Citation Nr: 1319460 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-32 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina 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 A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from January 1964 to January 1968. He died in October 2007. The Appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2008 and July 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Appellant submitted a Notice of Disagreement (NOD) with these determinations in July 2008, and perfected her appeal in September 2009. The Appellant was afforded a Travel Board Hearing before the undersigned Veterans Law Judge in May 2012. A written transcript of that hearing was prepared and incorporated into the evidence of record. In July 2012, September 2012, and January 2013, the Board referred this case for medical expert opinions with the Veterans Health Administration (VHA). In July 2012, October 2012, and February 2013, the Board received VHA medical opinions from a Staff Cardiologist. The Appellant was provided a copy of these opinions with an opportunity to present further argument and/or evidence. Thus, the claim has been returned to the Board for adjudication. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above 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 Veteran died on October [redacted], 2007 due to pulmonary thromboembolism as the immediate cause of death and deep leg vein phlebothrombosis as an underlying cause of death, with with Coumadin therapy and atrial fibrillation as significant conditions contributing to death. 2. At the time of the Veteran's death, service connection was in effect for arteriosclerotic coronary artery disease with hypertension and angina, rated as 30 percent disabling, and total knee replacement of the right knee with history of injury and traumatic arthritis, rated as 30 percent disabling. 3. None of the disabilities causing or contributing to the Veteran's death (pulmonary thromboembolism, deep leg vein phlebothrombosis, Coumadin therapy, or atrial fibrillation) were present in service, or within a year following discharge from service, and they are not shown to be related to service. 4. Neither the Veteran's service-connected arteriosclerotic coronary artery disease with hypertension and angina nor total knee replacement of the right knee caused or materially and substantially contributed or combined to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW A service connected disability did not cause death or contribute substantially or materially to death. 38 U.S.C.A. §§ 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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 seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for DIC benefits, § 5103(a) notice must 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, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing § 5103(a)- compliant notice. The Board acknowledges that the November 2007 letter did not specifically include a statement of the conditions for which the Veteran was service-connected at the time of his death. Although the Appellant has not raised any notice issues, the failure to provide complete, timely notice to the Appellant raises a presumption of prejudice, so that VA has the burden to establish that the Appellant was not, in fact, prejudiced by the inadequate notice. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the Appellant was not prejudiced by the deficiencies in the November 2007 letter because, although the letter did not specifically include a statement of the conditions for which the Veteran was service-connected at the time of his death, it did provide an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition or a condition not yet connected. Additionally, the RO issued another May 2009 VCAA notice detailing the Veteran's service-connected disabilities at his time of death. Although the May 2009 notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the July 2009 statement of the case (SOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Appellant was not precluded from participating effectively in the processing of her claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Next, VA has a duty to assist the Appellant in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's service treatment records and VA outpatient treatment records. Additionally, the medical records surrounding the time of the Veteran's death have also been incorporated into the evidence of record. Further, medical expert opinions by the VHA were obtained in connection with the issue on appeal. Therefore, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Appellant nor her representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained, and the Appellant notified VA in May 2012 that she had no additional information or evidence to provide to VA in support of her claim. Hence, no further notice or assistance to the Appellant is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(c)(1) (2012). A contributory cause of death is inherently one not related to the principal cause. 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; 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. "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)(3) (2012). 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) (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." 38 C.F.R. § 3.312(c)(4) (2012). Cause of the Veteran's Death The Appellant contends that the Veteran's service-connected conditions contributed to his death. Specifically, she has stated that the Coumadin therapy the Veteran received for his service-connected coronary artery disease with hypertension, significantly contributed to his death. The Veteran died on October [redacted], 2007 due to pulmonary thromboembolism as the immediate cause of death and deep leg vein phlebothrombosis as an underlying cause of death, with with Coumadin therapy and atrial fibrillation as significant conditions contributing to death. The November 2007 autopsy report listed the major finding as a pulmonary embolism. Associated findings upon autopsy included right heart dilation, pericardial effusion, and congestion of the liver. There was moderate arteriosclerotic and hypertensive cardiovascular disease and hepatosplenomegaly. A few scattered contusions were noted throughout the body, the most prominent on the lower abdomen. At the time of the Veteran's death, service connection was in effect for arteriosclerotic coronary artery disease with hypertension and angina, rated as 30 percent disabling and total knee replacement of the right knee with history of injury and traumatic arthritis, rated as 30 percent disabling. The primary issue in this case is whether the Veteran's service-connected disabilities were a principle or contributory cause of his death. In regard to service connection on a direct basis, the Appellant does not contend, nor does the evidence show, that the Veteran's pulmonary thromboembolism, deep leg vein phlebothrombosis, Coumadin therapy, or atrial fibrillation had its onset during active service or is related to service. Service medical records are devoid of any complaints of, or treatment for, pulmonary thromboembolism, deep leg vein phlebothrombosis, Coumadin therapy, or atrial fibrillation, and there is no competent evidence of record relating these conditions to his active military service. Next, a determination must be made as to whether the Veteran's service-connected arteriosclerotic coronary artery disease with hypertension and angina or total knee replacement of the right knee were contributory causes of the Veteran's death. 38 C.F.R. § 3.312(a) (2012). On October 11, 2007, the Veteran was admitted to Wake Forest University Baptist Hospital with complaints of chest pain. After examination, pertinent diagnostic tests, and a hospital stay of approximately five days, the Veteran was discharged on October 15, 2007, with a diagnosis of atrial fibrillation with rapid ventricular response. During his hospital stay, the Veteran had been started on oral anticoagulation (Coumadin) for purposes of stroke prevention On October 22, 2007, approximately a week following his discharge from the hospital, the Veteran was seen in the Coumadin Clinic at Wake Forest University Baptist Hospital for a prothrombin time blood test. At that time, the Veteran also reported that he had been experiencing right knee pain and swelling for the last two days. He was given a right knee X-ray, which showed right knee effusion. The Veteran was sent home following treatment. On October [redacted], 2007, the Veteran collapsed in his home. Emergency medical services were called to the scene and the Veteran was found to be unresponsive. They commenced CPR and transported him to the hospital. The Veteran did not regain a pulse or begin breathing spontaneously. The Veteran was not able to be revived and was pronounced dead. A VA opinion was obtained in July 2008 in reference to the Veteran's cause of death. The physician noted that she did an extensive review of the Veteran's records, including the claims file and CPRS notes. The physician concluded that the Veteran's service-connected total right knee replacement did not contribute to the Veteran's death, nor was it related to the pulmonary thromboembolism, deep leg vein phlebothrombosis, or Coumadin therapy/atrial fibrillation. The right total knee replacement was done in 1997, and thus was unrelated to the current pulmonary artery thromboembolism, possible deep leg vein phlebothrombosis (DVT), or Coumadin therapy/atrial fibrillation. With regard to the service-connected arteriosclerotic coronary artery disease with hypertension and angina, and whether it was related to the pulmonary thromboembolism, deep leg vein phlebothrombosis, or Coumadin therapy/atrial fibrillation, the VA physician could not resolve this issue without resort to mere speculation. The notes did not indicate any connection between the CAD/angina and the pulmonary thromboembolism (PE), possible DVT, or atrial fibrillation/Coumadin therapy. There was no mention of the cause of the atrial fibrillation (for which the Veteran was receiving Coumadin). The autopsy did not reveal any sign of DVT, including dissection of the posterior legs. It was unclear what the exact source of the PE was. Although the Veteran had complained of some chest pain intermittently, and some of the notes indicated dyspnea (some didn't), the pulse oximetry at the time of his hospitalization on October 11, 2007 was normal. The echocardiogram done during that hospitalization didn't mention any increased PA pressure, dilated right ventricle, or clot. It seemed that the PE found was an acute episode (the Veteran evidently had a witnessed arrest and was found to be in PEA, and the asystole on October [redacted], 2007), with unknown source of the PE. Some notes mentioned some superficial thrombophlebitis at an IV site on October 22, 2007, but no DVT was mentioned. There were some notes in the CPRS that indicated the Veteran had fractured his left elbow early in the summer of 2007, and that he was being seen by a private orthopedist for this, and they were considering surgery. It was unclear to the VA physician whether he had any surgery done, since no records from the civilian orthopedist were seen. If the Veteran had a recent surgery for his left elbow, it was possible that could have predisposed him to development of DVT with PE. The hypertension may have contributed to some of the Veteran's renal insufficiency (renal arterionephrosclerosis). Though he had other risk factors for this (obesity, hyperlipidemia, for instance), and was on medications that could contribute to rising creatinine and potassium (i.e., Benazepril, Triamterene/HCTZ, Naproxen). It was unclear whether the acute renal insufficiency (on chronic kidney disease), with acute hyperkalemia, contributed to his death. The VA records stated his potassium (k) was 6 and creatinine rose to 2.9 on October 22, 2007 (hyperkalemia could have contributed to cardiac arrest), but it was unclear if that contributed to his death or not (the Veteran was already in cardiac arrest when he arrived at the hospital on October [redacted], 2007, and she did not see any mention of a repeat K level). The main finding of the autopsy was that of the pulmonary thromboembolism, and his service-connected disabilities were not clearly related to this finding. The Appellant was afforded a Travel Board hearing in May 2012. The Appellants representative testified to and submitted articles stating that coronary artery disease is characterized by cholesterol containing arterial blockages. Pulmonary thromboembolism and deep vein thrombosis were characterized by a blockage of the arteries. Therefore, it seemed obvious that arterial blockages were the cause of death or vein blockage. Also, the Veteran was service-connected for hypertension, and a secondary cause of death was Coumadin therapy. Documentation from the Mayo Clinic stated that anti-coagulants , such as Coumadin, are prescribed for hypertension. Coronary artery disease causes blockages, and two of the primary causes of death, were due to vein and arterial blockages. For further clarification on the issue of whether the Veteran's service-connected arteriosclerotic coronary artery disease with hypertension and angina contributed to his death, the Board requested an expert medical opinion from a VHA specialist. A July 2012 medical opinion was obtained from a Staff Cardiologist. The physician reviewed and noted the Veteran's relevant medical records and examination reports surrounding the time of his death in October 2007. The specialist concluded that it seemed that pulmonary embolism may have been the reason for the chest pain, collapse, and asystole. He concluded that it was not likely that Coumadin contributed to the Veteran's death. Additionally, it was not likely that the atherosclerotic heart disease substantially and materially contributed to his death. The VHA Cardiologist submitted an October 2012 addendum report to his July 2012 opinion. The specialist stated that it was not at least as likely as not that the Coumadin therapy the Veteran was receiving for his service-connected hypertension caused or substantially and materially contributed to his death. Coumadin was given to the Veteran to prevent any thromboembolic complication (stroke) that could arise from atrial fibrillation. Coumadin thins the blood and the Veteran had a clot in the lung in spite of the medication. It was not clear why he had this clot and it was not a complication of atrial fibrillation or Coumadin therapy. The level of anticoagulation was checked in the emergency room and was noted to be 2.1. The range of INR that is generally recommended is between 2 and 3. An October 2, 2012 record noted that the Veteran was in the expected range to prevent a stroke. It seemed that the pulmonary embolism occurred in spite of taking Coumadin and it was not the reason for this unfortunate event. Hence, it was not likely that Coumadin caused this pulmonary embolism. Additionally, the specialist concluded that it was not at least as likely as not that the atherosclerotic coronary artery disease caused or substantially and materially contributed to his death. The autopsy report showed that the atherosclerotic coronary artery disease was moderate. There was a 50 percent stenosis of the left anterior descending coronary artery with focal calcification, 10 percent stenosis of the circumflex, and 10 percent stenosis of the right coronary artery disease. There was no clot or ruptured plaque. He did have a clot extending from the right atrium to the right ventricle, to the pulmonary artery. The right heart was dilated, which was not seen in the prior echocardiogram. His echocardiogram done earlier that month showed that the heart was pumping normally, indicating that the blockages did not affect the pumping of the heart. The clot in the lung, which actually extended form the heart, probably caused this sudden occlusion in the pulmonary artery, leading to the right heart dilation and acute right heart failure, leading to syncope, collapse, and cardiac arrest. The specialist concluded that he did not feel the moderate disease in the coronary arteries had caused or substantially and materially contributed to his death. In summary, the Veteran had developed pulmonary embolism in spite of taking Coumadin, and neither Coumadin nor the atherosclerotic heart disease caused or substantially and materially contributed to death. The VHA Cardiologist submitted a final February 2013 addendum opinion to clarify a medical statement discussed in his previous opinion: "The clot in the lung, which actually extended from the heart, probably caused this sudden occlusion in the pulmonary artery, leading to the right heart dilation and acute right heart failure leading to syncope, collapse, and cardiac arrest." The specialist reported that the above statement explained the mechanism of sudden death in patients who have pulmonary embolism with a large clot. The Veteran was noted to have a clot in the pulmonary artery extending to the right ventricle and right atrium as per the autopsy results, and the right heart was noted to be dilated. The usual mechanism of sudden death is blockage in the pulmonary artery causing increased resistance against which the right heart has to pump. This caused the right heart to dilate and fail, leading to hypotension, collapse, and eventual cardiac arrest. The specialist stated that he did not know if this was how it happened in this case, but that it was how usually sudden death occurred in pulmonary embolism. Hypertension and the mild coronary artery disease that the Veteran had did not increase the risk of sudden death nor played a role in it. The right coronary artery which supplies the right heart only had 10 percent blockage. A severe blockage of the right coronary artery (80 percent or more) could have conceivable played a role and that was not the case in this patient. The clot in the right heart usually comes from the veins in the abdomen or lower extremities. Here, they did not find the source. It may have formed in one of the veins and moved to the heart; we don't know that. However, atherosclerotic coronary artery disease did not cause any clot in the right heart, and it did not substantially and materially contribute to his death. The coronary artery disease is non-obstructive and did not interfere with the functioning of the heart. The specialist also concluded that it was not at least as likely as not that the Veteran's hypertension/angina otherwise cause or substantially and materially contributed to his death. Based on the above evidence, service connection for the cause of the Veteran's death is not warranted. There is no competent evidence of record suggesting a possible relationship between the Veteran's arteriosclerotic coronary artery disease with hypertension and angina or total knee replacement of the right knee, and his cause of death. Furthermore, the Veteran's death certificate did not indicate that the Veteran's arteriosclerotic coronary artery disease with hypertension and angina or total knee replacement of the right knee were the immediate or contributory cause of the Veteran's death. Although the Appellant sincerely believes that the Veteran's service-connected disabilities played a contributory role in the cause of the Veteran's death, this is a medical question that is beyond the scope of the Appellants medical knowledge. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). The type of medical nexus opinion needed in this case requires a medical background and is not a simple determination that comes through one's senses such as feeling pain or reporting an injury. Specifically, in an October 2012 opinion, the VHA Cardiologist stated that it was not at least as likely as not that the Coumadin therapy the Veteran was receiving caused or substantially and materially contributed to his death. Coumadin was given to the Veteran in order to prevent any thromboembolic complication (stroke) that could arise from atrial fibrillation. Coumadin thins the blood and the Veteran had a clot in the lung in spite of the medication. It was not clear why he had this clot, but it was not a complication of atrial fibrillation or Coumadin therapy. Additionally, the specialist concluded that it was not at least as likely as not that the atherosclerotic coronary artery disease caused or substantially and materially contributed to his death. The autopsy report showed that the atherosclerotic coronary artery disease was moderate. His echocardiogram done earlier that month showed that the heart was pumping normally, indicating that the blockages did not affect the pumping of the heart. The specialist concluded that he did not feel the moderate disease in the coronary arteries had caused or substantially and materially contributed to his death. In summary, the Veteran had developed pulmonary embolism in spite of taking Coumadin, and neither Coumadin nor the atherosclerotic heart disease caused or substantially and materially contributed to death. In the February 2013 VHA addendum opinion, it was noted that the Veteran had a clot in the pulmonary artery extending to the right ventricle and right atrium, as per the autopsy results, and the right heart was noted to be dilated. The usual mechanism of sudden death is blockage in the pulmonary artery causing increased resistance against which the right heart has to pump. The Veteran's hypertension and coronary artery disease did not increase the risk of sudden death nor played a role in it. The right coronary artery, which supplies the right heart only had 10 percent blockage. Atherosclerotic coronary artery disease did not cause any clot in the right heart, and it did not substantially and materially contribute to his death. The coronary artery disease is non-obstructive and did not interfere with the functioning of the heart. Furthermore, the July 2008 VA opinion obtained concluded that the Veteran's service-connected total right knee replacement did not contribute t the Veteran's death, nor was it related to the pulmonary thromboembolism, deep leg vein phlebothrombosis, or Coumadin therapy/atrial fibrillation. The right total knee replacement was done in 1997, and thus was unrelated to the current pulmonary artery thromboembolism, possible deep leg vein phlebothrombosis (DVT), or Coumadin therapy/atrial fibrillation. Given that the competent medical evidence of record weighs against the claim, and there is no evidence to support the Appellant's contentions, the claim must be denied. In sum, the preponderance of the evidence of record demonstrates that the Veteran's service-connected arteriosclerotic coronary artery disease with hypertension and angina or total knee replacement of the right knee, were not the primary or a contributing cause of his death. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Appellant's claim of entitlement to service connection for the cause of the Veteran's death must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs