Citation Nr: 1318486 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-16 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from August 1944 to January 1946. He died in March 2006. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned Veterans Law Judge at a Travel Board Hearing in April 2009. A transcript of that hearing is of record. In February 2011, the Board, requested an independent medical opinion from a specialist regarding the cause of the Veteran's death. In a July 2011 Board decision, the claim for service connection for the cause of death was denied. The appellant appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a November 2012 memorandum decision, the Court vacated the July 2011 decision and remanded the matter for readjudication consistent with the decision. FINDINGS OF FACT 1. The Veteran died in March 2006. The death certificate lists the immediate cause of death as bilateral pneumonia-mixed bacterial. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. 2. At the time of the Veteran's death, service connection was in effect for lumbosacral degenerative joint and disc disease, evaluated as 60 percent disabling; and for malaria which was rated as noncompensable. From January 18, 2001 through the date of his death, the Veteran was assigned a total disability evaluation based on individual unemployability. 3. Bilateral pneumonia-mixed bacterial was not manifest during active service, and neither renal nor cardiovascular disease were manifest to a compensable degree within one year of separation from active duty and are not otherwise attributable to active service. 4. Bilateral pneumonia-mixed bacterial, dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were not caused or worsened by a service-connected disability. CONCLUSION OF LAW The Veteran's death was not caused by a disease or injury incurred in or aggravated by service, nor did any such disease or injury contribute substantially or materially to his death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that because the RO's adjudication of a claim for dependency and indemnity compensation benefits hinges first on whether a veteran was service-connected for any condition during his lifetime, the notice in such a claim must include, inter alia, a statement of the conditions (if any) for which a veteran was service-connected at the time of his death. Id. at 352-53. In this case, while the appellant was not notified of the conditions for which the Veteran was service connected in the April 2006 notice letter, she was provided with this information in the June 2006 rating decision and a supplemental statement of the case was issued thereafter in January 2009. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Hence, the case is ready for adjudication. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as cardiovascular renal disease, including hypertension, may be service connected if incurred or aggravated by service or manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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 to the cause of death. For a service-connected disability to constitute a contributory cause of death, it must be shown that it contributed substantially or materially; 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. The debilitating effects of a service- connected disability must have made the decedent materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). At the time of the Veteran's death he was service connected for lumbar degenerative joint and disc disease, evaluated as 60 percent disabling; and for residuals of malaria, evaluated as noncompensable. He also had been in receipt of a total disability evaluation based on individual unemployability due to service connected disorders since January 18, 2001. Service treatment records reveal no complaints, findings or diagnoses of a cardiac or lung disorder. The separation examination revealed normal findings for the cardiovascular system and lungs. When examined in April 1949, the cardiovascular and respiratory systems were normal. In a January 2001 letter from Dr. D.S., it was stated that the Veteran had diabetes mellitus, chronic obstructive pulmonary disease, hypertension, degenerative arthritis, diverticulosis, dilated cardiomyopathy, atherosclerosis, and declining vision and hearing. Dr. D.S. stated that sometimes these problems exacerbated the Veteran's service-connected back disability but at times his back disabilities interfered with his other problems. A March 2001 letter from Dr. R.W. stated that he was at that time giving the Veteran Celebrex for generalized arthritis and back pain. A September 2003 letter from Dr. L.W. noted that the Veteran had hypertension, atherosclerotic heart disease and congestive heart failure. It was stated that the Veteran was treated with nonsteroidal anti-inflammatory drugs for his service connected back disability. Dr. L.W. opined that the Veteran's congestive heart failure could have been worsened, but not caused by, the use on non-steroidal anti-inflammatory drugs. In September 2003, Dr. J.S. stated that he disagreed with Dr. L.W.'s findings as Dr. L.W. did not touch the Veteran in making his determination. In February 2005, Dr. J.S. opined that there was a temporal relationship between the Veteran's use of Celebrex and Percocet and his elevated pressure, diastolic dysfunction and congestive heart failure. In a July 2005 statement Dr. J.S. stated that the Veteran had suffered from irreparable harm from Celebrex and Percocet. In February 2006, the Veteran was admitted to Knox Community Hospital with a primary diagnosis of pneumonitis due to inhalation of food or vomitus. He was discharged two days later but was again admitted a few days thereafter when he became unresponsive. He was transported to the emergency department and found to be hypotensive. The Veteran died in the hospital in early March 2006. The terminal discharge summary reflects a clinical impression of cardiogenic shock secondary to a myocardial infarction in a patient with chronic obstructive pulmonary disease, pneumoconiosis, a history of pacemaker placement, and senile dementia of the Alzheimer's type. The Veteran's death certificate stated that the immediate cause of death was bilateral pneumonia of a mixed bacterial type. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. An autopsy was performed in 2006 and the pathologist provided pathological diagnoses which included sepsis, organizing pneumonia, hypertensive cardiovascular disease and atherosclerotic cardiovascular disease. In a June 2006 letter from Dr. J.S., it was noted that he was the sole medical physician for the Veteran up to the point of his death. Dr. J.S. stated that the Veteran's increasing debility and weight loss did not allow him to maintain himself and that, as he was bedridden and had a reducing immunity, the Veteran developed several pneumonias on top of his advanced black lung disease. It was noted that the Veteran had had previous idiosyncratic drug reactions to hydrocodone which contributed greatly to debility and then to his bedridden existence for years with dilated cardiomyopathy. The Veteran had taken Celebrex for years before Dr. J.S. treated him. Dr. J.S. opined that Celebrex caused dilated cardiomyopathy in the heart. In April 2009, the appellant testified before the undersigned Veterans Law Judge. During the hearing, the appellant stated that due to his service-connected arthritis, the Veteran became so debilitated towards the end of his life that she had to take care of all of his needs. She offered her belief that the medications given to him from the time of his injury to the day of his death destroyed his health which contributed to his pneumonia. She stated that the Veteran had been on Percocet, Oxycodone and Celebrex for arthritic pain. She further asserted that despite the fact that the death certificate listed pneumonia as his cause of death, contributory effects such as a heart condition contributed to his death and that his arthritis medications led to the Veteran's heart condition. In February 2011, the Board, finding that additional information was necessary before a determination on the claim could be made, requested an independent medical opinion from a specialist regarding the cause of the Veteran's death. The independent medical examiner-who is a board certified cardiologist, an associate professor of medicine, and a director of a cardiovascular program at a heart institute-submitted his findings in April 2011. In his report, the independent physician noted that he had reviewed the Veteran's eight volumes of records and he cited medical literature in support of his findings. He noted that records dating into the mid-1980s demonstrated back pain, and that the Veteran was treated with multiple non-steroid anti-inflammatories, Celebrex and narcotics. The examiner noted that the Veteran suffered from multiple comorbid conditions to include diabetes, residuals of a cerebrovascular accident, hypertension, chronic obstructive pulmonary disease, black lung, and Alzheimer's. The examiner noted that congestive heart failure was shown in the record as first appearing in 1999. The examiner noted that the Veteran was admitted to the hospital on February 24, 2006 for a urinary tract infection with sepsis and pneumonia. He was treated for two days, discharged to home, but was brought back to the hospital after becoming unresponsive on February 27, 2006. The examiner stated that, upon admission, the Veteran's troponins (an enzyme found in the heart and muscle cells) rose. The Veteran's treating doctor, Dr. B.M., attributed the Veteran's clinical scenario to a myocardial infarction causing cardiogenic shock. The consulting cardiologist, Dr. R., was of the opinion that the Veteran's elevated troponin was caused by low blood pressure and low oxygen levels in the blood that resulted from sepsis. The independent medical examiner noted that this would result in poor oxygen delivery to the heart. The independent medical examiner noted that the autopsy confirmed that the Veteran died due to overwhelming pneumonia and sepsis. This examiner found that the autopsy demonstrated only moderate atherosclerotic disease of the left anterior descending and circumflex arteries, and mild disease of the right coronary artery. The examiner found that the autopsy did not find evidence of any thrombus to suggest an acute myocardial infarction. While the left ventricle was thickened, consistent with hypertensive changes of the heart, the autopsy did not show signs of thinning or necrosis to suggest a previous or recent myocardial infarction. Having considered the above, the examiner concluded that the Veteran died from an overwhelming pneumonia and sepsis which was an expected outcome in a patient with an infection so severe considering his age and multiple non-cardiovascular conditions. The examiner specifically concluded that the Veteran's cardiovascular disease did not likely cause or contribute significantly to his death. The Board finds that the most probative evidence preponderates against entitlement to service connection for the cause of the Veteran's death on a direct basis. Service treatment records reveal no complaints, findings or diagnoses for the lungs and/or cardiovascular system. At separation, the Veteran's lungs and heart were normal. Cardiovascular renal disease also was not compensably disabling within a year of the Veteran's separation from active duty. Furthermore, the evidence shows that respiratory and cardiovascular problems were not shown until many decades after service. The passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no competent evidence or opinion that the Veteran's cause of death was related to his military service and neither the appellant nor her representative has presented such an opinion. In sum, the evidence preponderates against finding that the Veteran's cause of death is directly related to service. The Board also finds that the preponderance of the evidence is against finding that any service-connected disability was the principal or contributory cause of his death. At the time of his death, the Veteran was service connected for lumbosacral degenerative joint and disc disease and malaria. The death certificate lists the immediate cause of death as bilateral pneumonia-mixed bacterial. Dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease were listed as disorders contributing to death, but not related to the cause of death. The principal cause of the Veteran's death is clearly demonstrated to be pneumonia as documented both on the death certificate and the first pathological diagnoses in the autopsy report. There is no competent opinion evidence to the contrary that is discusses the totality of the evidentiary record. In order to establish cause of death in this case, the evidence must show that a service connected disorder was a contributory cause of death, which is to say that a service connected disorder contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). The appellant does not assert that the Veteran's service connected malaria was in any way related to his death. The evidence of record also contains absolutely no suggestion whatsoever which would link the Veteran's in-service malaria to his death. Thus, the Board will focus on whether the Veteran's service-connected degenerative joint and disc disease in any way contributed to his death. As noted, the appellant asserts that medications the Veteran used to treat his arthritis and back pain contributed to his death. In support of the appellant's claim are the opinions of Dr. D.S. who stated that sometimes the Veteran's service connected back disabilities interfered with his other disabilities; the opinion of Dr. L.W. who stated that the Veteran's congestive heart failure could have been worsened, but not caused by, the use on non-steroidal anti-inflammatory drugs; and the opinion of Dr. J.S. who noted that medications to treat arthritis irreparably weakened the Veteran's condition and that there was a relationship between the Veteran's use Celebrex and Percocet and his elevated pressure, diastolic dysfunction and congestive heart failure. Further supporting the claim are the statements of the appellant herself. While the evidence of record contains positive and negative evidence in regard to the question at hand, the private physician opinions primarily speak to the Veteran's use of medications for arthritis and their effects on his heart. These opinions do not directly speak to the fundamental question whether the Veteran's heart disorder contributed materially or substantially to his death. Thus, while a link between the Veteran's medications and his heart disorder is discussed, at no time is the use of medications and his death discussed. Indeed, the opinion of Dr. J.S., which gets closest to offering a probative opinion, merely states that the Veteran's medications for his service-connected back disorder made him weaker and more susceptible to disease. At best, this opinion shows that the Veteran's degenerative joint and disc disease causally shared in producing death which is insufficient to establish a contributory cause of death. 38 C.F.R. § 3.312(c). Hence, Dr. J.S.'s opinion is insufficient to show a relationship between the Veteran's death and his use of arthritis and pain medication. The Board has also considered the appellant's sincerely held belief that the Veteran's death was related to a disability of service origin. As a lay person, the appellant is competent to report on that which she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, however, the question of etiology of the Veteran's death, i.e., whether the medications the Veteran used to treat his arthritis and back pain contributed to his death, goes beyond a simple and immediately observable cause-and-effect relationship. As such, she is not competent to render an opinion of etiology as to the medical cause of her husband's death. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, the independent medical examiner who, after reviewing the evidence of record in its totality, determined that the Veteran's death was not due to any cardiac disorder but instead was due to pneumonia. The independent medical examiner, a board-certified cardiologist, gave a detailed report of the evidence reviewed including the Veteran's service treatment records and claims file and succinctly opined that the Veteran's death was not likely caused or contributed to by heart disease. The independent medical examiner addressed the pertinent evidence, cited medical references supporting his conclusion and discussed the medical reports created at the time of the Veteran's death at length. Again, there is no competent evidence offering a contrary opinion that is based on consideration of all of the evidence. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The opinions of the private physicians are not adequately supported to determine that a service connected disorder contributed to the Veteran's death. Hence, the Board favors the opinion of the independent medical examiner over those of the Veteran's private physicians. The Board has considered the March 2006 hospital discharge summary which included an impression of cardiogenic shock secondary to a myocardial infarction. Consideration has also been given to the death certificate that listed dilated cardiomyopathy, renal failure, dementia, and arteriosclerotic cardiovascular disease as disorders contributing to death but not related to the cause of death, and the April 2006 autopsy report which listed hypertensive cardiovascular disease and atherosclerotic cardiovascular disease. While these reports identify cardiovascular diseases relating to the Veteran's death, the Board notes such are not shown to have contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. Rather, as found by the independent medical examiner who considered all the evidence including the above, the cause of the Veteran's death was overwhelming pneumonia and sepsis, not a heart disorder. In sum, the most probative evidence is against finding that the Veteran's death was caused by service or a service-connected disability. The most probative evidence demonstrates that the fatal disease processes were not related to service. Although the Board has considered the appellant's opinion and testimony, she is not competent to offer an opinion as to the etiology of the Veteran's death. The claim is denied. In reaching this decision the Board considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for the cause of the Veterans death is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs