Citation Nr: 1327557 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-26 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1943 to June 1944. He died in November 2005. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in Wichita, Kansas, which denied the benefit sought on appeal. The appellant requested a Board hearing and was scheduled to appear before a Veterans Law Judge at the RO in March 2009. However, in February 2009, her representative submitted correspondence indicating that she wished to cancel her hearing. Therefore, the Board will proceed. See 38 C.F.R. § 20.702(e) (2012). In July 2011, the Board remanded the matter to the AMC for further development. The claim was returned to the Board and a request for an additional medical opinion from a Veterans' Health Administration (VHA) expert was submitted in March 2013. See 38 U.S.C.A. § 7109(a); Padgett v. Nicholson, 19 Vet. App. 133, 145 (2005); 38 C.F.R. § 20.903(a) (2012). This opinion was received in May 2013 and, following opportunity for review, the appellant's response brief was received in July 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. At the time of the Veteran's death, he was service connected for bronchiectasis, rated at 30 percent disabling, and left lobectomy, rated 30 percent disabling. 2. The Certificate of Death shows that the Veteran died in November 2005. Septicemia is recorded as the immediate cause of death, and the certifying physician clarified that poor lung condition contributed to his death in an April 2006 statement. 3. The Veteran's service-connected bronchiectasis and/or left lobectomy were not immediate or underlying of causes of death or etiologically related to an immediate or underlying cause of death; did not contribute substantially or materially to cause death or aid and lend assistance in producing death; did not result in debilitating effects and general impairment of health rendering the Veteran materially less capable of resisting death; and were not of such severity as to have a material influence in accelerating death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), the Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of the information and evidence that is necessary to substantiate the claim, what portion of the information and evidence VA will obtain, and what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, nexus, disability rating, and effective date. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Where an appellant seeks service connection for the cause of the Veteran's death, notice must include (1) a statement of the conditions, if any, for which a Veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). The RO provided the appellant with § 5103(a) notice in May 2006. In light of the denial of the appellant's cause of death claim, no disability rating or effective date will be assigned, so there can be no possibility of prejudice to the appellant under the holding in Dingess. See 19 Vet. App. at 484. The May 2006 letter included notice of the elements necessary to substantiate a cause of death claim due to a service-connected condition, but did not include a statement of the Veteran's service-connected disabilities and did not provide an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The appellant was not prejudiced by any deficiencies in the May 2006 notice letter. She is represented by a service organization familiar with her claim and the evidence needed establish entitlement to the benefits sought, and, accordingly, the arguments put forth by her representative on her behalf demonstrate actual knowledge of the information and evidence necessary to substantiate the claim on appeal. See Goodwin v. Peake, 22 Vet. App. 128 (2008). The briefs submitted on behalf of the appellant consistently assert that the Veteran's death was related to his service-connected bronchiectasis and left lobectomy, demonstrating awareness of the disabilities that were service-connected at the time of the Veteran's death. Therefore, the appellant had a meaningful opportunity to participate in the development of her claim, and she was not prejudiced by any notice error. See Overton v. Nicholson, 20 Vet. App. 427, 434-435 (2006); see also 38 U.S.C.A. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (holding that the appellant carries the burden to establish prejudice). All available relevant service records, VA treatment records, and private treatment records have been associated with the claims file. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the July 2011 remand order, the AMC was directed to obtain information and authorization necessary to obtain pertinent treatment records dated from November [redacted], 2005, to November [redacted], 2005, from the hospital providing medical care to the Veteran at the time of his death. However, as the appellant did not respond to the AMC's August 2011 letter, no further efforts to obtain these records are required. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The appellant cannot fail to authorize VA to obtain records and subsequently argue that VA should have obtained them. The July 2011 remand order also directed the AMC to obtain a medical opinion on the cause of the Veteran's death and to readjudicate the claim after all additional evidence had been obtained. In August 2011 and May 2013, VA medical opinions were obtained on whether the Veteran's service-connected bronchiectasis or left lobectomy contributed substantially or materially to cause of death or aided or lent assistance to the production of death. The medical opinions obtained demonstrate thorough review of the evidence, provide opinions responsive to the theories of entitlement raised, and include detailed explanations of the rationale for the conclusions reached. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an adequate medical opinion must provide sufficient detail for the Board to make a fully informed evaluation of whether the claim for benefits is warranted). The claim was readjudicated in a February 2012 supplemental statement of the case. The duty to assist has therefore been satisfied and there is no reasonable possibility that further assistance to the appellant by VA would be capable of substantiating her claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Furthermore, as the AMC undertook all appropriate efforts to obtain the Veteran's private treatment records, the requested medical opinions have been obtained, and the claim was readjudicated, the Board finds that there has been substantial compliance with the July 2011 remand order. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) there must be substantial compliance, not perfect compliance, which the terms of remand orders); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Because VA's duties to notify and assist and to ensure compliance with remand orders have been met, there is no prejudice to the appellant in adjudicating the appeal. II. Evidentiary Standards It is the Board's responsibility, as factfinder, to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). When analyzing lay evidence, the Board will assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). If so, the Board will evaluate the credibility of the evidence, mindful that it "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 133-437 (Fed.Cir.2006). If the Board determines that lay evidence is competent and credible, the probative value of that evidence will be weighed against the other competent and credible lay and medical evidence of record. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence of record with emphasis on the evidence relevant to this appeal. The Board must provide the reasons and bases supporting the decision but is not obligated to specifically refer to every piece of evidence or analyze and discuss the entire evidentiary record in the text of the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); 38 U.S.C.A. § 7104(d)(1). The Board has not overlooked pieces of evidence that are not explicitly discussed herein; the analysis below focuses on the most salient and relevant evidence and the elements of service connection met or not met by that evidence. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). III. Service Connection for the Cause of Veteran's Death The appellant contends that the Veteran's service-connected respiratory disabilities of bronchiectasis and left lobectomy and associated complications led to his death. The immediate cause of death listed on the Veteran's death certificate is septicemia. The Board notes that dementia is also listed as a significant condition contributing to death, not resulting in the underlying cause, but neither the appellant, her representative, nor the evidence of record raises any theory of entitlement related to this finding on the death certificate. See Robinson v. Shinseki, 557 F.3d 1355, 1361-62 (2009) (the Board is obligated to consider theories of entitlement alleged by the appellant or raised by the record). A. Governing Law and Regulations When a Veteran dies from a service-connected disability, his surviving spouse, children and/or parents are entitled to dependency and indemnity compensation (DIC). 38 U.S.C.A. § 1310. To establish entitlement to DIC for service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either principally caused or contributed substantially or materially to cause death. See 38 C.F.R. § 3.312(a). A disability will be considered the principal cause of death when it, singly or jointly with some other condition, was, or was etiologically related to, the immediate or underlying cause of death. 38 C.F.R. § 3.312(b). A disability not inherently related to the principal cause is still held to be a contributory cause of death where it substantially or materially contributed to cause death or aided or lent assistance to the production of death. 38 C.F.R. §3.312(c)(1). Disabilities affecting vital organs, presumed debilitating, are contributory causes of death where the debilitating effects and general impairment of health rendered the Veteran materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Where the primary cause of death is so overwhelming that death would have resulted regardless of the existence of the service-connected disability, the disability may nevertheless be found to be a contributory cause of death where that condition had a material influence in accelerating death because it affected a vital organ and was itself progressive or debilitating in nature. Galvagno v. Derwinski, 3 Vet. App. 118, 119 (1992); 38 3.312(c)(4). B. Review of the Evidence Here, the principal cause of death, as reported on the Veteran's death certificate, is septicemia, described as an "overwhelming infection" in an April 2006 statement submitted by the pronouncing and certifying private physician. In this statement, the private physician also noted that the Veteran was admitted to the hospital with bilateral pneumonia eight days prior to his death and identified his poor lung condition as a contributory cause of death. In an April 2006 statement, the Veteran's treating physician, and the pronouncing and certifying physician on the death certificate, explained that the Veteran was admitted to St. Joseph's Hospital with bilateral pneumonia in November 2005 and died as a result of an overwhelming infection within eight days of admission. The physician provided the opinion that "it is likely that his lungs were in poor condition contributing to his death." The Board obtained a VA medical opinion from a specialist, a pulmonologist, in May 2013. The VA pulmonologist reviewed the medical records in the Veteran's claims folder and determined that the evidence does not support finding that it was at least as likely as not that bronchiectasis or lobectomy caused, contributed to the cause, or had a material influence on accelerating the death of the Veteran. Instead, he found that the cause of death reported was septicemia due to rapidly progressing bilateral pneumonia, a diagnosis and type of fulminant course leading to death that is a common clinical problem in 80 year old men even where there is no history of respiratory diagnosis. The pulmonologist reviewed the records dated from the time of the Veteran's death and noted that phone records from October 2005 show that the family reported that the Veteran was weak, could not stand, and was admitted to the hospital. Phone reports from November 2005 show that the Veteran was transferred to a nursing home but was shortly transferred back to the hospital with pneumonia. Lastly, the opinion summarized the private physician's explanation that the Veteran passed away from overwhelming infection eight days following admission to the hospital with pneumonia and that it was likely that the Veteran's lungs were in poor condition contributing to his death, but also notes that no further data or information is provided to support this opinion. The VA pulmonologist also reviewed the relevant medical history of the Veteran's service-connected disabilities, including the lobectomy, or removal, of the lower lobe of the left lung, performed in 1949, and explained that while approximately 15 to 20 percent of the functioning lung that would have been available in his pre-illness healthy state was removed, lung function data following the operation in 1950 was normal. The opinion also contains an individual explanation for each of the examiner's four specific findings. The VA medical expert explained that the Veteran's service-connected bronchiectasis or a left lobectomy were not etiologically related to the immediate or underlying cause of his death because no related symptoms were reported during the 56 years between his lobectomy and death, including records dated immediately after the surgery and records dated from May 2005 to September 2005. That opinion is based on medical records showing respiratory improvement after the October 1949 lobectomy; the lack of respiratory symptoms reported in records dated from November 1950 or February 1951; medical records from January 1960 showing one instance of diagnosis, treatment, and subsequent improvement of bronchitis; and the lack of any mention of respiratory symptoms or any respiratory examination abnormality in the medical records dating from May 2005 to September 2005. The VA pulmonologist noted that it is unfortunate that records are not available for the years between 1960 and 2005. However, he explained that medical records showing symptoms and treatment would exist if the Veteran had suffered ongoing respiratory problems during that time, and, consequently, the absence of these records suggests that it is very unlikely that the Veteran was suffering ongoing or debilitating respiratory infections over that time period. The VA pulmonologist also found that it is less likely than not that bronchiectasis and lobectomy contributed substantially or materially to the Veteran's death, combined to cause death, or aided or lent assistance to the production of death because there is no evidence in the record to support the existence of any active problems relating to the Veteran's bronchiectasis and lobectomy, and, therefore, it is unlikely that the Veteran's historical bronchiectasis and lobectomy were active problems over the decades prior to his death. He explained that it is very unlikely that an infection, having been absent for decades, would suddenly surface and cause a rapidly advancing bilateral pneumonia leading to the Veteran's death. Additionally, the VA pulmonologist found that there is no evidence that the Veteran suffered debilitating effects or general impairment of health such that he would be materially less capable of resisting the effects of the disease causing his death as a result of his service-connected respiratory disabilities as there is no evidence over the decades between his lobectomy and the pneumonia episode leading to the Veteran's death showing that he suffered any symptoms or continued adverse consequences of the historical bronchiectasis and lobectomy. Lastly, the VA pulmonologist found that it was less likely than not that the Veteran's service-connected respiratory condition of bronchiectasis and lobectomy were of such severity as to have a material influence on accelerating death as no significant impairment of respiratory function is documented. Rather, he explained that the vital capacity data obtained in 1950, the only measurement of lung function in the record, was normal, and the only respiratory symptoms noted were the cough and right lower posterior rales related to the episode of bronchitis in 1960, which was successfully treated. A VA medical examiner reviewed the claims folder in August 2011 and also determined that the Veteran's service-connected bronchiectasis or left lobectomy less likely than not contributed substantially to his death. The examiner noted that while a less common alternative presentation of "dry bronchiectasis" discussed in the older medical literature, bronchiectasis is classically clinically manifested by cough and the daily production of mucopurulent and tenacious sputum lasting months to years. Other less specific complaints of bronchiectasis include dyspnea, wheezing, and pleuritic chest pains. The examiner explained that patients often report frequent bouts of bronchitis with repeated courses of antibiotics, and a general history of repeated respiratory tract infections over several years is often seen. The examiner also summarized a retrospective chart review of 103 patients with bronchiectasis who presented to a referral center. The most common associated clinical findings were, in order of frequency, cough, daily sputum production, dyspnea, rhinosinusitis, hemoptysis, and recurrent pleurisy, and the most common physical findings were crackles and wheezing. The examiner found that there were no reports suggesting the existence any of the listed symptoms from the Veteran or his family. Rather, the examiner explained, the Veteran was newly admitted to the nursing home and most likely developed a community-acquired pneumonia that progressed to sepsis and developed multi-system failure following admission to the hospital due to his age and generalized weakened condition, causing his death. C. Factual Findings The Board finds that the May 2013 VA medical opinion provided by the VHA pulmonologist and the opinion provided by the August 2011 VA examiner outweigh any support for the appellant's claim provided by the April 2006 statement from the private treating physician. Parrish v. Shinseki, 24 Vet. App. 391 (2011) (the Board may favor the opinion of one competent medical expert over another as long as it articulates understandable and valid reasons for doing so); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (the Board must weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection). Treating physicians are presumed to have detailed knowledge of the Veteran's medical history. Nieves-Rodriguez at 302-04. However, the opinion provided by the Veteran's private physician states only that the Veteran's poor lung condition contributed to his death; it does not relate the cause of his poor lung condition at the time of admission to his service-connected bronchiectasis or left lobectomy. Additionally, the April 2006 private medical opinion consists of a conclusory statement without any explanation of the underlying basis for the opinion and, consequently, has less probative weight than the opinions provided by the VA medical specialist and VA examiner. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Polovik v. Shinseki, 23 Vet. App. 48, 54 (2009). The opinions provided by the VA pulmonologist and VA examiner are thorough, detailed, and well-supported, and the opinion provided by the pulmonologist is supported by his relevant medical expertise. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (holding that a medical expert opinion must rest on correct facts and reasoned medical judgment); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches."). To the extent that either VA medical opinion relies on a lack of documented respiratory problems in the available medical records in the claims folder, medical experts may permissibly rely on the absence of an entry in a record as evidence against the existence of a fact if it would ordinarily be recorded, and here the pulmonologist specifically explained that there would normally be documented medical evidence of ongoing respiratory systems related to bronchiectasis and a lobectomy. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000) (the Board may consider the absence of medical complaints or treatment over prolonged periods). Therefore, the Board finds that the VA medical opinions of record are more probative than the opinion provided by the private physician. The Board notes that the appellant's representative has communicated the appellant's conviction that the Veteran's death is related to his service-connected respiratory disabilities, but, as a layperson, she is not competent to provide an opinion on the existence of a relationship between the Veteran's history of bronchiectasis or left lobectomy and his death as the question of any relationship between respiratory disorders diagnosed and treated in the 1940s and the cause of death in 2005 is a complex medical determination that the Board determined required specialized expertise even beyond the general medical expertise of the August 2011 VA examiner. Jandreau, 492 F.3d at 1376-77 (holding that whether lay evidence is competent is a fact issue to be addressed by the Board). She is competent to testify to the Veteran's symptoms, but has not asserted that the Veteran experienced respiratory symptoms following the 1949 lobectomy. D. Conclusion The evidence does not show that the Veteran's service-connected bronchiectasis or left lobectomy were etiologically related to an immediate or underlying of cause of death, contributed substantially or materially to cause death, resulted in debilitating effects and general impairment of health rendering the Veteran materially less capable of resisting death, or were of such severity as to have a material influence on death. Rather, the preponderance of the evidence shows that the Veteran did not experience ongoing residual respiratory disability following the 1949 lobectomy, bronchiectasis or left lobectomy were unlikely related to the Veteran's pneumonia and subsequent death, and that the Veteran's pneumonia was likely a community-acquired infection that developed into sepsis leading to multi-system failure and death. As the evidence does not establish a link between the Veteran's service-connected disabilities and his death under the applicable legal criteria, the claim for service connection for the cause of the Veteran's death must be denied. See 38 C.F.R. § 3.312. As the preponderance of the evidence is against the appellant's claim, there is no doubt to resolve in her favor, and the application of the benefit-of-doubt-rule is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs