Citation Nr: 1315218 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-35 797 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to January 1946. He died in August 2006. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2006 rating decision in which the RO, inter alia, denied the claim for service connection for the cause of the Veteran's death. The RO reconsidered the claim after additional evidence was submitted, but continued the denial by way of a March 2007 rating decision. In November 2007, the appellant filed a notice of disagreement. A statement of the case (SOC) was issued in November 2008, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2008. In correspondence received in March 2011, the appellant cancelled a request for a Board hearing that she had previously made. In July 2012, a Deputy Vice Chairman of the Board granted the motion of the appellant's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The case initially came before the Board in July 2012 at which time it was remanded for additional development. As explained below, that development was substantially completed. A May 2013 review of the electronic, paperless Virtual VA file (VVA) associated with the Veteran reveals no additional evidence pertinent to the appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's death certificate reflects that died in August 2006 at the age of 83, due to cardiac arrest/sudden cardiac death, with underlying causes of coronary artery disease (CAD) and hypertension. 3. At the time of the Veteran's death in August 2006, service connection was in effect for posttraumatic stress disorder (PTSD), rated as 100 percent disabling. 4. Cardiovascular conditions including hypertension and CAD were first manifested many years following the Veteran's separation from service, and there is no persuasive medical evidence or opinion of a medical relationship, or nexus, between the cardiovascular causes of his death and either service or service-connected disability; the most probative and persuasive evidence on this point, consisting of three VA medical opinions, weighs against the claim. 5. A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1310, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 was revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removed the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In a claim for DIC benefits, VA's notice requirements include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a November 2006 pre-rating letter, the RO provided notice to the appellant explaining what evidence and information was needed to substantiate a DIC claim based on a previously service-connected condition, and what evidence and information was needed to substantiate a DIC claim based on a condition not yet service-connected. In a post-decisional July 2010 letter, the RO provided notice to the appellant as to condition for which service connection was in effect at the time of the Veteran's death. After issuance of the May 2010 letter, and opportunity for the appellant to respond; October 2010 and March 2013 supplemental statements of the case reflect readjudication of the claim. Hence, the appellant is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and VA medical opinions provided in April 2010, January 2013, and February 2013. In conjunction with the VA opinions, the reviewing professionals-a psychiatrist (January 2013) and a cardiologist (February 2013)-each had access to and reviewed all the evidence in the claims file and provided opinions regarding whether there was an etiologic link between the cause of the Veteran's death and his active duty service or to a service-connected disability. In each case, the opinions were supported by stated rationale, as will be further discussed, below. The appellant and her representative have not maintained that the VA opinions on file, particularly those provided in 2013, are in any way inadequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). The Board also finds that no additional RO action on the claim herein decided, prior to appellate consideration, is required. In particular, as noted, there has been substantial compliance with the actions requested in prior Board remand of July 2012. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the appellant has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. There has been no indication that the appellant has any further information or evidence to submit in support of her claim (to include in the April 2013 brief filed by the appellant's representative, on his behalf. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background The record reflects that the Veteran died in August 2006 at the age of 83, due to cardiac arrest/sudden cardiac death, with underlying causes of coronary artery disease (CAD) and hypertension. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD). In August 2006, the appellant filed a service connection claim for the cause of the Veteran's death. In support of her claim, the appellant submitted several internet and newspaper articles discussing a potential correlation between PTSD and heart disorders. Also in the claims file is a May 2001 statement by the Veteran's private heart doctor, Dr. T.F.T. referencing a volume of the Annals of Behavioral Medicine, discussing that there existed a possibility of PTSD resulting in an increased incidence of coronary artery disease. The doctor further observed that CAD was obviously very complex with the exact causative mechanisms not yet having been defined. In January 2007, Dr. T.F.T. provided a second medical statement noting that a recent study had apparently linked Veteran's with PTSD to the subsequent development of future heart disease. A copy of a January 2007 article referencing the study, which was conducted by Harvard and Boston University researchers was also added to the record. Thereafter, the RO sought review of the Veteran's claims file by a VA physician to obtain an opinion regarding the cause of the Veteran's death. In this regard, the claims file includes an April 2010 memorandum in which a VA PTSD examiner stated that because the general area of heart disease and coronary artery disease (CAD) is not a psychiatric condition, the question as to cause would be more appropriately addressed by a cardiologist. No opinion was provided at that time. The claims file was then forwarded for a VA heart physician for an opinion. The opinion appears to have been prepared by a VA physician's assistant, and cosigned by a VA staff surgeon. The author of the opinion ultimately concluded that "death due to cardiac arrest from coronary artery disease is not caused by, a result of, or aggravated beyond its natural PTSD." In the remainder of the opinion, the author noted that the medical research did not support the claim of the Veteran's family that PTSD caused or contributed to CAD and death. The author commented on a January 2007 article submitted by the family physician as establishing a possible link between PTSD and heart disease, but observed that "a link is not causality but implies speculation." The author went on to note that researchers at the Harvard School of Public Health had discovered a new aspect of PTSD in that "it may increase the risk of heart disease," going on to say "the term 'may' implies speculation not causality." As explained in a Remand issued in July 2012, the Board found that the author of the April 2010 opinion failed to address the 2001 statement of the Veteran's physician, and also failed to assess the matter of whether the Veteran's PTSD as likely as not caused either cardiac arrest or the underlying cause of death, hypertension. It was also noted that author also did not address whether the Veteran's service-connected PTSD contributed substantially or materially to death or that it aided or lent assistance to the production of death, in and of itself. The Board found the August 2010 opinion inadequate and requested that another VA opinion addressing the aforementioned matters be provided. In January 2013, an opinion was provided by a VA staff psychiatrist, who indicated that he had thoroughly reviewed the claims file and agreed with the findings and opinions made by VA doctors in 2010. The psychiatrist noted that the Veteran died of CAD and hypertension. It was observed that this was a multifactorial condition and that many veterans suffered from PTSD or other psychiatric problems without it resulting in cardiovascular disease, including hypertension or CAD. The psychiatrist further mentioned that articles on file referenced a possible relationship between PTSD and early coronary disease or other adverse cardiac outcomes, but noted that: (1) this had not been established in medical literature; and (2) the Veteran did not die prematurely as a result of cardiac disease, but at advanced age from CAD, which was the leading cause of death at that age, irrespective of a diagnosis of PTSD. The psychiatrist concluded that it appeared less likely than not there was any relationship between the Veteran's service-connected PTSD and his death. It was also suggested that the file be referred again for final disposition to a cardiologist, since definitive opinions regarding cardiac pathology should be rendered by a specialist whose scope of practice includes such diseases. The psychiatrist added that this was not an area which falls within the purview of a psychiatrist's specialty, further commenting that nevertheless, as a licensed physician, he believed his opinion to be valid. In February 2013, an additional opinion was obtained from a VA cardiologist, who indicated that he had thoroughly reviewed the claims file and agreed with the findings and opinions made by VA doctors in 2010 and January 2013. The specialist stated that as a cardiologist, he felt that the diagnosis of PTSD was not at least as likely as not the cause of death from reported sudden cardiac death due to CAD. The cardiologist noted that private medical records revealed that the Veteran had been treated for CAD since 1991 and underwent coronary artery bypass graft surgery in 1999. It was observed that despite this history of significant CAD, the Veteran was able to able to survive for 15 more years, although he also had additional risk factors including: age, hypertension, tobacco use, hyperlipidemia and diabetes. A history of cardiovascular disease affecting the Veteran's father was also noted. The doctor explained that CAD was the leading cause of death in the general population, surpassing all other cancers combined, and accounting for about 1/3 of all deaths in subjects over age 35. In conclusion, it was noted that with respect to the references of possible reported "links" of PTSD with CAD, this was in the opinion of the cardiologist, not causal. III. Analysis The appellant contends that the Veteran's service-connected PTSD caused the heart condition that led to his death. She reports that he was very combative during the last two years of his life and that his nerves were so bad that he could not even hold onto a coffee cup, and further contends that this PTSD-related anxiety caused the heart condition that ultimately caused the fatal cardiac arrest. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). To be considered a contributory cause of death, it must be shown that service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). It is not sufficient to show that service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim must be denied. As an initial matter, the appellant has not specifically alleged, and the evidence does not demonstrate, that the Veteran's death was directly related to service. She has not argued that the fatal cardiac condition which was determined to be the cause of the Veteran's death was present during active duty, or the first post service year. Moreover, the Veteran's service treatment records are negative for any such findings, and there is no medical evidence that any cardiovascular condition was manifested within the first post-service year; rather, private medical records indicate that the Veteran was first diagnosed with CAD in 1991, more than 40 years after his separation from service. There also is no medical evidence or opinion whatsoever to even suggest that the cardiac condition resulting in the Veteran death had its onset in or was otherwise medically-related to service. The appellant has asserted that the Veteran's death was linked to his service-connected PTSD. In this regard, the Board notes that, under 38 C.F.R. § 3.310(a), service connection may be granted for disability (or death) that is proximately due to or the result of a service-connected disease or injury. At the time of the his death, service connection was in effect for PTSD , for which a 100 percent evaluation was granted effective from August 2002. The file contains three VA medical opinions provided in April 2010, January 2013 (psychiatrist) and February 2013 (cardiologist), all to the effect that it was not at least as likely as not that there was any causatory or contributory relationship between the Veteran's service-connected PTSD and his death due to CAD and hypertension. Factors such as the Veteran's age, his tobacco use, family history, and prevalence of CAD in the general population over 35, were all identified as bases supporting these opinions. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Medical opinions provided in both 2010 and 2013 addressing the question of a relationship between service-connected PTSD and the causes of the Veteran's death due to CAD and hypertension were not supportive of the claim, and were based on a comprehensive and accurate review of the history of the case, with rationale explaining the opinions supported by evidence pertaining to his specific case. Accordingly, these opinions are found to carry significant weight. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). The appellant has not provided any competent medical evidence to rebut these opinions or otherwise diminish their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Significantly, no contrary medical evidence or opinion specific to the Veteran at issue in this case has been presented or identified. The Board observes that medical treatise evidence, purporting to link psychiatric conditions/PTSD to cardiac conditions, by virtue of research studies, were submitted by the appellant for the record. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts, rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In this case, the proffered evidence was not accompanied by any positive opinion of a medical professional. In this case, the articles provided spoke only in general terms and provided no information or evidence pertinent to this Veteran. As such, they are effectively of no probative value as related to the claim on appeal. Similarly, medical statements were provided by Dr. T.F.T. in 2001 and 2007 referencing studies and medical literature which addressed the possibility of linkage of psychiatric conditions/PTSD and heart/cardiac conditions. However, the doctor himself did not opine as to any such actual etiological relationship in this case. Instead the mere possibility of such relationship based on specifically identified articles was mentioned. In this regard, although pertinent, medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board observes that an award of service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102. Accordingly, the opinions of Dr. T.F.T. are of far less probative and persuasive value in this case than those provided by VA in 2010 and 2013. Furthermore, to whatever extent the appellant has attempted to herself link the Veteran's service connected PTSD to the causes of his death due to cardiovascular conditions, as a layperson without the appropriate medical training and expertise, she is not competent to offer a probative opinion on such complex medical matters. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), diagnosing and identifying the etiology of the bilateral shoulder and left arm conditions here at issue falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Accordingly, however well meaning, to whatever extent the assertions of the appellant are being advanced to establish a medical relationship between the Veteran's death and either service or service-connected disabilities, such evidence must fail. Matters of diagnosis of disabilities not capable of lay observation, and the medical etiology of any such disability, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As laypersons not shown to possess appropriate medical training and expertise, neither the appellant nor her representative is competent to render a persuasive opinion on any medical matter upon which this claim turns. See, Bostain v. West, 11 Vet. App. 124, 127 (1998. Simply stated, the determination as to the cause of the Veteran's death is a complex medical question for which the appellant lacks adequate medical training to answer. See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, any lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for the cause of the Veteran's death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs