Citation Nr: 1321930 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 10-00 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1944 to April 1946. He died in September 2008. The appellant is the Veteran's surviving spouse. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded by the Board in April 2012 for additional development. It was remanded again in February 2013 for an addendum opinion on whether it is at least as likely as not that the Veteran's service-connected posttraumatic stress disorder (PTSD) aggravated his gastric cancer. A subsequent opinion was obtained by VA in March 2013 and added to the claims files. Based on the above-noted action, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2012, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran died in September 2008; the death certificate lists the primary cause of death as gastric cancer with bone metastasis; significant conditions contributing to death but not related to the immediate cause of death were PTSD, degenerative joint disease, coronary artery disease, high blood pressure, and chronic renal insufficiency. 2. At the time of the Veteran's death, he was assigned a 50 percent rating for PTSD and a 40 percent rating for degenerative disc and joint disease of the lumbar spine; individual unemployability (TDIU) was granted effective February 29, 2000. 3. The preponderance of the evidence is against a finding that metastatic gastric cancer and any disease or injury which caused or contributed to the Veteran's death was incurred in or aggravated by military service or was proximately due to or aggravated by service-connected disability. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. 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). Here, the VCAA duty to notify was partially satisfied by way of a letter sent to the appellant in November 2008 that addressed substantially all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board notes that not all the elements of Hupp were met with the November 2008 notice, as the appellant was not specifically informed of the conditions for which the Veteran was service-connected. However, this notice defect has not resulted in prejudice, as the appellant has demonstrated, including at her March 2012 videoconference hearing, that she was already aware that the Veteran was service-connected for PTSD, as this is the service-connected condition that she contends contributed to his death. Moreover, because the appellant's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002); see also DeLaRosa v. Peake, 515 F.3d. 1319, 1322 (Fed. Cir. 2008). There are relevant VA and private records of the Veteran during his lifetime that have been associated with the claims files. In addition, the Veteran's service treatment records have also been obtained and are contained in the claims files. There are also several relevant medical opinions on file, including the opinions obtained in July 2012 and March 2013. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the appellant's cause of death claim decided herein. The Board additionally finds that general due process considerations have been complied with by VA, and the appellant has had a meaningful opportunity to participate in the development of her claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2008). In Bryant v. Shinseki, 22 Vet. App. 488 (2010) (per curiam), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c) (2) (2009) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above 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 a videoconference hearing in March 2012, the VLJ specifically noted that the issue was of entitlement to service connect for cause of death. The appellant was assisted at the hearing by an accredited representative from the Colorado Division of Veterans Affairs. The representative and the VLJ then asked questions to obtain information relating to the issue from the appellant. In addition, the VLJ 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. Neither the appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c) (2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the 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 that any error in notice provided during the hearing constitutes harmless error. Analysis of the Claim The appellant is seeking service connection for the cause of the Veteran's death, as she believes that his service-connected psychiatric disability materially contributed to his death from metastatic gastric cancer. Service connection may be granted for disability or death resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred or aggravated in service either caused or contributed substantially or materially to cause death. 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. For a service-connected disability to constitute a contributory cause, 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 (West 2002); 38 C.F.R. § 3.312 (2012). In order to be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). 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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). 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. See 38 C.F.R. § 3.312(c)(4). According to the Veteran's death certificate, he died in September 2008 due to metastatic gastric cancer. Significant conditions contributing to death but not related to the immediate cause of death were PTSD, degenerative joint disease, coronary artery disease, high blood pressure, and chronic renal insufficiency. No autopsy was performed. At the time of the Veteran's death, the Veteran was assigned a 50 percent rating for PTSD and a 40 percent rating for low back disability; TDIU had been assigned since February 29, 2000. The Veteran's service treatment records do not contain any complaints or findings of gastrointestinal disability coronary artery disease, high blood pressure, or chronic renal insufficiency, including on separation medical evaluation in April 1946. VA treatment records dated from November 2001 through September 2008 are of record. Colitis was shown on endoscopic examination in June 2006. A June 2006 colonoscopy revealed erythematous friable mucosa from the cecum to the ascending colon. Gastric ulcers were noted in October 2006. The diagnosis on esophagogastroduodenoscopy (EGD) in December 2006 was chronic gastric ulcer, rule out malignancy. An EGD in February 2007 showed adenocarcinoma. September 2008 medical reports from Penrose St. Francis Hospital reveal that the Veteran was treated for carcinoma of the stomach. Added to the claims files in April 2009 is a medical article in which it is noted that stress-induced gastritis can cause mucosal erosions and superficial hemorrhages in patients who are critically ill or in those who are under extreme physiological stress, resulting in minimal-to-severe gastrointestinal blood loss and leading to blood transfusion if not addressed. The appellant testified at a videoconference hearing in March 2012 that although she did not meet the Veteran until several years after service, he had had stomach problems for as long as she had known him; and that she had been told by medical personnel that the Veteran's stress accelerated his gastric cancer. According to a July 2012 medical report from a VA staff psychiatrist, which was based on a review of the claims files, it was less likely as not that the Veteran's PTSD contributed substantially or materially to his death or combined to aid or assist with the production of death or aggravate the cause of death. It was noted that information in the Veteran's file showed that his PTSD was under relatively good control until he was diagnosed with gastric cancer and that he was reported to have experienced increased anxiety and depression after the diagnosis. While information in health literature has suggested that stress can have a negative effect on a person's health, the VA psychiatrist was not aware of a specific correlation showing that PTSD caused gastric cancer. Given the Veteran's history of working in construction and being exposed to various materials and toxic substances used in the building industries, it was noted that there are many unknown variables regarding a possible etiology for gastric cancer. It was the opinion of the VA psychiatrist that, at least as likely as not, it could not be concluded that the Veteran's PTSD was a direct contributor to his death. After review of the claims files, a VA physician concluded in July 2012 that the Veteran's service-connected degenerative disc and joint disease of the lumbosacral spine did not either alone or in combination with other conditions noted on the death certificate cause or contribute substantially or materially to the cause of death, or aid or lend assistance to the production of death, or cause or aggravate his gastric cancer because there is no known relationship between gastric adenocarcinoma and degenerative disc and joint disease of the lumbosacral spine. The VA physician noted that there was no known history of any gastrointestinal symptoms until the 1990's and that the other conditions reported in the Death Certificate to have contributed to death have no known relationship to the cause or development of gastric cancer. According to an unsigned statement submitted by the appellant in November 2012, which she contends is a doctor's note, the Veteran had a history of degenerative joint disease since service that lead to bone cancer, which was a significant cause of his death. In response to the February 2013 Board remand, an addendum opinion was obtained in March 2013 from the psychiatrist who provided the July 2012 opinion. After another review of the claims files, as well as review of relevant medical literature, it was concluded that the evidence did not support a biologic worsening of gastric cancer due to PTSD beyond the natural progression of the disorder. According to this psychiatrist, it would be speculative, exploratory, and unfounded to conclude that stress or certain stressors clearly aggravate gastric cancer, especially in light of the notation that the Veteran had shown improvement of stress with his treatment. A number of selected medical references were listed in support of the above opinion, to include articles from The Journal of Clinical Oncology. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the claim for service connection for the cause of the Veteran's death must be denied. The Veteran's service treatment records do not show complaints, treatment, findings, or diagnoses of the metastatic gastric cancer that caused his death. The first medical evidence of metastatic gastric cancer is no earlier than June 2006, which is more than 60 years after the Veteran's separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). There is no medical evidence linking the Veteran's gastric cancer specifically to service. The Board must now determine whether the Veteran's service-connected PTSD and/or low back disability is causally related to his death from metastatic gastric cancer. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). After review of the evidence as a whole, the Board finds the evidence against the claim, especially the July 2012 and March 2013 VA opinions, to be more probative than the evidence in favor of the claim. There is no medical opinion showing that the Veteran's PTSD contributed substantially or materially to his death. There is an undated and unsigned opinion, received by VA in November 2012, in which the Veteran's degenerative joint disease is linked to bone cancer. The Board concludes, however, that this opinion is not probative in this case because it is unsigned and undated and does not include a rationale for the opinion. The VA opinions against the claim are based on a review of the claims files. Moreover, they provide supporting reasons for the opinions. These opinions conclude that the metastatic gastric cancer that caused the Veteran's death was not causally related to service or to service-connected PTSD or low back disability, to include no material influence in accelerating death by aggravation. These opinions cited to the medical findings prior to death and noted that there was no evidence in the medical literature showing a causal connection between either PTSD or low back disability and gastric cancer. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). While the appellant is competent to report her observations as to the Veteran's symptomatology prior to his death, she is not competent to opine as to an etiological relationship between the Veteran's service-connected psychiatric disability and his fatal metastatic gastric cancer. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As noted above, 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 a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected disability 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)(3), (4). Based on the above evidence, the Veteran did not have a service-connected disability that affected a vital organ and was of such severity as to have a material influence in accelerating death. In sum, the preponderance of the evidence of record fails to demonstrate that the Veteran's cause of death, metastatic gastric cancer, was related to his service in the military or to service-connected disability. Although the Board acknowledges the sincerity of the appellant's beliefs that the Veteran death is causally related to his service in the military, the Board concludes that the Veteran's military service did not cause or contribute to his death. For these foregoing reasons, the claim for service connection for the cause of the Veteran's death must be denied. In making this determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs