Citation Nr: 1317477 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-17 482A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945, including combat service in World War II, and his decorations include two Bronze Stars and the Purple Heart Medal. He died in September 2004. The appellant is the Veteran's widow. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2005 decision that denied service connection for the cause of the Veteran's death. The appellant timely appealed. In July 2010, the appellant testified during a hearing before a former Veterans Law Judge at the RO. In February 2011, the Board requested an advisory medical opinion from a medical expert. In August 2011, the Board furnished a copy of the opinion to the appellant and her representative, affording a 60-day period for response. In August 2011, the Board also duly notified the appellant that the Board no longer employed the Veterans Law Judge that conducted the July 2010 Board hearing and that she had the right to another Board hearing. In September 2011, the appellant indicated that she desired an additional hearing. The matter was then remanded in December 2011 to afford the appellant an opportunity for an additional hearing. Soon thereafter, the appellant withdrew her prior request for a Board hearing, in writing. In September 2012 and in January 2013, the Board again requested advisory medical opinions from medical experts. In March 2013, the Board furnished copies of the opinions to the appellant and her representative, affording a 60-day period for response. A timely response, including waiver of initial consideration of additional evidence by the RO, was received from the appellant in May 2013. 38 C.F.R. § 20.903. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The following issues of entitlement, for accrued benefit purposes, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ): (1) increased evaluation for residuals of a shell fragment wound of the left knee; (2) whether new and material evidence was received to reopen the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for an eye disability; (3) whether new and material evidence was received to reopen the claim of service connection for residuals of a fractured right humerus; (4) whether new and material evidence was received to reopen the claim of service connection for a low back disability; (5) compensation under 38 U.S.C.A. § 1151 for residuals of a collapsed lung; (6) service connection for osteoporosis; (7) an effective date earlier than November 27, 1996, for the grant of a total rating based on individual unemployability (TDIU); and (8) special monthly compensation based on aid and attendance/housebound. The first seven issues were the subject of a Board remand of December 2003 and a supplemental statement of the case dated in August 2004. These issues were thus not finally adjudicated at the time of the Veteran's death and should be adjudicated on an accrued benefits basis. See Taylor v. Nicholson, 21 Vet. App. 126 (2007). Likewise, the special monthly compensation issue was denied by the RO in a rating decision dated in August 2004. Although the Veteran did not file a notice of disagreement, the claim remained pending at the time of the Veteran's death as the one-year period to appeal the decision had not expired at the time of the Veteran's death. Id. The Board does not have jurisdiction over these issues as they have not yet been adjudicated, thus, they are referred to the AOJ for appropriate action. 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 September 2004. The immediate cause of death was chronic obstructive pulmonary disease. Other significant condition contributing to death, but not resulting in the underlying cause, was strokes. 2. At the time of the Veteran's death, service connection was in effect for post-traumatic stress disorder (PTSD), rated as 70 percent disabling; and for residuals of shell fragment wounds of the left knee, rated as 20 percent disabling. 3. Resolving all doubt in favor of the appellant, service-connected disability contributed substantially or materially to the Veteran's death. CONCLUSION OF LAW A disability incurred in service or a disability that is otherwise related to service or is secondary to a service-connected disability caused or contributed substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (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 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board concludes that the VCAA does not preclude the Board from adjudicating the appellant's claim. This is so because the Board is taking action favorable by granting service connection for the cause of the Veteran's death. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection for Cause of the Veteran's Death Service connection may be granted for disability resulting from disease or injury 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 or aggravated in service either caused or contributed substantially or materially to cause death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, 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. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. 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. 38 C.F.R. § 3.312(c) (2012). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. See 38 C.F.R. § 3.312(c)(4) (2012). The Veteran died in September 2004. His death certificate shows that the immediate cause of death was end stage chronic obstructive pulmonary disease; and that the interval between onset and death was years. Other significant condition contributing to death, but not resulting in the underlying cause, was strokes. An autopsy was not performed. At the time of the Veteran's death, service connection was in effect for PTSD, rated as 70 percent disabling; and for residuals of shell fragment wounds of the left knee, rated as 20 percent disabling. Service treatment records contain no complaints, findings, or diagnoses of any chronic obstructive pulmonary disease. VA examination in August 1975 reflects that the Veteran was treated in service for moderate anxiety neurosis, combat-induced; and at the time he was shaky and tremulous. He reported having nightmares. Private treatment records, dated in February 1976, show that the Veteran smoked about a pack of cigarettes a day. The diagnosis at that time was anxiety neurosis; and the physician opined that the Veteran had a significantly high level of anxiety, and extreme nervousness and irritability which, at times, caused both hands to shake. Moderately severe airway obstructive disease, compatible with chronic bronchitis, was also noted at the time; and underlying emphysema could not be ruled out. VA examination in September 1977 reflects that the Veteran smoked about a pack of cigarettes a day, and that he started smoking at 5 years old [sic]. In October 1981, the Veteran reportedly smoked about 20 cigarettes a day, but only smoked them halfway. A VA examiner at the time diagnosed PTSD associated with anxiety reaction. Records show that the Veteran continued to smoke in November 1995, and he was diagnosed with severe chronic obstructive pulmonary disease. He reported having breathing problems for years. Records show that the Veteran did not stop smoking in July 1996. VA records show that the Veteran was hospitalized in June 1998 due to shortness of breath, and a long history of tobacco smoking and was on numerous medications for chronic obstructive pulmonary disease. The diagnosis then was pneumothorax secondary to recent rib fractures and chronic obstructive pulmonary disease. The Veteran underwent an upper left lobe lobectomy at that time. Records show that the Veteran had a 65-pack-per-year tobacco history, and that he had quit smoking two years earlier. He was diagnosed with chronic obstructive pulmonary disease and emphysema, secondary to longstanding tobacco use. In January 1999, the Veteran reported his medical history as being very nervous most of the time; and when confronted with a stressful situation, he became irritable and tremulous. In April 1999, the appellant also stated that the Veteran's PTSD had worsened and new tests revealed he had a stroke. Severe emphysema was noted in February 2001, and the Veteran underwent a right carotid endarterectomy procedure. In February 2002, a VA treating physician indicated that the Veteran had become increasingly isolated, depressed, and hypervigilant, which severely limited his ability to engage in and enjoy life. The Veteran was diagnosed with end stage lung disease in February 2004, and he expired in September 2004. In her application for dependency and indemnity compensation (DIC), the appellant contended that the Veteran had been an excessive chain smoker; and that his chronic obstructive pulmonary disease, which caused his death, was very much in line with his nervousness and excessive manifestations of his service-connected PTSD. Subsequently, in December 2004, a medical specialist in neurological assessments and in traumatic stress, noted that the Veteran became a chain smoker; and the appellant's reporting that when the Veteran was very anxious and stressed he smoked nonstop. The medical specialist reasoned that the Veteran's cigarette smoking was part of his method of coping with his stress; and opined that the Veteran's chronic obstructive pulmonary disease likewise had causation from the PTSD. In May 2005, the medical specialist also noted that chronic obstructive pulmonary disease and heart disease cannot be separated as a cause of death because they were so intimately intertwined. Likewise, in June 2005, the appellant submitted copies of her handwriting notes dating from April 1979, when she first married the Veteran. Her notes from April 1979 indicate that she was happy with her new married life with the Veteran; and that she did not notice just how much of a chain smoker and beer drinker the Veteran was. Her notes also indicate that the Veteran smoked too much, and that the Veteran said it relieved his stress together with his beer. In April 2006, a VA examiner opined that there was no specific evidence indicating that the cause of the Veteran's death was PTSD. In March 2009, one of the Veteran's children recalled being age 9 in 1957; and that his father at the time smoked one cigarette after another. In July 2010, the appellant testified that the Veteran clung to smoking as an outlet to his trembling, and became a real wreck with smoking post-service. In August 2010, one of the Veteran's brothers reported that, after returning from World War II, the Veteran became an excessive chain smoker as an outlet and means of coping with the atrocities he saw in one of the worst battles of the war. Additional letters from family members confirm that the Veteran had been an excessive chain smoker. In July 2010, the medical specialist in neurological assessments and in traumatic stress again noted that VA physicians were well aware that cigarette abuse, drug abuse, and alcohol abuse occur secondary to the severe and horrific stressors of war; and that the primary cause of the Veteran's death, whether chronic obstructive pulmonary disease or coronary artery disease, was secondary to his PTSD. In support of the opinion, the medical specialist reasoned that it was easily anticipated by physicians that lifestyle addictions occur from the infliction of heavy combat. In May 2011, VA received a medical expert opinion from a VA chief psychiatrist at the Bath VA Medical Center (VAMC). The chief psychiatrist reviewed the Veteran's medical records, and reviewed medical literature regarding the connection between PTSD and smoking. Based on review of the Veteran's medical records and information provided by family members and current research, the chief psychiatrist opined that a "causal" relationship between PTSD and smoking cannot be definitively indicated as literature remains mixed in the description of the relationship. The chief psychiatrist added that, while "comorbidity" is accepted, specific causality is not indicated due to the possible influence of other factors; and that "the use of tobacco and reluctance to quit tobacco by individuals with PTSD could have various explanations." In September 2011, the appellant responded that the effects of war were different for everybody; and that the medical literature cited by the medical expert was a general response, and not specific to the Veteran, who had smoked excessively as an outlet for pains suffered during the war and affected his lungs and heart, towards ending his life. In October 2012, VA received a medical expert opinion from a VA psychiatrist at the White River Junction VAMC. The psychiatrist indicated that substance use such as smoking could be a method for coping with the distress and symptoms of PTSD was certainly a plausible claim; and that the appellant's statements and those of other family members as to their observations regarding the Veteran's smoking and distress, are supportive of a finding that his smoking was such a coping mechanism. The psychiatrist opined that, based on the evidence of record and relevant medical literature, it is at least as likely as not that PTSD contributed to the Veteran's cigarette smoking post-service. The psychiatrist added that the record does not demonstrate that the Veteran smoked more after the onset of PTSD, but showed that he did smoke a great deal, which was not quantified. The Veteran also was able to quit smoking, although there was no evidence of prior attempts to quit smoking that either were prevented or complicated by PTSD. Without some quantifiable effect of PTSD on smoking, the psychiatrist could not find it more likely than not that PTSD contributed to the Veteran's cigarette smoking post-service. In February 2013, VA received a medical expert opinion from a VA pulmonologist at the White River Junction VAMC. The pulmonologist indicated that the most important risk factor for chronic obstructive pulmonary disease in the United States was cigarette smoking. The Veteran was a heavy smoker for most of his life. The pulmonologist opined that the Veteran's heavy use of tobacco products was the main cause of his chronic obstructive pulmonary disease; and that the Veteran would not have suffered from chronic obstructive pulmonary disease but for the use of tobacco products. The Board has given consideration to both the positive and negative evidence of record, including the lay evidence. Specifically, the May 2011 chief psychiatrist could not provide a definitive link between PTSD and heavy use of tobacco products, other than "comorbidity." On the other hand, the October 2012 psychiatrist found that smoking could be a method of coping with the distress and symptoms of PTSD. However, without quantifiable data as to prior attempts to quit smoking that failed because of distress or symptoms of PTSD, the October 2012 psychiatrist could not find it "more likely than not" that PTSD contributed to the Veteran's cigarette smoking post-service. Given the lay statements that the Veteran's smoking was such a coping mechanism for his PTSD, the October 2012 psychiatrist opined that it was "at least as likely as not" that PTSD contributed to the Veteran's cigarette smoking post-service. The February 2013 pulmonologist also indicated that cigarette smoking was the main cause of the chronic obstructive pulmonary disease. The Board first notes that it finds competent and credible the lay statements from the appellant and the Veteran's brother to the effect that the Veteran became a chain smoker as an outlet for coping with the atrocities he had seen. The October 2012 medical opinion then states that, based on these lay statements, PTSD at least as likely as not contributed to cause cigarette smoking after service. This opinion is entitled to probative weight as it is based on a review of the record and provides an adequate rationale. Thus tobacco use as secondary to PTSD is established pursuant to 38 C.F.R. § 3.310 (2012). The pulmonologist's opinion that cigarette smoking was the main cause of chronic obstructive pulmonary disease is also entitled to probative weight as it is based on a review of the record and as a rationale was provided. Thus, the criteria for secondary service connection for chronic obstructive pulmonary disease are also met pursuant to 38 C.F.R. § 3.310 (2012). The Board cannot find any basis on which to assign the negative opinions of record greater weight than the positive opinions. Under these circumstances, the Board finds the overall evidence to be at least in relative equipoise on the question of whether a causal connection has been demonstrated between the service-connected PTSD and the Veteran's excessive chain smoking that resulted in chronic obstructive pulmonary disease and caused the Veteran's death. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Therefore, resolving all doubt in favor of the appellant, service connection for the cause of the Veteran's death is established. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs