Citation Nr: 1327914 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-30 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and her daughter ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active military service from February 1942 to July 1944. He died in July 2006, and the appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The claim was remanded by the Board in May 2011, July 2012, and May 2013 for additional development, and it now returns to the Board for appellate review. In December 2009, the appellant and her daughter testified before the undersigned Veterans Law Judge (VLJ), sitting at the RO. A transcript of the hearing is associated with the claims file. 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 in July 2006; the cause of death as listed on the death certificate was senile dementia, Alzheimer's type. 2. At the time of death, service connection was in effect for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, and residuals of shrapnel wound to the neck. 3. The competent and probative evidence of record does not establish that the Veteran's cause of death was a result of his military service or of service-connected disability. 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. §§ 1110, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Stegall Considerations This case was remanded by the Board in May 2011, July 2012, and May 2013. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the May 2011 remand was to issue corrective VCAA notice, to obtain outstanding VA treatment records, and to obtain a VA opinion. Steps were taken to fulfill each of the Board's orders, but in the July 2012 remand, the Board found that there was medical literature that needed to be added to the claims file and that another opinion that considered the literature in question should be obtained. In the May 2013 remand, however, the Board observed that neither the medical literature nor the new VA opinion had been added to the claims file. Nevertheless, the record after May 2013 reveals that the research studies have been located and added to the claims file in their entirety, as has a new VA opinion that considers these studies. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the prior remands, and that the Board may now proceed with adjudication of the claim. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. Further, the Board notes that, while the appeal was pending, the Court issued a decision with regard to the content of VCAA notices relevant to DIC claims. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In Hupp¸ the Court held that a notice with regard to a claim for DIC benefits must include (1) a statement of the conditions (if any) for which the 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 disability and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a disorder not yet service connected. Additionally, if the claimant raises a specific issue regarding a particular element of the claim, the notice must inform the claimant of how to substantiate the assertion, taking into account the evidence submitted in connection with the application. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appellant was provided with a VCAA notification letter in November 2006, prior to the initial denial of the claim in January 2007. However, while this letter addressed several claims for benefits related to the Veteran's death, it did not address the cause of death service connection claim. The first VCAA notice as to the cause of death claim was issued in May 2011. The May 2011 notice informed the appellant of the evidence necessary to establish service connection for a disability as well as the cause of the Veteran's death, of how VA would assist her in developing the claim, and her and VA's obligations in providing such evidence for consideration. This letter also included information on substantiation of effective dates and a list of the Veteran's service-connected disabilities during his lifetime. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Board notes that disability ratings do not apply to cause of death cases. Even though the May 2011 letter was not timely, the Board finds that no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In this regard, the Board observes that, as a matter of law, providing the appellant with VCAA-compliant notice prior to a readjudication "cures" any timing problem resulting from any deficiency in notice content or the lack of notice prior to an initial adjudication. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); citing Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A statement of the case (SOC) and supplemental SOC (SSOC) constitute "readjudication decisions" that comply with all due process requirements if preceded by adequate VCAA notice. See id. In the present case, after the May 2011 letter, the appellant's claim was readjudicated in SSOC, thereby rectifying any issue of timeliness. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield, 444 F.3d at 1333. Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge or Decision Review Officer 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. Here, during the Board hearing, the VLJ, with the assistance of the accredited representative from the Disabled American Veterans, asked questions to clarify evidence in support of the appellant's claim, including the basis for her belief that the Veteran's PTSD was associated with his cause of death. Moreover, the appellant's representative offered arguments in support of the claim as to how the Veteran's hypertension was related to military service, thereby demonstrating that the appellant should have awareness as to how to substantiate a claim for service connection. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the appellant or the representative. Neither the representative nor the appellant has suggested any deficiency in the conduct of the hearings. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has also fulfilled its duty to assist the appellant in making reasonable efforts to identify and obtain relevant records in support of the claim and obtaining a VA opinion. The Veteran's service treatment records, VA medical records, and a September 2011 and July 2013 VA opinions were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The appellant has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA opinion, the Board notes that once VA undertakes to provide a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's relevant medical history, and considered evidence related to both his psychiatric disability and his multiple medical problems, including vascular disease. They each then offered opinions based on review and consideration of this evidence, and to the extent any opinion offered is inadequate, such concerns are discussed below. Regardless, there is nothing to suggest that either examiner's opinion is not sufficiently based on the facts of the case or that he reached an arbitrary conclusion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Analysis The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). 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 causally 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. 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. 38 C.F.R. § 3.312(c). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service, or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. §§ 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arteriosclerosis and cardiovascular-renal disease/hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Id. Further, with chronic disease shown as such in service, or within an applicable presumptive period, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When a chronic disease identity is established in service, or within an applicable presumptive period, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Each disorder for which an appellant seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Lay statements may be sufficient evidence in any claim for service connection. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran died in July 2006; the cause of death as listed on the death certificate was senile dementia, Alzheimer's type. At the time of death, service connection was in effect for PTSD, bilateral hearing loss, tinnitus, and residuals of shrapnel wound to the neck. The appellant contends that the Veteran's death was caused by the anesthetics he received for hip surgery in May 2006 and, in the alternative, by cardiovascular disease that was due to his service-connected PTSD. Therefore, she argues that his death was connected to his military service. Additionally, at the December 2009 hearing, the appellant's representative contended that the Veteran's hypertension was a result of his military service. Initially, the Board observes that in her September 2007 VA Form 9, the appellant raised the theory that it was the anesthetic during his hip surgery that caused the Veteran's death. The Veteran was not service-connected for any disability related to his hips, and the treatment records surrounding his hip surgery in May 2006 do not note any complications secondary to the hip surgery. An October 2009 letter from Dr. Buckhout of the Phoenix VA Health Care System notes that the Veteran was discharged to a VA Community Living Center (CLC) and that when it became evident he would not progress in therapy, he was discharged to hospice care at home. The letter was sent to the appellant, and the language of the letter demonstrates that it was written in response to an inquiry on the part of the appellant. The letter does not discuss the Veteran's hip surgery or treatment with regard to his death. The appellant has also supplied no competent evidence in support of that claim. Moreover, she has not offered any further argument in either her written statements or testimony with respect to this contention. In light of these facts, the Board concludes that there is no competent and probative evidence demonstrating that the Veteran's death was causally or etiologically a result of his hip surgery or that his hip disability was causally or etiologically a result of his military service. With respect to the appellant's theory that his service-connected PTSD caused a cardiac disability that in turn led to his death, the Board finds that it is less likely as not that the Veteran's cardiac disability was etiologically due to his service-connected PTSD. The problem list noted by Dr. Buckhout in his October 2009 letter included cardiac disabilities of coronary artery disease status post myocardial infarction with coronary artery bypass graft, congestive heart failure, and atrial fibrillation. Dr. Buckhout stated that the Veteran's death due to Alzheimer's disease seems unlikely as it was felt by the history obtained when he was hospitalized and in CLC, that his dementia was vascular in origin. He then suggested that severe cardiac disease was more likely the cause of death and would have been compatible with what the appellant observed the day the Veteran died. The Board observes that while the appellant's observations of the Veteran's death are competent evidence of what she witnessed, the observations she related to Dr. Buckhout are not included in the record. Nevertheless, even assuming that the Veteran's death is attributable to cardiac disease, the competent and probative evidence does not associate the cardiac disabilities with either his military service or his PTSD. Service treatment records are negative for complaint, treatment, or diagnosis referable to cardiac disease, including hypertension. The Board observes that the cardiovascular evaluation at a January 1945 VA examination was negative for any abnormal findings. At a May 1947 VA examination, a slight systolic murmur and tachycardia were noted but found to have been incurred after service. No hypertension was documented at that time. At the December 2009 hearing, the appellant's representative argued that the Veteran's blood pressure readings of 130/90 in January 1945 and, in May 1947, of 140/86 would have supported a hypertension diagnosis. However, the Board observes that for VA purposes, hypertension means that diastolic blood pressure is predominantly 90 mm. or greater, and /or systolic blood pressure is predominantly 160 mm. or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012), Note (1). Thus, the Veteran's diastolic pressure in one instance in January 1945 suggested hypertension. However, one instance does not prove hypertension. Moreover, the subsequent reading in May 1947 was below 90 mm. Post-service treatment evidence does not reflect a diagnosis of hypertension until almost five decades later. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). Beyond the representative's arguments, there is no evidence showing that the Veteran's hypertension or cardiovascular disease was diagnosed in service or within one year of discharge to warrant presumptive service connection or that the hypertension is directly related to military service. VA treatment records show that the Veteran was diagnosed with vascular dementia in May 2001. A June 1992 VA treatment record reported peduncular hallucinosis possibly secondary to cerebrovascular infarction. However, an MRI showed no evidence of cerebrovascular accident. Nevertheless, as noted by the letter by Dr. Buckhout, the Veteran had a history of vascular dementia at the time of his death. Even so, as indicated, the competent and probative evidence does not associate the Veteran's cardiac disability or any related vascular disabilities with his service-connected PTSD. A September 2011 VA opinion states that the examiner could not find evidence anywhere in the file that supports the claim that the Veteran died directly or indirectly from PTSD. This opinion is inadequate as it provides no rationale for the negative opinion. An opinion that contains only data and conclusions is afforded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board notes that an opinion added to the file in November 2012 is merely a re-print of the September 2011 opinion. In July 2013, another VA opinion was obtained in response to the May 2013 remand. The examiner reviewed the claims file, including the medical literature cited by the appellant. Upon review of this evidence, the examiner stated that he could find no reason to alter the opinion that the Veteran's death was not due to PTSD or that the vascular problems, diabetes mellitus, and heart problems were not linked to the PTSD. The examiner noted that the medical literature discussing the role of psychosocial risk factors and anxiety found an association between the psychosocial factors and anxiety and myocardial infarction that can have predictive value. The examiner stated that it was a mere correlation and not, in any way, a causative factor. He observed that the Veteran was a very sick individual with diseases that are invariably fatal. He further indicated that and that it is more likely than not that these diseases were in no way worsened by his PTSD, including the Alzheimer's disease, and more likely than not that his PTSD was not any factor at all in the progression of these illnesses, nor an immediate cause of death. The examiner noted that there as there is nothing in the claims file to indicate otherwise. He reiterated that he found nothing in the claims file that supports any finding other than that the psychosocial factors and anxiety or PTSD are predictive markers or confounding variables and not causative. In light of the above, the Board finds that a preponderance of the competent and probative evidence demonstrates that the Veteran's death was not causally or etiologically a result of his service-connected PTSD. Even assuming that the Veteran's death was not due to dementia, Alzheimer's type, but to his long-diagnosed vascular dementia and that the vascular dementia was a result of cardiac disease, the competent and probative evidence does not establish that the cardiac disease was in any way caused or aggravated by the Veteran's service-connected PTSD or is otherwise related to service. The only competent evidence remotely suggesting such a connection is the medical literature cited by the appellant, and the Board observes that this literature does not pertain directly to the Veteran's case. Moreover, as discussed, the VA examiner reviewed the literature and described that the studies in question reflected no more than a correlation between psychosocial factors, such as PTSD, and cardiac events. Thus, the literature does not reveal a causal link between PTSD and cardiac disease. Therefore, the only evidence in support of the appellant's claim that the Veteran's service-connected PTSD caused his cardiac disease and in turn the dementia that caused his death is the appellant's statement to that effect. Such statements can be competent evidence of symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, the appellant is not competent to determine whether there is a connection between the Veteran's PTSD and his documented cause of death. This is a complex medical question, and the determination of the specific etiology of the Veteran's dementia and cause of death requires medical evidence. The only competent medical opinion of record is the VA opinion which is against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the evidence is against the appellant's claim of entitlement to service connection for cause of the Veteran's death. Therefore, the claim must be denied. ORDER Entitlement to service connection for cause of the Veteran's death is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs