Citation Nr: 1327624 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 11-02 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from July 1948 to June 1950 and from October 1950 to October 1951. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denying, among other issues, the claim of entitlement to service connection for the cause of the Veteran's death. This claim was previously remanded by the Board in October 2012 and March 2013 for further evidentiary development. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012. A written transcript of this hearing has been prepared and incorporated into the evidence of record. 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). FINDINGS OF FACT 1. The Veteran passed away on June [redacted], 2010, due to hemorrhagic stroke and underlying cardiovascular disease. 2. A service-connected disability did not cause or substantially contribute to the cause of the Veteran's death. CONCLUSION OF LAW A service connected disability did not cause death or contribute substantially or materially to the cause of death. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing § 5103(a)-compliant notice. In November 2010, notice was sent to the appellant that fully complied with the requirements of Hupp, notifying her of the disabilities the Veteran was service-connected for at the time of his death, explaining the types of evidence and information necessary to substantiate a claim for DIC benefits based on these service-connected disabilities and explaining how to substantiate a DIC claim based on disabilities not yet service-connected. This letter was provided to the appellant prior to the initial adjudication of her claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the appellant prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. The Veteran's death certificate and records of VA medical treatment and private medical treatment preceding his death have also been obtained and incorporated into the claims file. The Veteran's claims file was also forwarded to a VA examiner for a medical opinion in November 2010. Addendum opinions were provided to VA in May 2011, December 2012 and April 2013. Significantly, neither the appellant nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained claim. Additionally, the Board finds there has been substantial compliance with its remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained the requested medical opinions . The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). In May 2012, the appellant was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issues on appeal and solicited information regarding the appellant's theories as to how the Veteran's death was due to service-connected disabilities. The appellant was advised of the reasons for the previous denials and of the type of evidence that could be identified or submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principle or a contributory cause of the Veteran's death. 38 C.F.R. § 3.312(a) (2012). For a service-connected disability to be the principle cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b) (2012). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially, and combined to cause death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(c)(1) (2012). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it 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. "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." 38 C.F.R. § 3.312(c)(3) (2012). Generally, minor service-connected disabilities, particularly those of a static nature, or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. 38 C.F.R. § 3.312(c)(2) (2012). "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." 38 C.F.R. § 3.312(c)(4) (2012). Facts and Analysis The Veteran passed away on June [redacted], 2010. The death certificate reflects that the immediate cause of death was a hemorrhagic stroke. Cardiovascular disease was noted to be a contributing factor. At the time of his death, the Veteran was service-connected for bilateral hearing loss (rated as 100 percent disabling), bilateral pes planus (rated as 50 percent disabling), posttraumatic stress disorder (PTSD) (rated as 50 percent disabling, degenerative arthritis of the lumbar spine (rated as 40 percent disabling), psoriasis (rated as 30 percent disabling), psoriatic arthritis (rated as 20 percent disabling), headaches (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling) and otitis externa, an appendectomy scar and malaria (all rated as 0 percent disabling). The appellant contends that service connection for the cause of the Veteran's death is warranted. Specifically, she has alleged that the hemorrhagic stroke with contributing cardiovascular disease was caused and/or aggravated by the Veteran's service-connected PTSD, including medications used to treat this condition. She has also submitted evidence demonstrating that prior to the Veteran's death, he had been diagnosed with cerebral atrophy with severe dementia. She has submitted medical treatise information explaining that advanced Alzheimer's results in significant disruption of brain function, limiting an individual's ability to think, act and remember. She also cited to a number of studies suggesting that PTSD and/or hearing loss patients have a higher risk than the normal population for developing dementia. The appellant also notes that the Veteran had a history of multiple falls while undergoing nursing home care, which may have been attributable to his severe dementia. She argues that a head injury in November 2008, which resulted in computed tomography (CT) scan findings of a small contusion in the posterosuperior right temple lobe, may have contributed to his death. Finally, she has also argued that all medications taken by the Veteran for service-connected disability, and not just PTSD, may have caused and/or contributed to the cause of death. The Veteran was hospitalized in November 2008 for repetitive falls with a small right temporal contusion. There was also a significant left temporal laceration. A CT scan revealed a right-sided temporal/parietal hemorrhage which appeared small in size. Secondary diagnoses were dementia, depression, PTSD, osteoarthritis, peripheral vascular disease and arthritis. It was noted that the Veteran had fallen twice the prior day and that he had a laceration over his left eye. A CT scan revealed no interval change of the right temporal contusion. This scan was noted to be improved over the one performed the previous day and demonstrated no acute injury. The Veteran was discharged back to the VA Medical Center's Dementia Unit in stable condition. According to a May 2010 VA treatment record, the Veteran was found unresponsive and sitting on his wheelchair pedals with his head resting on top of the table. Treatment options were discussed with the appellant, and an ischemic event or possible stroke was considered. Hospital records reveal a diagnosis of a large intraparenchymal hematoma involving the right temporal, parietal and posterior frontal lobes with a subarachnoid hemorrhage along the left frontoparietal vertex and with minimal left subfalcine herniation. There was a question of an acute infarct involving the frontoparietal vertex. Surgical intervention was initially considered, but due to the finding of methicillin resistant staphy aureus (MRSA), surgery was not performed. The Veteran ultimately passed away on June [redacted], 2010. In October 2010, the appellant submitted a statement listing a number of studies suggesting that PTSD may have an influence on the body. One such article was written by a physician with the initials J.D.B. titled "Does Stress Damage the Brain? Understanding Trauma-related Disorders from a Mind-Body Perspective." Other articles discussed the potential impact of stress on the brain. A private physician with the initials B.M.K. added a handwritten note to the bottom of the appellant's statement, indicating that she had reviewed the studies and information provided by the appellant and opined that it was as likely as not that PTSD contributed to the stroke that was the cause of the Veteran's death. No rationale or support for this opinion was provided, and Dr. K did not discuss the substance of what she reviewed. The Veteran's claims file was forwarded to a VA examiner in November 2010 for an opinion regarding the cause of the Veteran's death. The examiner reviewed the claims file, including pertinent evidence such as the Veteran's death certificate, hospital records and the handwritten statement of Dr. K. The examiner opined that the Veteran's service-connected PTSD singly or jointly with some other condition was not the immediate or underlying cause of death or etiologically related thereto. The examiner also opined that it was less likely as not that the Veteran's service-connected PTSD was a contributory cause of death. The examiner reviewed the medical literature on PTSD and stroke and a text book of medicine, and, discussed this issue with a licensed psychologist with extensive experience in the diagnosis and treatment of PTSD. The examiner also reviewed the appearance of hemorrhagic and ischemic stroke on CT scan of the brain with a board certified radiologist. The examiner admitted that while theories had been put forward, it was his own professional opinion as a physician of Internal Medicine since 1987 that there was no scientific evidence at this time directly linking PTSD to hemorrhagic stroke. The examiner also reviewed the articles submitted by the appellant, but found many of them to be anecdotal statements that were not useful in establishing a medical opinion. One such article by J.D.B. described changes of brain organ volume and neuropsychological changes, but offered no scientific evidence of neurovascular changes or link of PTSD to hemorrhagic stroke. An article authored by M.K. reported that data was conflicting regarding a link between PTSD and diabetes, coronary heart disease and stroke. Another article quoting the Journal of General Internal Medicine reported a link between PTSD, but the article did not discuss stroke. The examiner noted that the only article specifically discussing stress and ischemic (but not hemorrhagic) stroke was a Swedish study, reporting increased pre-stroke levels of stress self-reported by patients up to 10 days after a stroke. The Swedish researcher herself noted in the article that this information must be interpreted "with great caution" due to the retrospective nature of the information gathering. An addendum to the above examination report was provided in May 2011 by the same examiner. The examiner reviewed the medications taken by the Veteran to treat his PTSD and concluded that they did not contribute to his death. In formulating the opinion, the examiner reviewed the evidence of record and discussed this case with a staff pharmacist. The examiner explained that the first treatment record in which the Veteran's diagnosis of PTSD was discussed was from March 2000. He was placed on trazodone at bedtime. Follow-up visits continued with an increase in dosage. The examiner found no evidence of other medications specific to PTSD. An October 2007 record then reflects a diagnosis of "PTSD, in symptomatic remission." Trazodone was continued. Neuropsychiatric testing was then done in December 2007, resulting in a diagnosis of Alzheimer's dementia. The Veteran's medications were subsequently adjusted in April 2008 due to agitation which appeared to be secondary to dementia. It was not clear from the records when exactly trazodone was discontinued, but it was stopped before January 20, 2010, according to pharmaceutical records. The examiner explained that even if trazodone had a significant risk in regard to cerebral hemorrhage (which he stressed it did not), it had been discontinued more than 5 months prior to the Veteran's hemorrhage and death. The remainder of the psychoactive drugs appeared to have been used to treat dementia related agitation. An additional addendum was provided to VA in December 2012. This opinion was offered by a different examiner than the one that provided the previous opinions. The examiner reviewed the evidence of record and opined that it was less likely than not that the Veteran's dementia was due to or the result of his service-connected PTSD. The examiner explained that while dementia had a greater prevalence in the PTSD population, there had not been a causal relationship established. They may share some common causal relationships, but there was currently insufficient evidence that PTSD was "less likely as not causal of dementia." It was noted that hearing loss also was not known to be causally linked to dementia. The examiner further noted that the medications of trazodone, methocarbamol, gabapentin and meclizine could contribute to some medication related cognitive changes due to antihistaminic and anticholinergic properties. However, these medications had not been shown to cause dementia. The symptoms from medication side effects would overlap with the cognitive changes due to dementia, but as noted in this Veteran's case, these are reversible and not a chronic condition. There was no evidence that these medications contributed substantially or materially to the Veteran's death. The only medication of the above used for PTSD was trazodone. Methocarbomal was used for muscle spasm and gabapentin for chronic pain and meclizine for dizziness. There was also no relationship with aspirin (ASA), hydrocortisone cream, triamcinolone acetonide cream or fluocinolone acetonide and the Veteran's dementia or his cause of death. Also, topical steroids do not generally cause systemic effect to alter cardiovascular risk. The physician indicated that she agreed with the previous opinions provided in May 2011 and November 2010. Finally, an additional addendum was provided to VA in April 2013. This was provided to VA by the same examiner that provided the December 2012 opinion. The examiner opined that it was less likely as not that the Veteran's dementia was due to PTSD. The examiner explained that while dementia had a greater prevalence in the PTSD population, there has been no causal relationship established. PTSD and dementia may share some common causal relationships, but there was currently insufficient evidence to find that PTSD was at least as likely as not a causal or aggravating factor for dementia. Also, the examiner explained that the Veteran's medications taken for his PTSD (trazedone) are not known to cause dementia. The examiner also indicated that the opinions regarding medication and dementia provided in January 2013 stand. She reviewed the up to date literature in preparation of this opinion and discussed this case with a forensic psychologist when preparing an opinion in the past. The preponderance of the above evidence demonstrates that service connection for the cause of the Veteran's death is not warranted. The Veteran passed away due to a hemorrhagic stroke with cardiovascular disease as a contributing factor. The Veteran is not service-connected for either of these conditions. The Board recognizes that the appellant believes that the Veteran's PTSD either caused or aggravated his hemorrhagic stroke and/or cardiovascular disease. However, as explained by the November 2010 VA examiner, PTSD was neither the immediate or underlying cause of death, and it was less likely as not a contributing factor. The examiner explained that this was not supported in the medical literature, or with his discussions with other physicians. The Board recognizes that a handwritten statement from a Dr. K was provided to VA, and that Dr. K indicated reviewing the studies and information provided by the appellant. Having done so, she opined that it was as likely as not that PTSD contributed to the stroke that was the cause of the Veteran's death. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Dr. K provided no rationale or support for her conclusion and she did not discuss any of the facts or conclusions from the submitted studies that resulted in her opinion. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). The November 2010 VA examiner, however, discussed each individual study and explained why it failed to reflect a relationship between PTSD with hemorrhagic stroke. The examiner then offered an opinion after reviewing the medical evidence of record, the relevant medical literature and conversing with a psychologist and radiologist. In light of the VA examiner's extensive discussion, the Board finds his opinions to be more probative than the unsupported opinion of Dr. K dated October 2010. The appellant has also argued that the Veteran's PTSD and/or hearing loss (or medications he took to treat his service-connected disabilities) contributed to his severe dementia. However, the preponderance of the evidence of record is against this theory of causation. In a December 2012 addendum to the November 2010 VA examination report (provided by a different VA examiner), it was determined that it was less likely than not that the Veteran's dementia was due to or the result of his service-connected PTSD. The examiner explained that while dementia had a greater rate in the PTSD population, no actual causal relationship had been established (although they may share some common causal relationships). The examiner also noted that hearing loss had not been linked to dementia. The examiner also reviewed the medications being taken by the Veteran and concluded that they had not been shown to cause dementia. She discussed his different medications in detail and concluded that they were not known to cause dementia or cardiovascular risk, and as such, did not contribute substantially or materially to the Veteran's death. Finally, the appellant has argued that the Veteran had a history of multiple falls while undergoing nursing home care, which may have been attributable to his severe dementia. She argued that a head injury from November 2008 may have contributed to his death. The preponderance of the evidence of record undermines this theory of causation. While a hemorrhage was noted upon CT scan in November 2008, this was deemed to be small. A CT scan performed the day after the initial injury was also noted to be improved. It was not until approximately 19 months later that the Veteran ultimately suffered a hemorrhagic stroke that resulted in his death. The coroner concluded that this was due to a cardiovascular condition. There is nothing of record to suggest a possible relationship between this incident and a fall some 19 months earlier. The Board recognizes that the appellant truly believes PTSD, hearing loss or other service-connected disabilities and their associated medications caused, or contributed, to the death of the Veteran. However, the record fails to demonstrate that she has the requisite training or expertise to offer a medical opinion as complex as determining the underlying cause of a hemorrhagic stroke and/or a cardiovascular condition. When considering whether lay evidence may be 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In the present case, the VA examiners of record (who have extensive medical training) have consistently concluded that PTSD and/or hearing loss was not a cause or contributing factor in the Veteran's death. While Dr. K offered a different conclusion in October 2010, it has already been explained that this opinion is of little probative value due to the complete lack of discussion or rationale in support of this opinion. As such, the preponderance of the competent medical evidence of record reflects that a service-connected disability did not cause, or substantially contribute to, the Veteran's death. In addition to the studies dismissed as not probative by the November 2010 VA examiner, the appellant also submitted several other articles. One such article noted that VA was actively trying to prevent the spread of MRSA. While it is regrettable that the Veteran in fact acquired this infection, there is nothing to suggest that this infection contributed to the Veteran's ultimate cause of death - a hemorrhagic stroke. Another article regarding brain function and how this diminishes with Alzheimer's disease was also provided. However, this article is of no probative value to the issue at hand. It is not disputed that cognitive function diminishes with Alzheimer's disease. The Veteran was not service-connected for Alzheimer's disease, and the VA examiners of record explained that the evidence did not support a relationship between PTSD and dementia. As such, these articles fail to provide support for the claim of service connection for the cause of the Veteran's death. In summary, while the Board is extremely sympathetic to the appellant's situation, the preponderance of the evidence of record demonstrates that service connection for the cause of the Veteran's death is not warranted. The evidence of record reflects that the Veteran did not die as a result of a service-connected disability. Furthermore, multiple medical opinions reflect that PTSD and the medications taken to treat the Veteran's service-connected disabilities did not cause, or contribute, to his stroke or cardiovascular disease. Finally, the evidence of record reflects that PTSD was not a contributing factor in the eventual onset of dementia. As such, there is no basis upon which service connection can be established. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for the cause of the Veteran's death must be denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs