Citation Nr: 1315442 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-29 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee VA Pension Center in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to January 1967. The Veteran died in October 2008, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Milwaukee VA Pension Center (RO). FINDINGS OF FACT 1. An October 2008 death certificate indicates that the Veteran died in October 2008 at the age of 64. The certificate of death lists the immediate cause of death as acute myocardial infarction due to or as a consequence of coronary artery disease. Hypertension and diabetes were listed as other significant conditions contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, service connection was in effect for Raynaud's phenomenon and duodenal ulcer. 3. The weight of the probative evidence of record does not show that the cause of the Veteran's death was related to his active military service or a service-connected disability. CONCLUSION OF LAW A disability incurred in or aggravated by service did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1116, 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Upon receipt of a substantially complete application for benefits, VA must notify the appellant of what information or evidence is needed in order to substantiate the claim, and it must assist the appellant by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With regard to the appellant's claim for entitlement to service connection for the cause of the Veteran's death, a February 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), rev.'d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (2009), the Court held that when VA receives a detailed claim for death and indemnity compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the Court held that, under section 38 U.S.C. § 5103(a), the notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of 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. The February 2009 letter fully complied with the Hupp requirements. Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The duty to assist the appellant has also been satisfied in this case. The Veteran's service treatment records, identified private treatment records, and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, VA obtained a medical opinion addressing the etiology of the cause of the Veteran's death. In that regard, the Board finds the medical opinion obtained to be adequate in this case, as it provides sufficient explanation to support the conclusion that the cause of the Veteran's death is not related to his service or service-connected Raynaud's phenomenon. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The appellant has not indicated that she found the opinion inadequate in any way. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Although the VLJ in this case did not specifically identify to the appellant, prior to her testimony, the basis of the denial of the issue on appeal and specifically identify the intended focus of the testimony, both the appellant and her representative demonstrated actual knowledge of what was needed, and provided the appropriate testimony to further clarify all lay bases of evidence. That notwithstanding, the representative clearly identified the legal requirements to establishing service connection for the cause of the Veteran's death, and discussed these relevant issues in her presentation. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the appellant's claim, and demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits. As discussed below, the basis of the denial of the appellant's claim on appeal is predicated on a professional medical opinion; as the appellant is not a medical professional, testimony on her behalf or that of her representative would not have resulted in a different outcome. Accordingly, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the October 2011 Board hearing constitutes harmless error. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant contends that the cause of the Veteran's death is related to his service-connected Raynaud's phenomenon. During her October 2011 hearing before the Board, the Veteran's representative testified that she believed that the medical opinion of U.S. Representative S. Kagen, M.D. was sufficient to establish entitlement to service connection for the cause of the Veteran's death. The appellant did not provide any pertinent testimony during the hearing. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.5, 3.312 (2012). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 C.F.R. § 3.312. In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in October 2008 at the age of 64. The certificate of death reported the immediate cause of death as acute myocardial infarction due to or as a consequence of coronary artery disease. Other significant conditions contributing to death but not resulting in the underlying cause were identified as hypertension and diabetes. At the time of the Veteran's death, service connection was in effect for Raynaud's phenomenon, evaluated as 50 percent disabling, and duodenal ulcer, rated as noncompensable. The Veteran's service treatment records are negative for any findings or diagnoses of coronary artery disease, hypertension, or diabetes. VA treatment records reflect diagnoses of and treatment for hypertension beginning in 1994, diabetes as early as 1998, and hyperlipidemia in 2005. Also, a June 1994 VA treatment record notes a family history of coronary artery disease. In support of her claim, the appellant has submitted various internet articles which she claims show that the Veteran's service-connected Raynaud's phenomenon caused or contributed to his coronary artery disease, diabetes, or hypertension which resulted in the myocardial infarction which caused his death. One article, entitled "Raynaud's Phenomenon, Systemic Sclerosis, and Macrovascular Peripheral Disease," indicates that its objective was to study Raynaud's phenomenon and systemic sclerosis in patients with macrovascular peripheral disease. The article states that, in a sample of atherosclerotic patients of high morbid-mortality, patients with Raynaud's phenomenon were five times more prone to coronary disease compared to patients without Raynaud's phenomenon, and that systemic sclerosis was more frequent than expected, suggesting a deeper and bi-directional relationship between systemic sclerosis and atherosclerosis. Another website describes Raynaud's as a vascular disease commonly found in scleroderma, and notes that a 1998 study indicated that people who have Raynaud's may have double the risk of coronary artery disease and stroke. In a July 2009 letter, U.S. Representative S. Kagen, M.D., noted the 2006 article entitled "Raynaud's Phenomenon, Systemic Sclerosis, and Macrovascular Peripheral Disease" and the 1998 study cited in the other article both described above, and concluded that "[t]his information combined with many other articles on RN show a link between RN, which affects the vascular system, and diseases of the cardiovascular system, such as coronary artery disease." Dr. Kagen stated that "[t]his suggests a strong link between [the Veteran's] service connected conditions and his cause of death." A November 2009 VA opinion stated that it is "less likely as not" that the Veteran's Raynaud's phenomenon caused or materially contributed to his death, noting that there is "currently insufficient medical literature to support any causal connection between coronary artery disease and Raynaud's phenomena." An October 2010 VA opinion states that the issue as to whether the Veteran's service-connected Raynaud's phenomenon caused or contributed to his death could not be resolved without resorting to mere speculation, but found that the citations provided by U.S. Representative Kagen were "not sufficient objective evidence to explain a definitive causal connection between Raynaud's phenomena and coronary artery disease." The examiner noted that a medical literature search that she performed failed to elicit objective evidence of a causal connection between those conditions. In January 2011, the appellant provided additional internet articles to support her claim. One article, printed from www.sclero.org, cites a 1998 study which purportedly indicated that people who have Raynaud's may have double the risk of coronary artery disease and stroke. Another internet article provides general information on Raynaud's phenomenon. In October 2012, the Board requested a VHA expert opinion to clarify the impact that the Veteran's service-connected Raynaud's phenomenon may have had on his cause of death. The VHA opinion, provided by a cardiologist, concluded that it is "not at least as likely as not that this Veteran's service-connected Raynaud's phenomenon caused or chronically aggravated this Veteran's coronary artery disease and/or fatal acute myocardial infarction, or otherwise caused or contributed substantially to this Veteran's death." (Emphasis in original). Instead, the examiner linked the Veteran's fatal disease process to his nonservice-connected hypertension, hyperlipidemia, and diabetes. The examiner noted that the Veteran's entire claims file, along with the articles cited by Dr. Kagen, were reviewed in preparing the opinion. The examiner explained that the medical evidence of record indicated that the Veteran had a diagnosis of primary Raynaud's phenomenon, and not secondary Raynaud's phenomenon, along with co-morbid conditions including hypertension, hyperlipidemia, and diabetes. The examiner noted that there was evidence in the medical records of poor diabetes control and the use of antihypertensive agents to control blood pressure dating back to at least 1995, and that these co-morbidities are significant risk factors for coronary artery disease and myocardial infarction. The examiner reviewed the articles cited by Dr. Kagen, and noted that the article entitled "Raynaud's Phenomenon, Systemic Sclerosis, and Macrovascular Peripheral Disease" suggested that Raynaud's phenomenon was studied in relationship to systemic sclerosis, and that the Veteran did not have Raynaud's in relationship to systemic sclerosis. Additionally, the examiner could not locate that study in the medical literature. As to the second article, the study upon which it was based also could not be found in the medical literature for thorough review, but the examiner noted that the author of the article is a rheumatologist who widely published in the field of scleroderma. Further the examiner noted that the internet reference was from a scleroderma website. The examiner stated that if either of the studies was based upon patients with Raynaud's secondary to systemic sclerosis, then they would not be pertinent to the Veteran, as there is no indication that he had a diagnosis of systemic sclerosis. The examiner further noted that review of the available medical literature did not support a significant relationship between primary Raynaud's phenomenon and coronary artery disease or myocardial infarction. After reviewing the evidence of record, the Board finds that service connection for the cause of the Veteran's death is not warranted. The Veteran's service treatment records are negative for diagnoses of coronary artery disease, diabetes, or hypertension. The appellant does not contend, and the evidence does not show, that the cause of the Veteran's death is directly related to service. There is no evidence that the Veteran incurred coronary artery disease, diabetes, or hypertension prior to 1995, over 28 years after the Veteran's discharge from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Similarly, the weight of the competent and probative evidence of record does not reveal that any of the Veteran's service-connected disorders caused or contributed substantially or materially to the Veteran's fatal disease process. While the Board appreciates the opinion provided by U.S. Representative Kagen and the assistance that he afforded to the appellant in this case, the Board respectfully finds the opinion provided by the VHA examiner to be more probative as to the issue of the cause of the Veteran's death in this instance. In that regard, it is unclear what, if any, evidence was reviewed by Dr. Kagen in providing his opinion, aside from the two articles provided by the appellant. Moreover, as noted by the VHA examiner, neither study referenced in the articles relied upon by Dr. Kagen could be located in the medical literature, and a search of the medical literature did not provide any results suggesting a significant relationship between the Veteran's (primary) Raynaud's phenomenon and his coronary artery disease or myocardial infarction. As the basis of the opinion provided by Dr. Kagen was the results of the studies cited in those two articles, the Board does not afford significant probative weight to Dr. Kagen's July 2009 opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). In contrast, the Board affords substantial weight to the VHA opinion. Initially, the Board notes that the opinion was provided by a specialist, as the examiner was a cardiologist. Moreover, the VHA examiner thoroughly researched the articles referenced by Dr. Kagen, which were supplied by the appellant, and found that the studies upon which they were based could not be located in the medical literature. The VHA examiner further noted that the articles provided may well have been considering secondary Raynaud's phenomenon based on the references to scleroderma, and that if that were the case, they would not be at all relevant to the appellant's claim, as the Veteran had primary Raynaud's phenomenon, not secondary. Also, the VHA examiner explained that the available medical literature did not support a relationship between primary Raynaud's phenomenon and coronary artery disease or myocardial infarction. Instead, the examiner concluded that, based on the available medical literature and the medical evidence in the claims file, it was more likely that the Veteran's hypertension, hyperlipidemia, and diabetes (all co-morbid diseases which are significant risk factors for coronary artery disease and myocardial infarction) were likely to have caused or contributed substantially to his death. The Board finds the VHA examiner's opinion to be based upon a thorough review of the medical evidence in the claims file as well as the available medical literature, and fully supported by a thorough and clear rationale. Accordingly, as the most probative medical evidence of record addressing the etiology of the cause of the Veteran's death found that it was "not at least as likely as not" that the Veteran's service-connected Raynaud's phenomenon either caused or substantially or materially contributed to the Veteran's death, the weight of the probative evidence of record does not link the Veteran's fatal disease process to his active military service or to any service-connected disability. Thus, service connection for the cause of the Veteran's death is not warranted. Finally, in reaching this decision the Board 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). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs