Citation Nr: 1316634 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 07-28 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to February 1972. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In November 2007, the appellant testified at a formal hearing at the RO. The transcript of the hearing has been reviewed and is associated with the claims file. This case was previously before the Board in January 2011 and August 2012 and remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remand order and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As noted in the August 2012 remand, in February and April 2011 statements, the appellant asserted that the VA incorrectly prescribed the Veteran Motrin, 800 mg, for pain in the last months of his life, which should not have been given to someone with diabetes mellitus and bad kidneys. She argues it led to his death. It appears the appellant is seeking to file a claim for entitlement to service connection for the cause of the Veteran's death under the provisions of 38 U.S.C.A. § 1151. In a March 2013 IHP, the appellant's representative also clarified that he was arguing that the Board should grant the DIC claim because the Veteran should have been rated as totally disabled for a period of more than 10 years. The representative has raised a claim for DIC benefits under 38 U.S.C.A. § 1318. This claim was previously denied in a January 2007 rating decision. In April 2013, the Board received a letter from Dr. W.M. indicating that she was unable to find medical records from August 2004. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2012). As the August 2004 letter indicates that the Veteran's medical records were unavailable, the August 2004 letter does not provide evidence pertinent to the appellant's claim. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. The issues of entitlement to service connection for the Veteran's cause of death under 38 U.S.C.A. § 1151 and whether new and material evidence has been received to reopen a claim for entitlement to service connection for entitlement to DIC benefits under 38 U.S.C.A. § 1318, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran died in March 2006 as a result of end stage liver disease. 2. At the time of his death, the Veteran was service connected for PTSD, rated as 100 percent disabling, type II diabetes mellitus, rated as 10 percent disabling, mild peripheral neuritis of the left lower extremity, rated as 10 percent disabling, and mild peripheral neuritis of the right lower extremity, rated as 10 percent disabling, and the Veteran had a total disability rating for compensation purposes based on individual unemployability (TDIU), effective April 14, 2005. 3. The evidence fails to establish a link between the cause of the Veteran's death and his service or service-connected disability, or to service or any remote incident therein. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim for service connection for the Veteran's cause of death. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The U.S. Court of Appeals for Veterans Claims (Court) held that in the context of a claim for cause of death benefits, 38 U.S.C.A. § 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 or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Prior to initial adjudication of the appellant's claim, a letter dated in April 2006 fully satisfied the duty to notify provisions for the first three elements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The RO provided Hupp compliant notice in a January 2011 letter. Although this letter was not sent prior to initial adjudication of the appellant's claim, there is no prejudice to the appellant as the claim was reajudicated in March 2012 and February 2013 supplemental statements of the case. VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. In August 2012, the agency of original jurisdiction (AOJ) requested that the appellant provide a consent form for records from March 2006 from Henry Ford Hospital, in compliance with the August 2012 remand. VA also previously requested relevant medical records in a January 2011 VCAA letter, in compliance with the January 2011 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The appellant responded with a completed Authorization and Consent Form for Dr. W.M. The April 2013 letter from Dr. W.M. indicates that she was unable to find the medical records requested by VA. She noted that they would continue searching for the records of the only one office visit by the patient in August 2004. As Dr. W.M. indicated that her office could not find the record, the Board finds that VA satisfied its duty to assist. The appellant has not submitted a consent form for records from the Henry Ford Hospital from of the time of the Veteran's death. VA requested the Veteran's final hospital summary in an April 2006 notice letter. The RO further notified the appellant that the records from Henry Ford Hospital were relevant to the claim at the RO hearing in November 2007. The RO hearing officer told the appellant that VA could obtain the records if she completed a release of information form. VA also specifically requested the records following the August 2012 remand. In this regard, it is noted that the duty to assist is not a one-way street. If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA's duty must be understood as a duty to assist the veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). The appellant has at no time referenced other outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The Board acknowledges VA has not obtained a medical opinion with respect to the appellant's cause-of-death claim. But in DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008), the Federal Circuit Court held that 38 U.S.C. § 5103A(a) does not always require the Secretary of VA to assist a claimant in obtaining a medical opinion or examination for a DIC claim, but it does require VA to assist a claimant in obtaining such whenever it is necessary to substantiate the DIC claim. The Federal Circuit Court added that there was no duty to provide a VA opinion in a DIC claim under 38 U.S.C.A. § 5103A(d) since this provision is explicitly limited to claims for disability compensation (service connection), which is defined as a monthly payment made by VA to a veteran, and therefore does not pertain to a DIC claim. Id. But Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008)(holding that in the context of a DIC claim, VA must also consider that 38 U.S.C. § 5103A(a) only excuses VA from making reasonable efforts to provide an examination when no reasonable possibility exists that such assistance would aid in substantiating the claim). In the present case, the Veteran's death certificate lists the Veteran's cause of death as end stage liver disease. As discussed below, although in a February 2011 letter, DR. R.K. indicated that the cause of death was related to renal failure, the Board finds that the letter lacks probative value. There is no evidence of record linking the Veteran's service or any service-connected disability to the end stage liver disease that ultimately resulted in his demise. The Board finds that there is not a reasonable possibility that a medical opinion would aid in substantiating the appellant's claim as the medical evidence points to a separate cause, as discussed below. A medical examination or opinion is not required. See DeLaRosa, 515 F.3d at 1322. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Service connection is warranted for disability resulting from disease or injury that was incurred or aggravated in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. To establish service connection for the cause of a veteran's death, the evidence must show that a disability incurred in or was aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a) (2012). 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. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). The VA will give due consideration to all pertinent medical and lay evidence in evaluating a claim for death benefits. Lay evidence may be competent and sufficient to establish a diagnosis of a condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson 92 F.3d 1372 (Fed. Cir. 2007)). III. Analysis The appellant is seeking service connection for the cause of the Veteran's death. For the reasons that follow, the Board concludes that service connection for the Veteran's cause of death is not warranted. The Veteran had active service from September 1969 to February 1972. The Veteran's death certificate reflects that he died in March 2006 and lists the cause of death as end stage liver disease. The interval between onset and death is listed as months. An autopsy was not performed. The certifying physician was Dr. R.K., M.D. The Veteran died at Henry Ford Hospital. At the time of the Veteran's death, the record reflects that he was service-connected for posttraumatic stress disorder (PTSD), evaluated as 100 percent disabling, type II diabetes mellitus, evaluated as 10 percent disabling, mild peripheral neuritis of the left lower extremity rated as 10 percent disabling, and mild peripheral neuritis of the right lower extremity, rated as 10 percent disabling. The Veteran was also receiving a total disability rating for compensation purposes based on individual unemployability (TDIU). In the initial claim, the appellant's representative stated that it was his opinion that it is as likely as not that the condition of the appellant's death was a result of diabetes mellitus. The representative noted that the death certificate showed death as a result of end stage liver disease. A March 2006 VA treatment record, dated five days prior to the Veteran's death, indicates the Veteran reported having had pain at his right upper abdomen for 1 day. The VA treatment record noted that the Veteran had multiple alcohol related problems and was drinking his regular amount of beer. The Veteran reported that he wanted to get pain mediation for the pain. The assessment was alcoholic cirrhosis. A March 2006 VA treatment record, dated four days prior to the Veteran's death, reflects that the Veteran had blood tests and was administered one pain pill before discharge. A May 2006 note from Dr. N.T. reflects that the Veteran had a blood test result for diabetes mellitus which was normal. The appellant submitted a February 2011 letter from Dr. R.K., the physician at Henry Ford Hospital who treated the Veteran immediately prior to his death and signed the Veteran's March 2006 death certificate. In the February 2011 letter, Dr. R.K. stated that he took care of the Veteran on the date of his death. Dr. R.K. stated that: His presentation to the hospital and his death were caused by an acute condition. His death certificate only listed the acute condition that caused his death. Any previous medical history or complications from long term medical problems were not and would not be reflected in a death certificate. All of his medical records are located at the Veterans Hospital where he had received the majority of his health care. At Henry Ford Hospital he presented with renal failure that caused acute metabolic acidosis. The acidosis caused severe arrhythmias and lead to a myocardial infarction. I was not his primary care doctor and only took care of him in his acute situation. An April 2005 VA examination report reflects that the Veteran had mild renal insufficiency, as likely as not related to hypertension and his service-connected diabetes mellitus. Thus, if the Veteran's cause of death was related to renal failure, there is evidence that it may have been related to the Veteran's service-connected diabetes mellitus. However, as noted above, the Veteran's treatment records from Henry Ford Hospital from March 2006 have not been associated with the claims file. Dr. R.K. appears to have provided contradicting opinions regarding the cause of the Veteran's death. As the certifying physician on the Veteran's death certificate, he stated that the Veteran's death was due to end stage liver disease. The February 2011 letter indicates the Veteran's cause of death was related to renal failure. The Veteran's March 2006 treatment records, which were requested by VA in August 2012, would clarify the conflicting statements from Dr. R.K., as noted in the August 2012 remand. As the appellant did not send a consent form for the records or copies of the letters, the Board finds the March 2006 death certificate to be more probative than the February 2011 letter. The March 2006 death certificate is more contemporaneous to the Veteran's death than the February 2011 letter, which was written five years later. The death certificate is also consistent with the March 2006 VA treatment record, dated five days prior to the Veteran's date of death, which indicated that the Veteran had pain due to alcoholic cirrhosis. In the February 2011 letter, Dr. R.K. stated that the Veteran's death certificate only listed the acute condition that caused his death. However, end stage liver disease is generally not an acute condition. Without the records from the Veteran's treatment in March 2006 at Henry Ford Hospital and as the last VA treatment record from March 2006, only a few days before his death, indicates that the Veteran was treated for alcoholic cirrhosis, the Board must put more probative weight on the March 2006 death certificate than the February 2011 letter. In a February 2011 statement, the appellant stated that the Veteran's doctor told her that the Veteran's kidneys shut down which caused a heart attack. She stated that the Veteran's kidneys were bad due to his diabetes mellitus. The appellant is competent to report symptoms capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical cause of the Veteran's death is not subject to lay observation. As a lay person, the appellant is not competent to report that the Veteran had a diagnosis of end stage liver disease or renal failure. Thus, the Board finds that the appellant is not competent to report what the Veteran's cause of death in this case. The appellant is competent to report what she was told by physicians. The Veteran's death certificate reflects that the cause of death was end stage liver disease. Thus, the appellant's assertion that the Veteran died of a heart attack due to kidney failure contradicts the death certificate. As discussed above, the Board finds the death certificate to be more probative than the February 2011 letter from Dr. R.K. As the appellant's statements contradict the death certificate and are inconsistent with the March 2006 VA treatment record indicating the Veteran had symptoms due to alcoholic cirrhosis, the Board finds her assertions to be less than credible. Thus, her assertion regarding the Veteran's cause of death lacks probative value. Accordingly, the Board finds that the Veteran's cause of death was end stage liver disease, as noted on his death certificate. There is no evidence of record linking the Veteran's end stage liver disease to his service-connected disabilities, including diabetes mellitus. Minor service-connected disabilities, particularly of a static nature or not involving a vital organ, are not held to have contributed to death primarily due to an unrelated disability. 38 C.F.R. § 3.312(c)(2). The Veteran's mild peripheral neuritis of the left and right lower extremities were rated at only 10 percent, indicating they were minor service-connected disabilities. The Veteran's diabetes mellitus, type II, was rated as only 10 percent disabling. The Veteran was service-connected for PTSD, rated as 100 percent disabling. However, there is no competent evidence of record linking the Veteran's diabetes mellitus or PTSD to his end stage liver disease. The evidence of record reflects that the cirrhosis was related to alcohol use. An April 2003 private treatment record from Wayne State University reflects that the Veteran had a history of cirrhosis secondary to severe alcohol abuse and hepatitis C. Thus, the Board finds that the Veteran's service-connected disabilities were not the principal or contributory cause of his death. The Board must now address whether the Veteran's fatal end stage liver disease was incurred in or aggravated by service, such that service connection would be warranted for the cause of death. The Veteran had active service from September 1969 to February 1972. The Veteran's service treatment records do not contain any complaints, findings, or diagnoses relating to end stage liver disease. The Veteran was diagnosed with infectious, anicteric hepatitis in February 1970. However, there is no indication the Veteran had hepatitis C at that time. The August 2003 private treatment record indicated the Veteran was known to have had hepatitis C for 5 to 6 years and he had been actively using heroin, exchanging needles. The Veteran's death certificate reflects that the onset of his end stage liver disease was months before his death. Additionally, there is no lay or medical evidence of record indicating the end stage liver disease had been present during the Veteran's period of active service or that it was etiologically related to the his service. Thus, the evidence does not establish service connection on a direct basis. In a July 2008 argument, the appellant's representative asserted that the Veteran had conditions related to Agent Orange, and more likely contributed to his demise, but the treating physician failed to recognize the condition. The representative stated that the surviving spouse tried to get the death certificate corrected to include diabetes mellitus. As the Veteran's diabetes mellitus was related to exposure to herbicides in Vietnam, it is not clear whether the appellant's representative is asserting that the Veteran's end stage liver disease was related to Agent Orange exposure directly. There is no evidence of record indicating a link between diabetes mellitus and liver disease. A veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a) (2012). If a veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Since the Veteran was stationed in Vietnam, he is presumed to have been exposed to herbicides. However, liver disease is not one of the presumptive service-connected disorders, and thus the appellant may not benefit from the presumption for herbicide exposure. See 38 C.F.R. § 3.309(e). Although presumptive service connection is not warranted, service connection may still be established by proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Accordingly, to establish service connection on the basis of herbicide exposure in Vietnam, the appellant would be required to present evidence establishing a nexus between the Veteran's end stage liver disease and herbicide exposure. As noted above, there is no medical or lay evidence of record linking the Veteran's end stage liver disease to his service, including his exposure to herbicides. Therefore, the Board finds there is no basis for direct or presumptive service connection due to herbicide exposure. In sum, a preponderance of the evidence of record fails to demonstrate that the Veteran's end stage liver disease was causally related to active service or his service-connected disabilities. Although the February 2011 letter from Dr. R.K. and the appellant's statements indicate that the Veteran's death was related to renal failure, in the absence of records of the Veteran's terminal treatment at the Henry Ford Hospital, the Board finds the death certificate to be more probative. Thus, the Board concludes that the Veteran's military service and service-connected disabilities did not cause or contribute to his death. Accordingly, the appellant's claim of entitlement to service connection for the cause of the Veteran's death must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs