Citation Nr: 1317860 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-32 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION 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 & Supp. 2012). The Veteran served on active duty from March 1941 to October 1945. He died in November 2007. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appellant and her daughter, S.R., testified before the undersigned Acting Veterans Law Judge at an August 2010 hearing conducted at the RO. A transcript of the hearing is of record. The case was remanded for additional development in October 2010, July 2011, September 2012, and December 2012. The case has now been returned to the Board for further appellate consideration. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. The record reflects that the Veteran died in November 2007. According to the death certificate, the immediate cause of death was cerebrovascular accident, due to or as a consequence of arteriosclerotic cerebrovascular, due to or as a consequence of advanced age/senility, due to or as a consequence of severe degenerative arthritis. 2. At the time of the Veteran's death, service connection was not in effect for any service-connected disorder. 3. Cerebrovascular accident, arteriosclerotic heart disease, and degenerative arthritis were first shown many years after service and are unrelated to any events in service. 4. The disease processes leading to the Veteran's death are not attributable to his active military service and were not caused or made worse by any service-connected disability. CONCLUSION OF LAW The Veteran's death was not caused by, or substantially or materially contributed to by, an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1312, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a claim for dependency and indemnity compensation (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). The RO provided VCAA notice letters to the appellant in June 2009, January 2011, and February 2011. The letters notified the appellant of what information and evidence must be submitted to substantiate a claim for service connection for the cause of the Veteran's death, as well as what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA. The appellant was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of her claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The June 2009 letter met the requirements as described in Hupp, supra. The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant was provided with notice of the type of evidence necessary to establish effective dates in the June 2009 letter. The claim was readjudicated in Supplemental Statements of the Case (SSOCs) in April 2011, April 2012, October 2012, and March 2013, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board finds that all relevant evidence has been obtained with regard to the appellant's claim, and the duty to assist requirements has been satisfied. In March 2006, the National Personnel Records Center (NPRC) noted that the Veteran's service treatment records (STRs) were unavailable due to fire-related loss and that there were no Surgeon General Office records showing treatment for any medical problems. Considering the aforementioned, the Board concludes that the VA's actions constitute a "reasonably exhaustive search" of all available options. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). VA has satisfied the duty to assist the appellant with regard to obtaining his STRs through its actions. See also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). Accordingly, there is no basis for any further pursuit of the STRs. All identified and available VA, private, and employment treatment records have also been obtained. In January 2012, the appellant indicated that she had no additional information or evidence to submit in support of her claim. In February 2013, the Veteran's claims file was reviewed by a VA physician for opinion as to the cause of the Veteran's death. The February 2013 VA medical opinion was obtained to determine if the Veteran's death, including his cerebrovascular accident, arteriosclerotic cerebrovascular disease, or severe degenerative arthritis, was etiologically related to his active service, and, if so, whether such caused or contributed to the Veteran's death, or had a material influence on accelerating it. As explained below, the Board finds the February 2013 medical opinion to be adequate, competent medical evidence as to the relationship between the cause of the Veteran's death and his military service, or service-connected disability. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the appellant is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, the appellant was afforded the opportunity to testify before a Decision Review Officer (DRO) in April 2009 as well as before the Board in August 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the DRO or VLJ who chairs 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. Here, during the hearings, the DRO and the undersigned essentially elicited testimony necessary to determine the nature of the appellant's claim regarding the cause of the Veteran's death. In addition, the DRO and the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through her testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate her claims for benefits. As such, the Board finds that, consistent with Bryant, the DRO and the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Cause of Death - Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as heart disease or arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a) (2012). A principal cause of death is one which, singularly 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 is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c) (2012). Service-connected disabilities 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 was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3) (2012). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co- existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4) (2012). Analysis Initially, it is noted that where STRs are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). As reflected on his death certificate, the Veteran died in November 2007 due to cerebrovascular accident, due to or as a consequence of arteriosclerotic cerebrovascular, due to or as a consequence of advanced age/senility, due to or as a consequence of severe degenerative arthritis. At the time of the Veteran's death, service connection was not in effect for any disability. The appellant contends that the Veteran's death was due to disability of service origin. Specifically, she asserts that during active duty service, the Veteran developed a high fever of 106 degrees, and that he was treated at a hospital in Louisiana. At the August 2010 hearing, she stated that he continued to have problems with his temperature and fever after service discharge and that he developed rheumatoid arthritis. The appellant's daughter testified that the Veteran frequently told her that during combat service in Saipan, he sometimes had to sleep in a foxhole filled with water. The appellant noted that the Veteran had complained of pain in his knees and legs after service discharge. After a full review of the record, including the medical evidence, as well as statements by the appellant and those made on her behalf, the Board finds that, notwithstanding the appellant's assertions, service connection for the cause of the Veteran's death must be denied. The Veteran's STRs are essentially unavailable and were reportedly destroyed in the 1973 fire at the NPRC. A separation record confirms that the Veteran served in the Bougainville, Tinian, and Kume Shima campaigns during World War II. He served as a combat infantryman and squad leader. He is a combat veteran for VA compensation purposes. See 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.304 (2012). Following the Veteran's discharge from service, private records show treatment for benign prostatic hypertrophy in the late 1970s. Private records dated in 2001 reflect treatment for osteoarthritis. Subsequently dated private records (prior to his death in 2007) refer to treatment for hypertension, arteriosclerotic heart disease, and degenerative arthritis. The Board notes a June 2009 statement by the Veteran's physician which indicates that the Veteran was under his care since 1983 for treatment of hypertension and severe degenerative arthritis of the lumbosacral spine, hips, and knee joints since 2000. The physician also stated that the Veteran "has been disabled since his wartime service," though no support for this statement was provided. In August 2011, the Veteran's claims file was reviewed by a VA physician for an opinion on the cause of the Veteran's death. Review of the record reflects that the Board found this examination report inadequate in that the examiner did not address whether the Veteran's degenerative arthritis, (which was noted to be a contributory cause of death on the death certificate), was related to his active military service, to include his complaints of high fever and joint pains. Accordingly, the 2011 VA opinion was deemed inadequate. Additional VA opinion was requested. The claims file was forwarded to a VA physician and the ensuing report is dated in February 2013. The examiner indicated that he reviewed the claims file, electronic medical records, and the appellant's statements. In the examiner's opinion, it was less likely than not that the claimed condition was incurred in or caused by active service. For rationale, the VA examiner stated that the referred to episodes of high fevers and joints pains in the documents provided were not etiologically related to the causes of the Veteran's death. It was further explained that in a young healthy veteran, a viral illness could cause high fevers and transitory arthritis. Evidence dated in 2004 shows X-ray evidence of severe arthritis of the knee. The Veteran was 85 years old at that time. The examiner further noted that degenerative arthritis is not uncommon at that age from "wear and tear" on a large weight bearing joint. The VA examiner also noted that there were no indications that the Veteran died from anything "remotely" close to arthritis. Principally, he died from advanced atherosclerotic heart disease. While he did have a history of hypertension which is the etiology for the development of the atherosclerotic disease and cerebrovascular accident, there is no evidence that the origins of this were related to service. In summary, the VA examiner noted that the Veteran died at age 88. The examiner found his death had no etiological linkage or origin to military service. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part, that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304. In other words, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998). In short, a medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). With respect to private examiner's statement that the Veteran had been under his care since 1983 for hypertension and arthritis of multiple joints and disabled since wartime service, the Board assigns little probative value in that no association with the Veteran's death in 2007 is made and no explanation is provided as to the basis for the assertion that the Veteran had been disabled since service. The Board assigns a higher probative value to the February 2013 VA opinion. As noted above, the examiner, after review of the claims file, specifically addressed whether the Veteran's death was caused by a disorder of service origin. It was concluded that the condition which caused the Veteran's death did not become manifested until many years after military service and were unrelated thereto. Rationale, as summarized above, was provided and included that the Veteran's primary cause of death was heart disease which was first manifested many, many years after active service. The examiner is shown to have adequately considered the appellant's claims. Thus, the persuasive medical opinion of record does not support the claim. The Board has also considered the statements of the appellant and her daughter to the extent that they contend that a disability of service origin, to include cerebrovascular accident, arteriosclerotic heart disease, or degenerative arthritis, caused or contributed to the Veteran's death. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In this case, the statements of the appellant and her daughter to the effect that the Veteran's death resulted from a condition of service origin which contributed substantially or materially the cause of his death are such opinions which have been found by the Court to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board finds that matters associated with an etiology opinion based upon statements concerning a remote history of fever and joint pain require medical expertise. Thus, the appellant and her daughter are not competent to offer medical opinions as to the relationship between the Veteran's service and the cause of his death. In any event, the VA examiner's February 2013 opinion, which provided adequate reasoning for the conclusion that specifically addressed the arguments of the appellant, is entitled to more probative weight than their more general lay assertions. See Nieves-Rodriguez, supra. Under these circumstances, the Board must conclude that the record does not support a finding that a disability of service origin either caused or contributed substantially or materially in producing the Veteran's death, and that, therefore, the claim for service connection for the cause of the Veteran's death must be denied. In reaching the decision to deny the claim, as the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs