Citation Nr: 1326045 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-03 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from July 1950 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, NC. The appellant subsequently relocated and jurisdiction of the appeal is now with the Oakland, California, RO. The appellant and her daughter testified before the undersigned Veterans Law Judge at a videoconference hearing in December 2012. Thereafter, the appellant submitted additional evidence directly to the Board that was accompanied by a waiver of initial RO review. In March 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in April 2013. In May 2013 the Board informed the appellant and her representative that it had requested a specialist's opinion in conjunction with the adjudication of her appeal, provided her a copy of that opinion and indicated that she was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In response, in July 2013 the appellant's representative offered further argument in support of her appeal. Accordingly, the Board will proceed with the consideration of her case. FINDINGS OF FACT 1. The Veteran died on November [redacted], 2005. 2. The cause of the Veteran's death, as shown on the death certificate, was chronic obstructive pulmonary disease (COPD), due to arteriosclerotic cardiovascular disease. 3. At the time of the Veteran's death, service connection was in effect for a right lateral meniscectomy with chondromalacia and postoperative excision of a cyst, right tibia with bone graft. 4. Cardiovascular disease did not manifest during service or within one year of separation from service, and is not shown to be causally related to service or proximately due to or the result of a service-connected disease or injury. 5. The preponderance of the evidence shows that a disability of service origin, to include the Veteran's service-connected right lateral meniscectomy with chondromalacia and postoperative excision of a cyst, right tibia with bone graft, and in-service subarachnoid hemorrhage, did not cause or hasten his death, or contribute substantially or materially to result in his death. CONCLUSION OF LAW A service-connected disability did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. § 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notice should inform the claimant about the information and evidence not of record that is necessary to substantiate the claim. It should also inform the claimant about the information and evidence that VA will seek to provide, and the information and evidence the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. By letters dated in October 2007 and May 2009, the appellant was notified of the evidence necessary to substantiate her claim. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. The May 2009 letter identified the disorders for which the Veteran was service-connected for at the time of his death, as required by Hupp. To the extent that notice as required by Hupp was sent after the initial adjudication of this claim, the claim was readjudicated following the May 2009 notification letter by way of a supplemental statement of the case (SSOC) issued in June 2009. This cures the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained, with the exception of some service treatment records for which the RO made a formal finding of unavailability in October 2006. There is no indication of any additional, relevant records that the RO failed to obtain and the Board solicited an expert medical opinion from a VHA specialist in adjudicating this appeal. Further, the appellant was allowed sufficient time to submit additional argument and evidence following the most recent VA medical opinion that was provided in April 2013, but did not do so. The Board finds the duties to notify and assist have been fulfilled and no further action is necessary under the mandate of the VCAA. II. Cause of Death In this case, the appellant seeks to establish service connection for the cause of the Veteran's death. She contends that the Veteran's in-service subarachnoid hemorrhage caused or contributed to his death. Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312. Service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112. A service-connected disability is the principal cause of death when that 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 one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). 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. Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for certain chronic diseases, including cardiovascular renal disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran died in November 2005. The death certificate lists the cause of death as COPD as due to arteriosclerotic cardiovascular disease. At the time of the Veteran's death, service connection was not in effect for COPD or arteriosclerotic cardiovascular disease. Service connection was in effect for right lateral meniscectomy with chondromalacia, evaluated as 10 percent disabling, and postoperative excision of a cyst, right tibia with bone graft, evaluated as noncompensable (0 percent). The service-connected disabilities were not were not noted on the death certificate as being primary or contributing causes of death. The available service treatment records show that in September 1953 the Veteran had a hemorrhage, subarachnoid, secondary to a probable cerebral aneurysm. At August 1954 and July 1964 examinations the extremities were normal, and the Veteran was normal from a neurological standpoint. In May 1966 the Veteran had right knee surgery for a unicameral bone cyst. In April 1969 he was diagnosed with a right discoid or torn lateral meniscus after three to four months of knee pain, and he underwent a right lateral meniscectomy. At November 1966 and March 1970 examinations, the upper extremities were normal. The Veteran was normal from a neurological standpoint and his lower extremities were normal except for surgical scars on the right knee. An x-ray from a July 1971 VA examination showed early pulmonary emphysema. VA post-service treatment records state that following the 1953 cerebral hemorrhage the Veteran had left sided weakness that resolved after six months. In 1985 the Veteran suffered a myocardial infarction and underwent the installation of a pacemaker and a coronary artery bypass graft. A CT scan of the head from May 2005 private treatment taken due to acute neurologic deficit showed no evidence of acute infarction or parenchymal hemorrhage and a dense left middle cerebral artery concerning for thrombus. A CT scan from the following day showed no acute abnormality and an old right parietal lobe infarction. The Veteran's daughter competently testified at the December 2012 hearing that subsequent to the 1953 stroke, the Veteran suffered from recurrent left lower extremity weakness. She also testified that there were years when he did well and that there were also some very bad times due to his health. The Veteran had paralysis and pain in his left leg. She further testified that as a result of the paralysis the Veteran had surgery on the left knee in 1964 at West Point and surgery on the right knee in 1967, which the surgeon said was necessitated due to favoring the right lower extremity. The Veteran suffered a stroke in May 2005 and had another one before his death in November 2005. Medical literature regarding strokes and heart disease has also been submitted. An opinion from a VHA specialist was provided in April 2013. The physician felt that the Veteran's death was unrelated to the subarachnoid hemorrhage from active service. It was noted that the treatment records subsequent to 1953 do not mention any neurologic deficits. At the 1971 VA examination the Veteran's gait was normal and it was noted that he walked well on his tiptoes and heels. A chest x-ray also showed early emphysema. Further, the Veteran had multiple medical problems, including coronary artery disease and an inferior myocardial infarction in January 1985, followed by coronary artery bypass surgery and placement of a permanent pacemaker. When the Veteran was admitted to the hospital in 1985, it was noted that he had a cerebral hemorrhage with left side weakness in 1953 that resolved in six months. The Veteran had smoked for 30 years prior to 1985, and the physical examination from the time notes that the sensory and motor systems were intact. It was also noted that the CT scan of the head showed no evidence of acute infarction or parenchymal hemorrhage. The physician wrote that the medical literature in the record did not show evidence that a remote history of a subarachnoid hemorrhage is related to subsequent heart disease or stroke. Specifically, the medical literature indicated that cardiac disturbances from subarachnoid hemorrhages were transient, and the studies did not explore the risk of death beyond 15 years after the subarachnoid hemorrhage. Having carefully reviewed the claims file, the Board determines that the preponderance of the evidence is against a finding of service connection for the cause of the Veteran's death. The Veteran's death certificate lists COPD as due to arteriosclerotic cardiovascular disease as the cause of death. The appellant has not contended, nor is there a factual basis in the record, that COPD or arteriosclerotic cardiovascular disease were incurred during service, or that the latter manifested as chronic diseases within a year after the Veteran's discharge from service. The record does not show cardiovascular disease prior to 1985, and therefore it cannot be presumed to have been of service origin. See 38 C.F.R. §§ 3.307, 3.309. The record shows that the Veteran smoked during his military service and that a 1971 x-ray showed early emphysema. The law provides that, for claims filed after June 9, 1998, as in the instant case, service connection may not be granted for on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service. See 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300 (2012). The Board next finds that the preponderance of the evidence is against the appellant's contention that the Veteran's subarachnoid hemorrhage contributed substantially or materially to death or aided or lent assistance to his death. The death certificate does not show that it contributed to the Veteran's death. Further, the preponderance of the evidence shows that neither subarachnoid hemorrhage nor the Veteran's service-connected disabilities are otherwise shown by competent medical evidence to have caused or materially contributed to his death. The Board acknowledges the appellant's daughter's testimony regarding the Veteran having left leg weakness and paralysis. While the testimony shows that the Veteran had symptoms after 1952, the VA physician's opinions are competent and highly probative as the question of causal nexus in this case because they were based on her medical experience and expertise, review of medical literature, and upon a complete review of the Veteran's entire claims file. Also, the opinions were supported with clear and well-reasoned rationales. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The appellant has not provided any competent medical evidence to rebut these opinions or otherwise diminish their probative value. As such, the appellant's lay opinion that the subarachnoid hemorrhage directly caused or contributed to the Veteran's death is outweighed by the more probative medical evidence that indicates otherwise. Cf. Davidson, 581 at 1316. The appellant's contentions as to the Veteran's cause of death, based upon her own beliefs and her familiarity with his medical history, have been considered. The Board, however, find that VA physician's opinions outweigh her lay assertions regarding the cause of the Veteran's death. The matter at hand involves complex medical assessments that require medical expertise. The record does not show that the appellant has received the requisite formal medical training and accreditation necessary to make medical diagnoses or present opinions regarding complex medical issues. See Jandreau, 492 F.3d at 1376-77. As the COPD and heart condition that caused the Veteran's death were not shown in service and as the preponderance of the evidence is against finding that the any of Veteran's service-connected disabilities caused or materially contributed to his death, service connection for the cause of death must be denied. In reaching this determination, the Board does not wish in any way to diminish the Veteran's lengthy military service. Although the Board is sympathetic to the appellant's claim, because the preponderance of the competent and probative evidence is against a grant of service connection for the cause of the Veteran's death, the Board it is without authority to grant his claim on an equitable basis, and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs