Citation Nr: 1317809 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-35 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico 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 K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from July 1952 to March 1955. The Veteran died in March 2005. The appellant seeks surviving spouse benefits. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board in September 2011, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran died in March 2005 of sudden cardiac death due to end stage renal disease, which was due to his hypertension. 2. At the time of the Veteran's death, service connection was in effect for schizophrenia. 3. Neither end stage renal disease nor hypertension was present until more than one year following the Veteran's active service, and neither disorder was etiologically related to the Veteran's active service or his service-connected schizophrenia. CONCLUSION OF LAW A disability incurred in or aggravated by active service did not cause the Veteran's death or substantially and materially contribute to the Veteran's cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). When VA receives a detailed claim for Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1310, it must provide a detailed notice to the claimant. Specifically, the notice must include a statement of the conditions, if any, for which a veteran was service connected at the time of death; an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. 38 U.S.C. § 5103(a) (West 2002); Hupp v. Nicholson, 21 Vet. App. 342 (2007). The record shows that the appellant was mailed a letter in March 2007 advising her of what evidence was needed to substantiate her claim of entitlement to DIC and of the evidence that she should submit and that which VA would obtain on her behalf. In the October 2007 statement of the case, the appellant was provided the additional notice required for DIC claims. In a December 2007 letter, the appellant was provided appropriate notice with respect to the effective date element of her claim. Although the appellant was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development, the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds the appellant has been afforded adequate assistance in response to her claim. The Veteran's service medical records are on file, VA treatment notes have been obtained, and the Veteran's death certificate is on file. The Board notes that the appellant has asserted that there are Social Security Administration (SSA) records and private treatment records that may help substantiate her claim. In the September 2011 remand, the Board directed that efforts to obtain the identified records should be made. In October 2011, a request for SSA records was made. In an October 2011 response, SSA informed VA that any SSA records pertaining to the Veteran had been destroyed. The appellant was notified of the unavailability of the SSA records in an August 2012 letter. In a September 2012 memorandum to the file, it was found that after all appropriate development actions had been taken, the Veteran's SSA records remained unavailable for review. In an effort to obtain the private treatment records identified by the appellant, VA sent letters to the identified treatment providers. A response was received from Dr. V.G.P. in which he indicated that there were no records available. There was no response to the records request received from any of the other identified private treatment providers. The appellant was made aware of both the unavailability of records from Dr. V.G.P. and the lack of response from the other treatment providers identified in February 2012 and May 2012 letters. Therefore, the Board finds that the development conducted at the direction of the September 2011 Board remand is adequate and there is no bar to proceeding with a final decision at this time. DIC benefits are payable to the surviving spouse of a Veteran if the Veteran died from service-connected disability. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2012). Service connection for the cause of a Veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran. 38 C.F.R. § 3.312(a) (2012). A service-connected disability will be considered as the principal, or primary, cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). A contributory cause of death inherently is one not related to the principal cause of death. In determining whether service-connected disability contributed to death, it must be shown that it contributed substantially or materially; 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2012); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In general, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service- connected disease or injuries of any rating, but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The appellant has asserted that the Veteran's sudden cardiac death and hypertension were worsened by his service-connected schizophrenia. Specifically, she has asserted that the anxiety caused by his service-connected schizophrenia made his hypertension and resultant renal disease worse. She has also asserted that the medication the Veteran took for his schizophrenia contributed to his renal disease. According to the death certificate, the Veteran died of sudden cardiac death as a result of end stage renal disease. At the time of his death, the Veteran was service-connected for schizophrenia, which was rated 100 percent disabling. A review of the service medical records is negative for treatment for or a diagnosis of hypertension or renal disease while the Veteran was in active service. At the time of his March 1955 separation examination, the Veteran's blood pressure was noted to be 116/78 and all his body systems were clinically normal upon examination. Additionally, there is no indication from the record that the Veteran was diagnosed with hypertension or renal disease within one year of his separation from active service. A review of the post-service medical evidence shows that in March 2005, the Veteran was seen at the VA Medical Center emergency department for complaints of abdominal pain and diarrhea. The Veteran was admitted at that time and underwent a battery of diagnostic tests. The Veteran was afforded a computed tomography (CT) scan of his abdomen, which revealed colitis and an 8.3 centimeter abdominal aortic aneurysm. It was determined that the Veteran was not a surgical candidate due to the colitis process. It was also noted that the Veteran had presented with signs of congestive heart failure. During his hospitalization, the Veteran was found unresponsive and pulseless by the nursing staff. Advanced cardiac life support measures were started. The Veteran was intubated and an electrocardiogram (EKG) revealed anteroseptal segment elevation consistent with acute myocardial infarction. The Veteran was placed on a ventilator and was noted to be critically ill with a poor prognosis. The Veteran was later examined and the physical examination was compatible with clinical brain death. The Veteran was found unresponsive and without blood pressures or a palpable pulse and was declared dead. There is no indication from the medical evidence of record that the Veteran's sudden cardiac death was related to his active service, his service-connected schizophrenia, or the medication he took for treatment of his service-connected schizophrenia. In October 2012, the Veteran's claims file was sent to the VA Medical Center for review and a medical opinion. At that time, the examiner conducted a thorough review of the claims file and opined that the Veteran's cardiac death was not caused by nor aggravated by his service-connected schizophrenia or the medication used to treat his schizophrenia. The examiner noted that extensive laboratory work-up at the time of the Veteran's final hospitalization revealed positive troponins and cardiac enzymes, confirming myocardial infarction. The examiner noted that an abdominal CT scan at that time had confirmed colitis and saccular infrarenal abdominal aortic aneurysm and the arterial blood gases and laboratories were suggestive of hypovolemic shock and sepsis. The examiner noted that those conditions, in addition to the Veteran's co-morbidity of end stage renal failure disease, contributed to adequate substrate for the complicated clinical picture. The examiner further noted that from the claims file and records reviewed, the sudden cardiac death was caused by massive myocardial infarction secondary to hypovolemic shock and sepsis, most likely due to ischemic colitis which was likely related to decreased mesenteric blood flow caused by an abdominal aortic aneurysm which was not caused by, aggravated by, or related to the Veteran's schizophrenia or medication for schizophrenia. The examiner also opined that the hypertensive end stage renal disease that caused or contributed to the Veteran's death was not caused or aggravated by the Veteran's service-connected schizophrenia or the medications he took to treat his schizophrenia. The examiner noted that from the claims file and records reviewed, the Veteran was suffering from hypertensive renal disease which was caused by nephrosclerosis which was a disorder associated with chronic hypertension. The examiner noted that hypertensive nephrosclerosis is characterized histologically by vascular, glomuler, and tubulointerstitial involvement and the medical literature did not support a direct etiologic relation between having schizophrenia and further development of hypertensive end stage renal disease. Additionally, the examiner noted that the medications taken to treat schizophrenia had not been directly related to further development of hypertensive end stage renal disease. Further, the examiner noted that the claims file and medical records were silent regarding any relation between the Veteran's service-connected schizophrenia, or the medications for schizophrenia, with the development of his hypertensive end stage renal disease. Lastly, the examiner opined that the Veteran's arterial hypertension was not caused or aggravated by his service-connected schizophrenia or the medication used to treat schizophrenia. The examiner noted that hypertension is a chronic disease with a partially explained etiology in which genetic factors play an important role. The examiner noted that the medical literature did not support a direct etiologic relation between having schizophrenia and further development of hypertension. Further, the examiner noted that the medications used for treatment of schizophrenia have not been directly related to further development of hypertension. The examiner also noted that there was no evidence in the claims file or medical records regarding any relation between the Veteran's service-connected schizophrenia or the medications for schizophrenia, and the further development of his hypertension. While the appellant may sincerely believe that the Veteran's sudden cardiac death and end stage renal disease were substantially and materially contributed to by his service-connected schizophrenia or the medication he took for schizophrenia, and while lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's service-connected schizophrenia substantially and materially contributed to his cause of death falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, there is no competent medical evidence of record that the Veteran's service-connected schizophrenia, or the medication he took for treatment of schizophrenia, caused or contributed to his death. Additionally, there is no competent medical evidence of record that the Veteran's hypertension and resulting end stage renal disease were related to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to service connection for the cause of the Veteran's death is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs