Citation Nr: 1314895 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 08-16 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1942 to October 1945. He died in April 2007. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant informed VA in her May 2008 substantive appeal that she currently lived in a nursing home and requested that a hearing be set up by teleconference (i.e., by phone). In June 2008, the RO informed the appellant that VA hearings were not held by phone, and her hearing options were set out to her. In a statement received in July 2008, the appellant reiterated her request. The appellant was then scheduled for a Travel Board hearing in March 2010 but did not report for that hearing. Her February 2010 hearing notification letter was returned to the RO with the notation that she "can't make this hearing either. She is in the nursing home." The return address on the envelope for this letter was noted to be that of her designated power of attorney. The appellant's representative furnished a letter in March 2010 noting that attempts to contact the appellant had not been successful, as no contact number was listed, and the representative formally requested that the Board hearing request be withdrawn. Given the totality of the circumstances, the Board will proceed with this case as though the appellant's hearing request had been withdrawn. See 38 C.F.R. § 20.704 (2012). The Board remanded this matter in November 2011 for further development. In September 2012, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). A response was received in November 2012. The Board requested clarification of the opinion in December 2012. A clarification of the opinion was received in January 2013. The appellant and her representative were provided with a copy of the medical opinion. The appellant's daughter sent a response on behalf of the appellant with respect to the VHA medical expert opinion. Accordingly, this issue is before the Board for appellate review. See 38. C.F.R. §§ 20.903, 20.1304(c) (2012). 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 Veteran died in April 2007. 2. The Veteran's death certificate shows that the immediate cause of the Veteran's death was respiratory failure and the underlying causes of death were pneumonia and myocardial infarction. 3. At the time of the Veteran's death, service connection was in effect for traumatic synovitis of the left knee, evaluated as 40 percent disabling; degenerative joint disease of the right knee associated with traumatic synovitis of the left knee, evaluated as 20 percent disabling; and degenerative joint disease of the lumbar spine associated with traumatic synovitis of the left knee, evaluated as 10 percent disabling. The Veteran received a total evaluation due to individual unemployability effective March 22, 2005. 4. The preponderance of the evidence shows that the Veteran's cause of death was not manifested during the Veteran's period of active service and it has not otherwise been shown to be related to military service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The duty to notify was satisfied through letters dated in June 2007 and November 2011. The claim was subsequently readjudicated, most recently in a July 2012 supplemental statement of the case. See Mayfield, 444 F.3d at 1333. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of her claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, lay statements from the appellant, a VA medical opinion dated in December 2011 and a VHA medical expert opinion dated in November 2012 with a January 2013 addendum. The December 2011 VA opinion reflects that the examiner conducted a review of the Veteran's claims and discussed the relevant evidence of record. Following the above, the examiner provided an explanation for his opinion that appears to be based on the evidence of record. Thereafter, the Board requested a VHA medical expert opinion to provide an opinion with a more detailed explanation. The Federal Circuit Court has upheld the Board's power to both obtain such opinions and adjudicate the matter without RO review, provided that the claimant is provided a copy of the examination report and an opportunity to respond. Disabled American Veterans, et.al, vs. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). The VHA medical expert opinion dated in November 2011 with an addendum in January 2013 shows that the medical expert reviewed the Veteran's claims file to include his VA treatment records. He provided an explanation for his opinion which appears to be based on the evidence of record and his medical expertise. Accordingly, the Board finds the VA examination in conjunction with the VHA medical expert opinion is adequate for adjudication purposes. In addition, as noted in the Introduction, this issue was previously remanded in November 2011. The November 2011 Board remanded requested that the RO/AMC provide the appellant with proper notice with respect to her service connection claim for cause of the Veteran's death, to obtain VA treatment records from 2004 to 2007 and to obtain a VA medical opinion. A November 2011 letter provided the appellant with proper notice. The AMC uploaded the Veteran's VA treatment records from 2004 through April 2007 in Virtual VA. The record also contains a December 2011 VA medical opinion that is supported with an explanation. Thereafter, the appellant received a supplemental statement of the case and the claim was returned to the Board. Thereafter, the Board requested a VHA medical expert opinion to obtain a more complete opinion with supporting rationale. Accordingly, the Board finds that there has been substantial compliance with the November 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The appellant has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the appellant is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claim for Cause of Death The appellant contends that the Veteran's cause of death is related to his military service. Specifically, the appellant contends that the Veteran suffered from posttraumatic stress disorder (PTSD), which could have caused or contributed to his heart attack. See September 2007 notice of disagreement. When a veteran dies of a service-connected disability, the veteran's surviving spouse is eligible for dependency and indemnity compensation. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.5(a), 3.312 (2012). 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 a 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 that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Id. Generally, in order to establish service connection for the cause of death, there must be (1) evidence of death; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and death. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A certificate of death confirms that the Veteran died in April 2007 and lists respiratory failure as the immediate cause of death with pneumonia and myocardial infarction as the underlying causes of death. The record reflects that service connection had been established during the Veteran's lifetime for traumatic synovitis of the left knee, evaluated as 40 percent disabling; degenerative joint disease of the right knee associated with traumatic synovitis of the left knee, evaluated as 20 percent disabling; and degenerative joint disease of the lumbar spine associated with traumatic synovitis of the left knee, evaluated as 10 percent disabling. The Veteran received a total disability evaluation due to individual unemployability effective March 22, 2005. The appellant asserts that the Veteran had PTSD due to his experiences during World War II that contributed to the Veteran's heart attack. See September 2007 notice of disagreement. The Board has carefully reviewed the record and has determined that the preponderance of the evidence shows that the Veteran did not have PTSD related to his active military that was a principal or contributory cause of his death. The Veteran's post service treatment records do not provide a diagnosis of PTSD. A July 2006 psychiatry consult note reveals that the Veteran was diagnosed with severe major depressive disorder. As part of the evaluation, the Veteran denied anxiety, nervousness, panic and auditory or visual hallucinations. The psychiatrist noted that his mood problem was feeling slow, down and gloomy. The Veteran reported that for several months he has had thoughts of suicide, but he has not had suicidal thoughts for the past three months. The Veteran stated that he has not been himself lately because of his recent heart attack and above the knee amputation. The VA treatment records indicate that his depressive disorder was related to heart problems, as well as, the amputation above the left knee. The Veteran's separation examination dated in October 1945 reveals that he was diagnosed with character disorder schizoid. Thereafter, the Veteran applied for service connection for a nervous disorder in October 1945. A rating decision dated in December 1946 denied the Veteran's claim for nervousness on the basis that it was not shown by the evidence of record. Furthermore, the VHA medical expert provided the opinion that the evidence of record does not support the fact that the Veteran had any form of PTSD. Accordingly, the overall evidence shows that the Veteran does not have a current diagnosis of PTSD or any other psychiatric disorder related to service. The only evidence that indicates the Veteran had PTSD prior to his death due to his service which contributed to his death is the statement made by the appellant. The appellant is competent to testify to visible symptoms of the Veteran. However, the statements provided by the appellant are medical opinions on the diagnosis of a mental disorder and the etiology of the Veteran's death. As a lay person, the appellant is not competent to determine that the Veteran had PTSD related to his experience in service and his PTSD contributed to his heart attacks that resulted in his respiratory failure. There is no competent medical evidence of record that indicates the Veteran's had a diagnosis of PTSD prior to death due to his active military service and that the PTSD contributed to his heart problems and ultimately his death. As noted above, the only competent medical evidence of record reveals that the Veteran had a diagnosis of a severe major depressive disorder related to his nonservice-connected physical disabilities. With respect to the issue of whether the Veteran's service-connected disabilities of left knee synovitis, right knee degenerative disc disease or degenerative joint disease of the lumbar spine, the preponderance of the evidence shows that the Veteran's service-connected disabilities were not the principal or contributory cause of death. In this regard, the Board obtained a VHA medical expert opinion in November 2011 with an addendum in January 2013. The medical expert determined in November 2011 that left knee synovitis was a factor in the Veteran's above knee amputation. The amputation most likely led to a decreased in mobility contributing to respiratory failure and pneumonia. However, VA treatment records show that in December 2005 the Veteran was admitted for surgical intervention on his left foot due to an open wound with complicated healing. The treatment records indicate that the open wound was the result of the Veteran's nonservice-connected diabetes mellitus and peripheral vascular disease. The Veteran underwent exploration of the infragenicular peroneal artery for possible femoral distal bypass in January 2006. During the surgery the peroneal artery and all other arteries had significant calcification circumferentially with no soft areas for a reasonable anastomose. All three vessels were explored and were found to be unsatisfactory. The thoracic and vascular surgeon proceeded with an above the knee amputation. VA treatment records reveal that the above the knee amputation was due to the Veterans diabetes mellitus and peripheral vascular disease. Therefore, the Board requested a clarification of the examiner's opinion based on this information. The examiner determined in the January 2013 addendum that since the Veteran's left knee amputation was not likely to be due to the service-connected disabilities, it is less likely than not that his service-connected disabilities had contributed to his respiratory failure as a result of pneumonia and myocardial infarction. The Board notes that this opinion is supported by a December 2011 VA medical opinion. The physician in December 2011 discussed the relevant evidence of record and determined that there is no evidence that the Veteran's service-connected bilateral knee disabilities or lumbar spine osteoarthritis contributed to his death. Accordingly, the Board finds that the VHA medical expert opinion in conjunction with the December 2011 VA medical opinion is probative as to the issue of whether the Veteran's service-connected disabilities substantially or materially contributed to the Veteran's cause of death as it was based on the evidence of record, medical expertise and a supporting explanation. The Board also has considered whether the evidence otherwise links the Veteran's active military service to the cause of his death, respiratory failure, or contributing causes of death of pneumonia and myocardial infarction. After a careful review of the service treatment records, the Board finds no evidence that the Veteran complained of or treated for any respiratory disorders, pneumonia or heart problems during military service. There is no medical evidence that the Veteran was diagnosed with cardiovascular disease while in service or within one year of discharge from service. The Veteran's separation examination dated in October 1945 revealed that his cardiovascular system was normal. A March 1948 VA examination reveals that the Veteran's cardiovascular system and respiratory system were normal. A November 1988 VA treatment record shows that the Veteran's previous cardiac history was negative. Workup with electrocardiogram, Holter and echocardiogram were negative. VA treatment records reveal that the Veteran had coronary artery disease since 2003. Thus, the first evidence of any treatment or diagnosis of a heart disorder was in 2003, approximately 58 years following the Veteran's October 1945 discharge from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). Thus, the record preponderates against the appellant's claim that there is a link between the Veteran's active military service and his death in April 2007. The Board finds that the evidence of record shows that the Veteran died as the result of respiratory failure due to pneumonia and myocardial infarction that was unrelated to his service and his service-connected disabilities. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. 5107(b) (2002); 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 Veteran's cause of death is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs