Citation Nr: 1324229 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 96-06 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Navy from October 1942 to January 1946. The Veteran died in June 1971; the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 1995 rating decision by the New York, New York, Regional Office of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection for the cause of death under 38 U.S.C.A. § 1151. The procedural history of the claim is quite protracted. The claim was initially denied in September 1976, and was confirmed in October 1976. The appellant renewed her claim in April 1994, in light of the decision in Brown v. Gardner, 513 U.S. 115 (1994), which found that no element of fault on the part of VA applied to 38 U.S.C.A. § 1151 claims filed prior to October 1, 1997. Although a timely notice of disagreement (NOD) was filed in September 1995, no statement of the case was issued until June 2002; the appellant perfected her appeal that same month. Following a July 2002 Board remand for scheduling of a personal hearing, which was cancelled at the appellant's request, the Board in December 2002 denied entitlement to the benefit sought. The appellant appealed the denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which in an October 2005 memorandum decision vacated the Board's decision and remanded the matter for provision of proper notice and assistance under current law. The Board in turn remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC. The case was returned to the Board in September 2009, when entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death was again denied. The appellant again appealed to the Court. In February 2011, on the basis of a Joint Motion for Remand, the CAVC again vacated the Board's decision and remanded the matter. The Board then remanded the matter to the AMC for compliance with the Court's directive, to include provision of focused notice regarding the applicable version of the governing statute. The matter has now been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran's death is a result of occlusive coronary arteriosclerosis, with old thrombosis/cardiomegaly, calcific aortic stenosis, and generalized arteriosclerosis. 2. Burns to the back and legs sustained in the course of post-operative VA treatment were coincident to the Veteran's death, and did not cause or materially affect his death. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death are not met. 38 U.S.C.A. § 1151 (West 1991); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.358 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Most recently, an October 2011 letter satisfied the duty to notify provisions, informing the appellant of the five elements of a service connection claim, identifying the evidence necessary to substantiate a claim, and setting forth the relative duties of VA and the claimant to secure evidence. Importantly, and in correction of earlier correspondence, the letter identified and explained the correct statute provisions applicable to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a February 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The appellant has not indicated, and the record does not contain evidence, that the Veteran was in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). No VA medical opinion has been obtained; examination was not, of course, possible in light of the Veteran's death. A private autopsy was conducted, however, and the results of such are of record. An opinion is required only where such assistance is reasonable and necessary to help a claimant substantiate the claim. Assistance is not required where no reasonable possibility exists that the assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(d); De La Rosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). As is discussed in greater detail below, the appellant has presented no competent and credible evidence in support of her bare allegation that burns sustained during VA care contributed to the Veteran's death. Contemporaneous existence is not sufficient to give rise to a reasonable possibility of substantiating the claim in the context of a claim regarding the cause of death. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis During the course of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151 were amended. In a precedent opinion, VA's General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to that date. See VAOPGCPREC 40-97 (Dec. 31, 1997). The appellant's claim was received in April 1994. At that time 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation...awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such Veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991). In 1991, the Court invalidated a portion of the regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.358(c)(3). Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd, Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). The United States Supreme Court (Supreme Court) in affirming the Court's decision held that the statutory language simply required a causal connection between VA hospitalization and additional disability and that there need be no identification of "fault" on the part of VA, as was required by the implementing regulation. The decision in the Gardner case, supra, is what prompted the appellant to seek reconsideration of her claim. In March 1995, VA published amended regulations to conform to the Supreme Court decision. The revised provisions provide that for claims filed prior to October 1, 1997, where it is determined that there is additional disability resulting from an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for the additional disability. 38 C.F.R. § 3.358. It is this regulation which is effectively applicable to the appellant's claim, as it does not reflect any "fault" requirement, and requires only a causal connection between VA treatment and the Veteran's death. In determining that additional disability exists, a Veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. 38 C.F.R. § 3.358(b)(1). Compensation is not payable for the continuance or natural progress of disease or injuries unless VA failed to exercise reasonable skill and care to prevent such advancement. 38 C.F.R. § 3.358(b)(2). It is necessary for the Veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as a result of VA hospitalization, medical or surgical treatment or examination, and not merely coincidental therewith. 38 C.F.R. § 3.358(c)(1). The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(2). Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the Veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). Dependency and indemnity compensation (DIC) is paid for the cause of a Veteran's death when the evidence shows that a disability for which VA compensation is awarded was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death the disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b) . 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 the 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). The record is clear that the Veteran did undergo VA treatment; in February 1971 the Veteran underwent bypass surgery to ameliorate or correct his ongoing cardiac problems. The Veteran signed an informed consent form, and the operative reports indicate that the surgery went well. Following surgery, the Veteran was placed in or on a hyperthermic blanket to maintain his body temperature as he recovered from anesthesia. However, whether due to human error or a malfunction of the blanket, the temperature was too high or exposure too prolonged, and the Veteran sustained burns of the sacral area of the back, legs and right foot, resulting in ulcers, which required further treatment. VA treatment records indicate that the lesions were responding well to treatment and healing; no infection or other complications were noted. See treatment record of May 30,1971. The Veteran did have complications from his heart surgery, and remained hospitalized until June 1971, when he was released to home on a weekend pass; he died two days after leaving the hospital. The medical examiner who initially reviewed the case noted the history of open heart surgery at the VA hospital. He also noted, based on the appellant's accurate reports, third degree burns of the lower back and extremities from a hyperthermic blanket. He stated the burns totaled no more than about five percent of the body. The burn areas were observed, without description, and the request for an autopsy was noted. A private autopsy was performed at the request of the appellant, by Dr. JFD; Dr. JFD also completed the Veteran's death certificate. The doctor noted the Veteran's surgical scars, related to his cardiac procedures. He also noted an ulcerating granulating lesion on the right foot, measuring two square inches. An encrusted lesion was noted immediately above it, as well as similar lesions on the knee. The examiner stated that these were "old burns secondary to an electric blanket." Scar decubiti (ulcers) of the sacral region of the back were observed. Following a full examination of the Veteran's body, Dr. JFD indicated diagnoses of severe cardiomegaly with calcific aortic stenosis; generalized arteriosclerosis; occlusive arteriosclerosis with old thrombosis; pulmonary edema and congestion; and chronic passive congestion of the liver and spleen. On the death certificate, the doctor listed only the first three diagnoses; all appear to be part of the primary or immediate cause of the Veteran's death. Dr. JFD did not indicate that the back and lower extremity burns played any role at all in the Veteran's death. The record reveals that the appellant brought a tort suit against the government in connection with the burns suffered by the Veteran during his post-operative recovery. The claim was settled in March 1976 for the amount of $7,000.00. The appellant has consistently made the same allegation in connection with her repeated claims of entitlement to compensation benefits for the cause of the Veteran's death under 38 U.S.C.A. § 1151 and its predecessor, 38 U.S.C.A. § 351. She maintains that the burns sustained in post-operative recovery contributed to the Veteran's death in a material way. However, she has provided no rationale for her belief, or proffered any evidence in support of such. It is clear that the Veteran received VA treatment, and equally clear that he sustained an additional disability, the burns, as a result of or in connection with that treatment. The medical evidence of record, including the extensive VA treatment records documenting the Veteran's cardiac conditions, the medical examiner's initial opinion, and the private autopsy report, are all in agreement that it was the nonservice-connected heart disease, in all its manifestations, which was the immediate cause of the Veteran's death. While all doctors note the presence of the healing burn lesions, and acknowledge the seriousness of the initial wounds, none indicate in any way that these injuries played a role in the Veteran's death. References to the lesions are merely incidental findings describing the Veteran's physical condition and appearance. Records reflect that they were responding to treatment and healing well; while the burns were serious, there is no contemporaneous indication of any systemic problem such as infection. The appellant is adamant in her belief that the burns did contribute to death. Unfortunately, the appellant is not a medical professional or otherwise in possession of any specialized knowledge or training which would render her competent to render an opinion on the cause of the Veteran's death. She is also not reporting the findings of a competent professional; she has expressed her own conviction and belief. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This is not a situation where a directly observable cause and effect relationship is reported, as with an explosion or gunshot wound. Layno v. Brown, 6 Vet. App. 465 (1994). The appellant's belief is simply not competent evidence that the lower extremity and back burns played a role in the Veteran's death, and is therefore not entitled to any probative weight. There is therefore no competent evidence of any kind associated with the record which raises even the possibility of a nexus between the Veteran's VA treatment-related burns and his death. There is a complete absence of any evidence of a nexus between the burns and the Veteran's death. It is true that the compensation system is considered uniquely pro-Veteran. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). However, in the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The claimant still ultimately bears some burden of production. 38 U.S.C.A. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between the burns sustained in connection with 1971 VA treatment and the Veteran's death, entitlement to the benefit sought is not warranted. (Continued on next page.) ORDER Compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs