Citation Nr: 1327853 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-01 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and appellant's daughter ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to January 1946. He died in April 2005, and the appellant is his surviving spouse. This matter is on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal was remanded by the Board in December 2010 in order to provide the appellant the opportunity to testify at a hearing. This hearing was held by the undersigned Acting Veterans Law Judge in April 2012. A transcript of the hearing is of record. As a procedural matter, the Board notes that the appellant submitted a series of treatment records from 2003, which was received since the last RO review of the issue on appeal. However, the appellant has waived her right to RO review, and there is no prejudice to the Veteran by adjudicating the claim without RO review of this evidence. 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. According to his certificate of death, the Veteran died of a myocardial infarction in April 2005 that was due to, or a consequence of, hypertension. 2. At the time of the Veteran's death, service connection was established for posttraumatic stress disorder (PTSD), with a 50 percent disability rating, and acne vulgaris and bilateral hearing loss, both of which were rated as noncompensable. 3. The causes of the Veteran's death were not manifest in service nor diagnosed until many years after separation from service, and are not etiologically related to active service or to his service-connected PTSD. CONCLUSION OF LAW The cause of the Veteran's death is not attributable to a disability incurred in or aggravated by active duty service or to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1310, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA 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, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the appellant nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in June 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. It also provided the appellant with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. It is noted that this VCAA notice did not include a statement of the conditions for which the Veteran was service connected at the time of his death, as is required in the context of dependency and indemnity compensation claims. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). However, there is no prejudice to the appellant's claim in this instance, because the Veteran was service connected for only one disorder that could reasonably have been a potential contributing factor to his death (PTSD), and it is clear that the appellant understood that the Veteran was service connected for this disability. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 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 treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, 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). First, the RO has obtained the Veteran's service treatment records and private outpatient treatment records. Further, the appellant has submitted journal articles in support of her arguments. Additionally, an opinion by a physician who specializes in cardiovascular disorders was obtained by the Board in December 2012, and an additional clarification was obtained in April 2013. Cf. DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (a VA opinion is not always necessary in a cause of death claim). As noted below, the Board finds that the VA opinion obtained in this case is more than adequate, as it is predicated on a full understanding of the Veteran's medical history and provides a sufficient evidentiary basis for the claim to be adjudicated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The appellant was also afforded a hearing before the undersigned hearing officer in April 2012. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the appellant was specifically asked about the Veteran's PTSD symptoms before his death, and how she believed that such symptoms exacerbated his cardiovascular symptoms. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Cause of Death In order to establish service connection for the cause of the Veteran's death, the applicable law requires that the evidence show that a disability which was incurred in or aggravated by service either caused or contributed substantially or materially to death. In this regard, it can be either the immediate or underlying cause, or else be etiologically related. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312 (2012). In order to constitute the principal cause of death, the service-connected disability must be medically determined to have been 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). On the other hand, a contributory cause of death is one not inherently related to the principal cause, but that it contributed substantially or materially; combined to cause death; or assisted in the production of death. Significantly, 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)(1). 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). Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. Id. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. However, even in such cases, VA must consider 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, 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). In this case, the Veteran died in April 2005. According to his death certificate, the primary cause of death was a myocardial infarction, with a contributing cause listed as hypertension. At the time of his death, he was service connected for PTSD, with a 50 percent disability rating, as well as for acne vulgaris and bilateral hearing loss, both of which were noncompensable. The appellant, the Veteran's surviving spouse, submitted a claim for benefits in May 2005, in which she asserted that the cardiovascular disorders which caused the Veteran's death were caused or exacerbated by his long-standing PTSD. In support of her argument, she has submitted abstracts of three medical studies which raise the possibility of such a relationship. She has not made any assertions regarding the Veteran's service-connected acne vulgaris or his bilateral hearing loss. The first study submitted by the appellant, which was published by the Archives of General Psychiatry in January 2007, surveyed a group of men from the Greater Boston area who had served in the military and had exhibited some low level symptoms of PTSD. The results of this study indicated a "prospective association" between PTSD symptoms and some cardiovascular disorders. The report also noted that the results suggested that a higher level of PTSD symptoms "may increase" the risk of incident cardiovascular disorders in older men. The second submitted study, published by the Journal of the American Medical Association in 2009, investigated the impact of PTSD on the cardiovascular health of veterans from the current conflicts in Iraq and Afghanistan. This abstract reported that veterans with mental health diagnoses had a "significantly higher prevalence of all cardiovascular risk factors." The third submitted study, published by the Journal of Psychosomatic Medicine in July 2008, was based on a survey of Vietnam veterans who displayed symptoms of PTSD, and concluded that PTSD was "prospectively associated" with cardiovascular mortality when compared to their cardiovascular symptomatology in 1985. The study, it was concluded "suggests that early-age [cardiovascular disorders] may be an outcome after military service among PTSD-positive veterans." The Board also notes that VA has published its own articles which address the potential relationship between PTSD and physical health. See http://www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp (August 27, 2013). However, based on the medical evidence of record, the Board has determined that it is less likely than not that the Veteran's service-connected PTSD contributed to the cardiovascular disorders which caused his death. In arriving at this conclusion, the Board places great probative value on opinions provided in December 2012 and April 2013 by a physician who specializes in the treatment of cardiovascular disorders. On that occasion, after a review of the Veteran's claims file, this physician opined that it was less likely as not that the Veteran's PTSD contributed to his cardiovascular disorders which were ultimately the cause of his death. In providing this opinion, the physician acknowledged that some medical literature has associated PTSD with some cardiovascular disorders. However, there remained "a question as to whether the development of a cardiovascular disease such as hypertension occurs before or after the appearance of symptoms of PTSD." In this case, the physician noted that that the Veteran was diagnosed with hypertension before his first PTSD symptoms were treated in 2003. Moreover, the physician pointed out that the Veteran had a number of other risk factors that may also have contributed to his cardiovascular disorders, including his age, gender and obesity. The Board finds that the opinion is adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, and provided an adequate basis for the opinions rendered. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. There is also no medical opinion of record that contradicts the opinions of this examiner. While consideration has been given to the articles submitted by the appellant, and it is recognized that VA has conducted its own studies on the subject, the Board nevertheless places greater weight in the opinions of the VA examiner. Notably, all of the research referenced by the articles suggests only a potential relationship between PTSD and cardiovascular disorders, and the Board is not aware of any study establishing that PTSD is at least as likely as not the cause of a cardiovascular disorder. It has also been held that the mere suggestion of a relationship is insufficient for service connection purposes. See Obert v. Brown, 5 Vet. App. 30 (1993) (opinions using language such as "could have" are speculative in nature and are insufficient for adjudication purposes). Moreover, while studies such as the ones submitted by the appellant are of some probative value, they are of relatively little weight because they were based on wide variety of test subjects. The VA examiner's opinion, on the other hand, was based specifically on the Veteran's medical history. In addition to the VA examiner's opinion, the Board also notes that none of the Veteran's outpatient treatment records ever suggested such a relationship, nor did a treatment provider ever mention that such a relationship may exist. Therefore, the Board finds that the weight of the evidence is against a finding that the causes of the Veteran's death were related to his service-connected PTSD. As such, service connection for the cause of the Veteran's death is not warranted on this basis. Next, service connection for the cause of death may be alternatively warranted where the evidence indicates that the cause of the Veteran's death should have been service connected. That is to say that, to establish service connection for a particular disability found to have caused his death, the evidence must show that the disability resulted from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. In those cases, the evidence must show: (1) the existence of a disability at the time of the veteran's death; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection for certain chronic diseases, including hypertension or any other cardiovascular disorder , may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, the Veteran's service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a cardiovascular disorder, to include hypertension, while in service. Significantly, at the time of his separation physical examination in January 1946, no abnormal cardiovascular symptoms were observed. Therefore, a cardiovascular disorder of any sort was not incurred during active duty service. Moreover, the post-service evidence does not reflect symptoms related to a cardiovascular disorder for many years after the Veteran left active duty service, long after the presumptive period for service connection for organic heart disease. In fact, the first indication of a cardiovascular disorder of any sort was not until a November 2003 treatment note which noted a prior diagnosis of hypertension in July 2002. The Board emphasizes that this first indication of a cardiovascular disorder is approximately 58 years after he left active duty. Such a large gap in treatment also weighs against a finding that any cardiovascular disorder which contributed to his death is related to service. Moreover, neither the Veteran nor the appellant has asserted that the Veteran had a cardiovascular disorder since the time he left service. Thus, a basis for a grant of service connection on a direct or presumptive basis has not been presented. Next, service connection for the cause of the Veteran's death may also be granted when the evidence establishes a medical nexus between active duty service and the cause of his death. In this case, however, the weight of the evidence supports the conclusion that the there is no relationship between the Veteran's death and his active service, nor has any treatment professional indicated such a relationship, and that the Veteran's death is instead attributed to causes unrelated to active duty. As for all aspects of this appeal, the Board has also considered the statements made by the appellant relating the Veteran's cardiovascular disorders to his service-connected PTSD. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the appellant is not competent to provide testimony regarding the etiology of the disorders that led to the Veteran's death. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of cardiovascular disorders, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Therefore, the unsubstantiated statements made regarding the claimed etiology of the Veteran's cardiovascular disorders are found to lack competency. Finally, while the appellant is competent to establish the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, she has not asserted that the Veteran has experienced cardiovascular disorders since he was on active duty. Although the Board is sympathetic to the appellant's assertions, fully understands her position, and by no means wishes to minimize the service the Veteran provided to his country, the claim for service connection for the cause of the Veteran's death must be denied as the evidence simply does not establish that the causes of death were related to his military service or to his service-connected PTSD. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the appeal is denied. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs