Citation Nr: 1319265 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-31 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active military service from June 1964 to May 1967. He died on May [redacted], 2009. The appellant is the Veteran's surviving spouse. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In April 2011, the appellant testified during a videoconference hearing before a Veterans Law Judge (VLJ) who is now retired. A transcript of the proceeding is associated with the Veteran's claims file. In January 2012, the Board remanded this claim for additional development and consideration. Thereafter, the appellant was informed that the April 2011 VLJ had retired in a May 2013 letter, and she was offered the opportunity to have another hearing. The appellant responded that she did not desire a new hearing. See 38 C.F.R. § 20.707 (2012) (providing that the Board member who conducts a hearing shall participate in a decision). Finally, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The death certificate reflects that the Veteran died in May 2009 and lists the principal cause of death as alcoholic cirrhosis due to (or as a consequence of) diabetes mellitus. 2. At the time of his death, service connection had been established for major depression with generalized anxiety disorder associated with diabetes mellitus, type II, with erectile dysfunction, rated as 30 percent disabling; diabetes mellitus (DM), type II, with erectile dysfunction, rated as 20 percent disabling; peripheral neuropathy, right upper extremity, associated with DM, rated as 10 percent disabling; peripheral neuropathy, left upper extremity, associated with DM, rated as 10 percent disabling, peripheral neuropathy, right lower extremity, associated with DM, rated as 10 percent disabling; and peripheral neuropathy, left lower extremity, associated with DM, rated as 20 percent disabling. The combined service-connected disability rating was 70 percent. 3. The Veteran was also in receipt of a total disability (i.e., 100%) rating due to individual unemployability (TDIU) since July 18, 2006. 4. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities caused or contributed substantially or materially to cause his death. CONCLUSION OF LAW A disability incurred in or aggravated by service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Additionally, in claims for dependency and indemnity compensation (DIC) benefits, including cause of death, VCAA notice must include: (1) a statement of the conditions, if any, for which the Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim - including the downstream disability rating and effective date elements. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Here, by way of a July 2009 letter, the AOJ advised the appellant of the evidence needed to substantiate her claim and explained what evidence VA was obligated to obtain or to assist her in obtaining and what information or evidence she was responsible for providing. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). This claim was last adjudicated in April 2012. Relevant to the duty to assist, the Veteran's service treatment records, Social Security Administration (SSA) records, and post-service VA and private treatment records have been obtained and associated with the claims file. The appellant has not identified any additional evidence that has not been requested or obtained. Additionally, medical nexus opinions were obtained in May 2010, and January and February 2012 on the determinative issue of causation, which considered the appellant's specific contentions discussed below. In obtaining these January and February 2012 opinions, the Board finds substantial compliance with the January 2012 remand directives. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Further, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the 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 hearing, the VLJ specifically clarified the issue on appeal. Additionally, throughout the hearing and with regard to each particular issue, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. Moreover, neither the appellant nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims and the appellant and her representative, through testimony, argument and questions, demonstrated actual knowledge of the elements necessary to substantiate each claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board will proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Entitlement to Service Connection for the Cause of the Veteran's Death When a Veteran dies from a service-connected disability, the Secretary shall pay DIC for such Veteran's surviving spouse, children or parents. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.312(a). The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. Id. A service-connected disability will be considered as the principal (primary) cause of death when such 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). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Id. Generally, 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. 38 C.F.R. § 3.312(c)(2). In the same category, there would be included service-connected diseases or injuries of any evaluation (even 100 percent evaluations) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. Id. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, an original death certificate lists the principal cause of death as alcoholic cirrhosis. An amended death certificate from the Arkansas Department of Health lists the principal cause of death as alcoholic cirrhosis due to (or as a consequence of) diabetes mellitus. At the time of his death, the Veteran was service-connected for major depression with generalized anxiety disorder associated with diabetes mellitus, type II, with erectile dysfunction, rated as 30 percent disabling; diabetes mellitus (DM), type II, with erectile dysfunction, rated as 20 percent disabling; peripheral neuropathy, right upper extremity, associated with DM, rated as 10 percent disabling; peripheral neuropathy, left upper extremity, associated with DM, rated as 10 percent disabling, peripheral neuropathy, right lower extremity, associated with DM, rated as 10 percent disabling; and peripheral neuropathy, left lower extremity, associated with DM, rated as 20 percent disabling. The combined service-connected disability rating was 70 percent. See 38 C.F.R. § 4.25 (combined ratings table). He also had been in receipt of a total disability (i.e., 100%) rating due to individual unemployability (TDIU) since July 18, 2006. The appellant argues that the Veteran's service-connected disabilities were principal or contributory causes of his death, or that alcohol consumption which produced his cirrhosis was secondary to his depression. She testified that the Veteran's service-connected DM spiked towards the end of his life, to include while in hospice care, and that contrary to a May 2010 VA medical opinion, his service-connected DM did in fact contribute to the Veteran's demise. See hearing transcript, page 6. The Veteran's service treatment records are completely silent regarding a diagnosis of liver cirrhosis. Following his military service, VA treatment records through May 2009 show that the Veteran was diagnosed with and treated for a multitude of disabilities. On several occasions, the Veteran was admitted for treatment due to chronic liver failure. In April 2009, a VA record notes the Veteran was suffering from liver failure and was on the transplant list. Additionally, other current health problems included DM, ascities, cirrhosis, and portal hypertension. The Veteran's private treatment records from Hospice of the Ozarks show he presented in May 2009 with end stage alcoholic cirrhosis and mental status changes. He passed away the day following his admission. In May 2010, a VA medical opinion was obtained and the report reflects that the examiner reviewed the Veteran's chart. The examiner ultimately determined that it is most likely the Veteran died of progressive end-stage liver failure and that his diabetes mellitus was only incidental, and it should have been listed under Part II (other significant conditions contributing to death but not resulting in the underlying cause given in Part I), rather than as a primary cause. The examiner also stated that it is unlikely that the diabetes mellitus or complications thereof were a contributing fact in the Veteran's demise. In January 2012, the Board remanded this claim because it was not clear what records the May 2010 VA examiner actually reviewed, to include the Veteran's claims file. Further, additional VA and private treatment records were requested. Finally, the Board noted that the doctor who signed the original death certificate was a M.S. Hagaman, MD; however, the amended death certificate was initialed by "SN". Consequently, the Board requested clarification from the Arkansas Department of Health concerning the credentials of the person with the initials "SN" who amended the Veteran's death certificate, and whether "SN" was medically qualified to amend the death certificate. In January 2012, the Arkansas Department of Health responded to the AOJ's inquiry regarding the amended death certificate. It was determined that the "SN" was a former employee of the Department of Health in the Vital Records section. As such, she did have the authority to make the changes. The Department of Health explained that most death corrections are requested from the funeral home, but they do not know who requested the change or contacted the funeral home in this case. Since the change was medical in nature, a supplemental report was sent to the person who certified the death certificate at the bottom. This change was then reportedly signed off on by the certifying physician, and returned to the office of Vital Records. Also in January 2012, an opinion was obtained concerning whether the Veteran's service-connected psychiatric disability substantially or materially contributed to the Veteran's death. Following a review of the claims file, the examiner determined that the Veteran's depression/ anxiety were less severe in the months preceding his death. In fact, a treatment record dated in February 2009 indicates that the Veteran reported his mood was fine and a lot better than in the past. Consequently, the examiner determined that based on the lack of established relationship between depression/ anxiety and cirrhosis of the liver, it is less likely as not that the Veteran's depression/ anxiety substantially or materially contributed to the Veteran's death. In February 2012, an opinion was obtained concerning whether the Veteran's service-connected DM substantially or materially contributed to the Veteran's death. Following a review of the claims file, to include consideration of the May 2010 VA examiner's findings, the February 2012 VA examiner determined that the primary cause of the Veteran's death was alcoholic cirrhosis, and that DM was not a substantial contributing factor to his death. The examiner stated that DM is not etiologically related to alcoholic cirrhosis in any literature known to that examiner. Also associated with the claims file are the Veteran's SSA records. These records show he was considered to be disabled due to psychiatric disorders. Here, however, the determinative issue is not the severity of the Veteran's psychiatric disability, including in terms of whether it is permanently and totally disabling, such as from an employment standpoint, rather, whether the Veteran's psychiatric disability may have contributed substantially and materially to his death. These records do not provide any information as to this question. In view of the foregoing, the Board concludes that the most probative evidence of record fails to demonstrate a service connected disability caused or materially contributed to the cause of the Veteran's death. Obviously, there is some evidence implicating DM in the Veteran's death by its inclusion on the amended death certificate as having caused his fatal liver cirrhosis. However, the basis for that amendment has been unexplained, and as such, the more probative evidence on the question of its role in the Veteran's death is the adverse opinions from the VA medical professionals who explained there is no medical literature identifying any etiological relationship between DM and cirrhosis. Furthermore, no competent evidence has been presented establishing that the Veteran's alcohol abuse was a manifestation of any service connected disability, including his psychiatric disorder. The appellant has made that assertion, but she is not shown to have the medical competence to establish that fact. The medical evidence shows that the Veteran's alcohol consumption was a concern back in the mid-1990's, and it was not until the mid-2000's that any psychiatric disorder manifested, and this was considered secondary to the increasing impairment from DM. As such, there is no indication that the Veteran was consuming alcohol as a means to alleviate the effects of his psychiatric illness. If that were the case, one would reasonably have expected the presence of the psychiatric illness to precede the presence of excessive alcohol consumption. Because the greater weight of the evidence shows that DM did not cause the Veteran's terminal alcoholic cirrhosis, or that alcoholic cirrhosis was present in service or for many years after service, or that it was a consequence of a symptom of a service connected disability or that any service connected disability caused or contributed substantially or materially to cause his death, a basis upon which to establish service connection for the cause of the Veteran's death has not been presented. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death and, as such, that doctrine is not applicable in the instant appeal and the claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs