's death. The sole concern of this particular issue is whether the Veteran's death was caused or hastened by a service-connected disability. The question of whether the appellant is entitled to DIC benefits under 38 U.S.C. § 1151 for the cause of the Veteran's death is a separate issue that will be discussed in the remand portion below. The Veteran's Certificate of Death shows that he died in January 1999, and that the immediate cause of death was pulmonary hemorrhage, due to or as a consequence of coagulopathy, due to or as a consequence of end stage renal disease. Kappa light chain disease (which is a form of multiple myeloma) was listed as a contributory cause of death. At the time of his death, the Veteran was service connected for amputation of the left great toe as a residual of a gunshot wound to the left foot, for which he had been in receipt of a 10 percent disability since July 31, 1952. In general, applicable laws and regulations state that service connection may 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. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as cardiovascular-renal disease, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). 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). First, the Board will address the question of whether the Veteran's service-connected left great toe amputation caused or contributed to his death. A November 1953 VA examination report notes that the Veteran's entire left great toe was amputated. The Veteran reported that he experienced difficulty in ambulating and occasional swelling and stabbing pain on the operative site. On examination, he walked and stood on his toes without aid or apparent handicap. He had a sensitive amputation scar and a thick, tender callosity over the distal end of the first metatarsal. Subsequent evidence contains no indication that the Veteran's left great toe amputation had worsened in any way. The Board finds that the Veteran's left great toe amputation was clearly a musculoskeletal injury of a quiescent or static nature involving muscular or skeletal functions and that did not materially affect other vital body functions. Such disability did not contribute to the Veteran's death, which was primarily due to pulmonary hemorrhage, which was due to or a consequence of coagulopathy, which was due to or a consequence of end stage renal failure, and was contributorily due to kappa light chain disease. In short, entitlement to service connection for the cause of the Veteran's death cannot be granted based on the Veteran's service-connected left great toe amputation. The Board will next consider whether the immediate and contributory causes of death that are listed on the Veteran's death certificate may be connected to his military service. As noted above, the immediate cause of the Veteran's death was pulmonary hemorrhage, due to or as a consequence of coagulopathy, due to or as a consequence of end stage renal disease. Kappa light chain disease was a contributory cause of death. The Veteran's service treatment records do not reflect that he ever complained of, or was treated for, symptoms associated with renal disease, pulmonary hemorrhage, coagulopathy, or multiple myeloma. None of these conditions appears in the record until several decades following the Veteran's separation from service. The appellant has made no contention that any of these diseases had been present since service or were otherwise related to the Veteran's military service. There is no medical opinion of record asserting any such connection. In the absence of any such link, service connection for the cause of the Veteran's death cannot be granted based on the Veteran's renal disease, pulmonary hemorrhage, coagulopathy, or kappa light chain disease. In summary, the Board finds that a preponderance of the evidence is against finding a link between a service-connected disability and the Veteran's death. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for the cause of the Veteran's death is not warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. REMAND The appellant has also claimed entitlement to DIC benefits for the cause of the Veteran's death pursuant to 38 U.S.C. § 1151. She essentially contends that the Veteran's death was caused or hastened by a surgical procedure that was conducted while he was hospitalized at the Tampa VAMC. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C.A. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran and his representative in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Thus, in order to establish entitlement to compensation under 38 U.S.C.A. § 1151, there must be (1) evidence of additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, and (2) a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. In the case at hand, as reflected in a December 2010 personal statement, the April 2012 notice of disagreement, and the December 2012 substantive appeal, the appellant appears to be essentially contending that her husband's death occurred as the result of hospital care or medical or surgical treatment that was furnished by the Tampa VAMC. In raising these contentions, the appellant has suggested that the Veteran's death was caused by the performance of a thoracentesis, and in particular was related to the fact that the thoracentesis had to be performed through the Veteran's front rather than his back and that the VAMC used medical students rather than physicians to perform this procedure. VA has obtained an etiology opinion concerning this question. However, it finds that the opinion is incomplete, and it must therefore remand this case to obtain an addendum. Specifically, the Board notes that the January 1999 autopsy report expressly finds that the Veteran had a "[c]hest tube penetrating base of left upper lobe lung laterally and extending 20 cm towards the apex" and expressly diagnoses "[b]ilateral diffuse intraalveolar hemorrhage." The finding of chest tube penetration, however, was not noted in the March 2012 VA medical opinion. Given that the death certificate lists "pulmonary hemorrhage" due to or as a consequence of "coagulopathy," as the immediate cause of death, the Board finds it necessary to obtain an addendum opinion that addresses the role, if any, that the chest tube penetration of the Veteran's lung played in his death. In addition, as discussed at length in the VCAA section above, the Tampa VAMC may have in its possession a January 1999 consent form that has not been associated with the claims file. The record documents several attempts by the RO to determine whether the Tampa VAMC has any handwritten records, but there does not appear to have been a reply. The duty to assist requires VA to make as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). VA will only end its efforts to obtain such records if it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as when the relevant Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Id. On remand, further attempts should be made to either obtain handwritten records from the Tampa VAMC or to determine that these records do not exist or cannot be located. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain copies of any handwritten medical records from the Tampa VAMC. Ensure that those copies are associated with the claims file. The notification and assistance requirements of 38 C.F.R. § 3.159(c)(2) should be followed. Specifically, the RO should make as many requests as are necessary and should only discontinue its attempts to obtain such records when (1) the records are located and associated with the claims file, or (2) it receives notice from the Tampa VAMC or other relevant department or agency that the requested records do not exist or that the custodian does not have them. All efforts to obtain these records should be recorded in the claims folder. If such records are not available, a Formal Finding of Unavailability should be associated with the claims file outlining the steps that were taken to attempt to obtain these records and any responses that were received. 2. Following completion of the above, the claims file should be sent to the examiner who furnished the March 2012 medical opinion. If this examiner is no longer available, the record should be sent to another qualified medical expert. The examiner is asked to review of the claims file and to render an opinion with respect to whether it is at least as likely as not (50 percent probability or more) that the "[c]hest tube penetrating base of left upper lobe lung laterally and extending 20 cm towards the apex" constitutes carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA. If so, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the penetration of the chest tube into the Veteran's lung contributed to or hastened the Veteran's death. In doing so, the examiner should discuss whether there is a relationship between the penetration of the chest tube into the Veteran's lung and the Veteran's pulmonary hemorrhage and coagulopathy. The examiner should, in particular, discuss any relationship between the chest tube penetration and the autopsy diagnosis of "[b]ilateral diffuse intraalveolar hemorrhage." Any opinion expressed must be accompanied by a complete rationale. 3. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs