Citation Nr: 1327644 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-10 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and C.P. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1944 to January 1946 and from January 1946 to March 1947. The Veteran died in July 2008. The Appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO) and Pension Center, wherein the RO reopened and denied the claim for service connection for cause of the Veteran's death. Jurisdiction over the claim remains with the Detroit, Michigan RO. The Appellant testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in September 2012. A transcript of that hearing has been associated with the claims file. The Board notes further that the United States Court of Appeals for Veterans Claims (Court) in Bryant v. Shinseki, 23 Vet. App. 488 (2010), held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. To the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the Appellant nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the 2012 Board hearing. In December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain additional records and a VA medical opinion. The action specified in the December 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 died on July [redacted], 2008; dementia with aphasia and apraxia was certified as the cause of death. 2. At the time of the Veteran's death, service connection was in effect for an appendectomy scar, which was rated as non-compensable since March 15, 1947. 3. The cause of the Veteran's death is not related to his service-connected appendectomy scar. 4. The competent medical evidence indicates that the cause of the Veteran's death is not related to his active military service. CONCLUSION OF LAW The cause of the Veteran's death was not due to a disability incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection for the Cause of the Veteran's Death Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). However, the Board notes that a Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service 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 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). 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 a service-connected disability had a 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). It is not sufficient to show that a service-connected disability casually shared in producing death, rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). However, if the service-connected disability affected a vital organ, 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. See 38 C.F.R. § 3.312(c)(3). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Veteran died in July 2008 at the age of 83. The Appellant contends that the Veteran's death was due to his peripheral vascular disease, which she alleges began during his active service. Although the Veteran was not service connected for this disability at the time of his death, the Appellant has argued that service connection for peripheral vascular disease should have been granted. The Certificate of Death establishes that the immediate cause of death was due to or a consequence of dementia with aphasia, apraxia. The Certificate of Death also noted that tobacco use did not contribute to death. At the time of his death, the Veteran was service connected for an appendectomy scar. Service treatment reports reflect that the Veteran had an appendectomy in service with a residual scar noted at separation and did not reflect any findings related to dementia, lower extremity problems or peripheral vascular disease during the Veteran's active service. Private medical records from September 2003 to June 2008 reflect that the Veteran was variously treated for and diagnosed with dementia, Alzheimer's dementia, Alzheimer's disease, early vascular dementia, dementia or "dementis" with aphesis and apraxias, mixed dementia probably Alzheimer's and vascular, peripheral vascular disease, and right upper extremity deep vein thrombosis. The etiology of these disabilities is not provided. These records also note on several occasions that the Veteran had a history of smoking cigars. For example, a January 2008 neurology consultation note by Dr. M.M.A. records that "[The Veteran's] wife said that he used to smoke cigars on and off. Nothing recent; no alcohol abuse." A February 2008 pulmonary consultation by Dr. S.A.A. notes a "remote history of tobacco abuse." Dr. V.R., the Veteran's primary care physician, notes in 2007 that the Veteran used to smoke cigars, but quit in 1990. In is unclear from the available medical records the extent of the Veteran's smoking habit. An April 2005 private Doppler imaging report revealed evidence of bilateral femoral popliteal and infrapopliteal arterial disease. In a July 2005 letter, the Veteran's private physician, Dr. M.S.L., reported that the Veteran had evidence of lower extremity peripheral vascular occlusive disease. In another July 2005 letter, Dr. M.S.L., reported that the Veteran was found to have evidence of lower extremity peripheral occlusive disease, as noted per his earlier letter, and that it was his medical opinion that the development of this lower extremity vascular disease was at least as likely as not related to or aggravated by his military service. No explanation for this opinion was provided. A July 2005 letter from the Veteran's counselor reflects that she reported the Veteran had stated to her that he was diagnosed with lower extremity peripheral vascular occlusive disease and he felt that this began during his military service, but he was never treated for leg pain in service. The counselor also requested an opinion relating the Veteran's peripheral vascular disease to his military service. In a July 2011 letter, Dr. M.S.L. furnished an opinion in which he reported the Veteran had passed away due to complications of advanced dementia and the Veteran's diagnosis had been dementia, Alzheimer's type. He also noted the Veteran had a history of peripheral vascular disease and that he served many years in the military where it was routine to provide soldiers with free cigarettes and where the Veteran was likely exposed to second-hand smoke. Dr. M.S.L. stated that, although the Veteran was not formally diagnosed with vascular dementia, it would be impossible to exclude this as a contributing cause to his severe progressive dementia. He then found that, given the Veteran's history of vascular disease, it was quite likely there was a component of cerebral vascular disease and it could be difficult to exclude or differentiate between vascular dementia and dementia of Alzheimer's type. Dr. M.S.L. therefore opined that it was his belief that exposures during the Veteran's time serving in the military may have played a role in his eventual development of dementia which ultimately led to his death (emphasis added). During a September 2012 video conference hearing, the Appellant asserted that the Veteran's peripheral vascular disease is what led to his death and that he should have been service connected for that disability. She reported that, at the time of the Veteran's death, his doctor said he passed away from vascular disease. She also noted that Dr. M.S.L. provided a medical opinion that second-hand smoke exposure during the Veteran's military led to his peripheral vascular disease. The Appellant testified that the Veteran never smoked a day in his life and there was no other opportunity that he was exposed to smoke. She stated that she married the Veteran in 1987, at which time he had peripheral vascular disease and he had told her that it started in service. The Appellant further testified that she had known the Veteran for four years prior to their marriage and that he had peripheral vascular disease since that time and was under a physician's care for such. Finally, the Appellant reported that the Veteran had told her that he was exposed to a lot of smoke working as a truck driver during his active service. In June 2013, VA obtained a medical opinion from a VA vascular surgeon. After reviewing the available record, the surgeon concluded that it was less likely than not that the Veteran's peripheral vascular disease had onset in service, that the disability was caused by an incident or event in service, to include passive or second-hand smoke exposure, or that it contributed substantially or materially to the Veteran's death. As the Veteran served during a period of combat, the examiner was willing to concede that the Veteran was probably exposed to at least some passive smoking. He further noted that epidemiological studies have indicated that prolonged exposure to second-hand smoke is related to a higher incidence of vascular disease. However, the surgeon explained that epidemiological studies showing a general relationship between second-hand smoke and higher incidence of vascular disease do not prove that the Veteran in this specific case developed peripheral vascular disease because of exposure to second-hand smoke in service. Indeed, given the Veteran's limited period of service, the surgeon concluded that it was less likely than not that the Veteran developed peripheral vascular disease based on exposure to second-hand smoking for only two and a half years in service. The examiner also opined that contrary to the finding noted on the Death Certificate, the Veteran's death was not due to dementia. The examiner noted that the Veteran was in extremely poor health at the time of his death due to a number of serious conditions, including coronary artery disease, severe malnutrition and wasting, recurrent pneumonia and lung abscess, abdominal ileus, and Parkinsonism. He did not therefore believe that the Veteran's dementia was the most likely cause of death. However, even assuming that dementia was the cause of death, the surgeon explained that although the Veteran's cigar smoking could have contributed to cerebrovascular disease, which in turn contributed to the deterioration of the Veteran's brain function secondary to a 2004 lacunar infarct, the Veteran was already diagnosed with dementia prior to that time. In sum, the surgeon concluded that the Veteran's peripheral vascular disease did not cause or substantially or materially contribute to the cause of the Veteran's death. Based upon all the evidence, the Board finds that entitlement to service connection for the cause of the Veteran's death must be denied. While the Veteran before his death apparently told others, including his spouse and a counselor that his peripheral vascular disease had onset in service, his claim is contrary to the contemporaneous medical evidence, which shows that the Veteran was in good health at separation from service, with no evidence of any vascular disease or dementia. Rather the available medical evidence reflects that the Veteran's peripheral vascular disease and dementia did not develop until more than fifty years after separation from service. The Board finds that these contemporaneous medical records are more probative than the Veteran's accounts of his medical history, particularly since some of those accounts may have been made after the Veteran began suffering from dementia. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Board has also considered the testimony of the Appellant that the Veteran suffered from peripheral vascular disease as long as she knew him; however, the Board must unfortunately find that the Appellant is not a reliable historian. The Board notes that the Appellant testified at her hearing that the Veteran never smoked a day in his life, when multiple medical records reflect that the Veteran smoked cigars and did not end his tobacco use until many years after service. Significantly, this evidence includes a medical record in which the Appellant herself is noted to have reported that the Veteran smoked cigars. This contrary evidence clearly diminishes the credibility of the Appellant's testimony. At best, the Appellant has offered testimony concerning matters about which she has limited personal knowledge and has relied on second-hand accounts of the Veteran's medical history that may be unreliable. The Appellant has asserted throughout the course of this appeal that the Veteran's death is related to his military service. Unfortunately, however sincere her belief may be, she has not demonstrated that she has any knowledge or training in determining the etiology of such conditions. In other words, she is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Appellant seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran death was due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Appellant's opinion of the Veteran's cause of death is not competent evidence and is entitled to low probative weight. Competent medical evidence is required to determine whether the Veteran's cause of death is service-related. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: 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. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board gives greater weight to the opinion of the VA examiner who reviewed the Veteran's entire claims file and provided an opinion that was supported by a detailed and thorough rationale. Furthermore, the VA examiner is a vascular surgeon, and thus is particularly knowledgeable about vascular diseases and their etiology and effects. While the Board has considered that Dr. M.S.L. was one of the Veteran's treating physician for a number of years, unfortunately, the Board must find that his opinions have limited probative value. His July 2005 opinion includes no explanation of why he reached his conclusion. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. M.S.L.'s July 2011 opinion is no better, as it is highly speculative and concludes only that the Veteran's dementia may have been caused by his military service. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In sum, any connection between the Veteran's military service, his subsequent development of peripheral vascular disease and dementia, and his death approximately sixty years after service is tenuous at best. Even if the Board assumes that the Veteran was exposed to at least some second-hand smoke during his military service, the preponderance of the evidence is against a finding that this caused his peripheral vascular disease, dementia, and death so many years later. The Veteran was in good health at separation from service and there was no evidence of peripheral vascular disease or dementia until decades after separation from service. Furthermore, there is evidence that the Veteran habitually smoked cigars, and as indicated by the VA examiner, a far more likely cause of any subsequent vascular problems than any second-hand smoke exposure the Veteran suffered from in service. As the Board previously noted, service connection will not be granted for a disease or injury attributable to the use of tobacco products by a Veteran. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. Finally, there is no evidence that the Veteran's sole service connected disability, a non-compensable appendectomy scar, caused or substantially contributed to the Veteran's death. For all the above reasons, entitlement to service connection for the cause of the Veteran's death is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for dependency and indemnity compensation (DIC) benefits, section5103(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). Here, the VCAA duty to notify was satisfied by letters sent to the Appellant in August 2011 and December 2012. These letters informed the Appellant of any conditions for which the Veteran was service connected at the time of his death and of how to substantiate a claim for service connection for the cause of the Veteran's death based on both service connected and non-service connected disabilities. The Appellant was also informed of VA and the Appellant's respective duties for obtaining evidence, as well as of how VA assigns disability ratings and effective dates. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service medical records and pertinent treatment records and providing an examination 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). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Appellant submitted private medical records, and was provided an opportunity to set forth her contentions during the September 2012 videoconference hearing before the undersigned VLJ. A VA medical opinion was obtained in June 2013. This opinion is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the Appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Appellant is required to fulfill VA's duty to assist the Appellant 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). ORDER Entitlement to 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