Citation Nr: 1327026 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-23 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida 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 D. M. ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from October 1949 to October 1952. He died in June 2008; the appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Please note 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 appellant and D.M. provided testimony at a hearing before the undersigned Veterans Law Judge in April 2013. At that time, the appellant indicated that she wished to withdraw any claim for accrued benefits that she may have on appeal. The appellant also raised the issue of entitlement to 38 U.S.C.A. § 1318 benefits during the hearing. Hearing transcript, p. 16. This matter was denied by the RO in an April 2011 rating decision. As a notice of disagreement was not filed by the appellant or her authorized representative, The American Legion, within one year of that determination, the matter of whether the claim should be reopened is referred to the RO. FINDINGS OF FACT 1. The Veteran died in June 2008 from end stage congestive heart failure, due to (or as a consequence of) end stage renal failure, due to (or as a consequence of) end stage liver failure. 2. At the time of the Veteran's death, service connection was in effect for the following disabilities: posttraumatic stress disorder (PTSD), rated as 100 percent disabling; shrapnel wound left lateral epicondyle femur, muscle injury, knee replacement, rated as 30 percent disabling; shrapnel wounds retained foreign body, left upper lung, hilar and cervical region, rated as 10 percent disabling; and shrapnel wounds buttocks, right thigh and arms, rated noncompensable. 3. The Veteran's service-connected disabilities played a substantial and or material causal role in his death. CONCLUSION OF LAW Disabilities incurred in active service caused or contributed to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, the grant of service connection for the cause of the Veteran's death constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the appellant with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. Analysis - Cause of Death Claim Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To establish service connection for the cause of the veteran's death, the evidence must show a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 West 2002); 38 C.F.R. § 3.312 (2012). In order to constitute the principal cause of death, the service-connected 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) (2012). Contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; 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. 38 C.F.R. § 3.312(c) (2012). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. At the time of the Veteran's death in June 2008, service connection was in effect for the following disabilities: PTSD, rated as 100 percent disabling; shrapnel wound left lateral epicondyle femur, muscle injury, knee replacement, rated as 30 percent disabling; shrapnel wounds retained foreign body, left upper lung, hilar and cervical region, rated as 10 percent disabling; and shrapnel wounds buttocks, right thigh and arms, rated noncompensable. Appellant testified that the Veteran's death is due to service-related disabilities inasmuch as his service-connected PTSD, shrapnel wounds to the left knee with knee replacement, and shrapnel wounds of the lung and cervical region, contributed to his death. At the hearing, the appellant testified that she would obtain additional treatment records as well as a medical opinion in support of her claim. In June 2013, the appellant submitted additional treatment records as well as an opinion from the Veteran's family physician who treated him from 1986 to the time of his death in 2008. The physician opined that the Veteran's service-connected conditions were a major contributing factor in his death inasmuch as they aggravated his congestive heart failure and end stage renal failure. He noted that the Veteran "due to multiple war injuries was given a 100% disability rating in 2004." He also noted that the Veteran was awarded a 100% rating for PTSD in 2004. The physician referenced the Veteran's post service difficulties with his left knee and his severe PTSD troubles. He explained that over the years, the Veteran was unable to exercise to any degree, and his PTSD severely affected his motivation, emotional health and sleep. He explained that the Veteran gained weight and developed diabetes, hypertension and heart disease requiring open heart surgery in 1995 with revision and 3 vessel bypass in 2003. In addition, the Veteran suffered arthritis due to the old knee injury and shrapnel wounds which led to bilateral knee replacements. Ultimately he developed congestive heart failure and renal failure shortly before his death. The physician stated that, in his professional opinion, the service-connected conditions were a "major contributing factor" to cause the Veteran's death. He stated his belief that the service-connected disabilities aggravated the congestive heart failure and end stage renal failure. The RO obtained a medical opinion from a fee-basis physician in February 2011. She opined that the congestive heart failure, end stage renal failure, and end stage liver failure were not caused by or a result of his service-connected disabilities. She indicated that review of the medical literature (UptoDate) revealed that the etiology of heart failure is due to diabetes, hypertension, coronary artery disease and obesity, not PTSD and shrapnel injuries. She also indicated that it was less likely as not that the PTSD/shrapnel injuries aggravated these conditions as his PTSD symptoms were stable prior to his recent heart failure according to review of the psychology notes one to two years before his admission for congestive heart failure in 2008. She did not provide a rationale for why the shrapnel injuries did not aggravate the congestive heart failure, renal failure and liver failure. In sum, there are two medical opinions of record which are based on a review of the history and are supported by rationale, except with respect to the fee-basis physician's opinion regarding shrapnel injuries not aggravating the congestive heart failure, renal failure and liver failure. The Veteran's physician indicated that the PTSD and shrapnel injuries rendered him unable to exercise and affected his motivation, emotional health and sleep in such a manner that he gained weight and developed hypertension, diabetes and a heart disorder. He also opined that the service-connected disorders aggravated the congestive heart failure and renal failure. Accordingly, the evidence is in equipoise as to whether a service-connected disability caused or substantially contributed to cause death and service connection for the cause of the Veteran's death is therefore warranted. ORDER Entitlement to service connection for the cause of the Veteran's death is granted. ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs