Citation Nr: 1328989 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-31 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from December 1952 to December 1956. He died in August 2011 and the appellant is his widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Milwaukee Regional Office, which denied entitlement to service connection for the cause of the Veteran's death. The claim was remanded by the Board in April 2013 for additional development. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDINGS OF FACT 1. The Veteran died in August 2011 due to a hip fracture and dementia. 2. At the time of the Veteran's death, service connection was in effect for anxiety reaction, which was evaluated as 30 percent disabling. 3. Seroquel had been prescribed for the Veteran to treat symptoms stemming from non-service connected dementia. 4. The Veteran's service-connected disability was not a principal or contributory cause of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1110, 1116, 1310, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for DIC benefits, which includes a claim of service connection for the cause of the Veteran's death, section 5103(a) notice must be tailored to the claim. The notice should 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. Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Hupp v. Nicholson, 21 Vet. App. 342 (2007). A January 2012 letter, issued to the appellant prior to the initial adjudication of the claim, provided notice compliant with Hupp. The appellant has substantiated the Veteran's status as a veteran. The January 2012 letter also provided Dingess notice. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the appellant, including service treatment records and VA treatment records. In April 2013, the appellant was requested to identify and provide authorization for VA to obtain records of private treatment, including from Dr. R.B.; to this date, the appellant has not responded. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The records contained therein have been reviewed. In a cause of death claim, VA has a duty to obtain a medical opinion if such is needed to assist the appellant in substantiating the claim. 38 U.S.C. § 5103A(a); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008); see also Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008). A medical opinion was obtained in November 2012 and June 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the November 2012 and June 2013 VA opinions are adequate, as they were predicated on a full reading of the VA treatment records and the VA and private medical opinions contained in the claims file and the examiner provided a complete rationale for the opinions stated. The examiner relied on the complete record, including the appellant's reports, as well as medical literature and other medical opinions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met. 38 C.F.R. § 3.159(c)(4). The issue on appeal was previously before the Board in April 2013, when it was remanded for additional development. In accordance with the remand instructions, VA treatment records were obtained and associated with the Virtual VA claims file, the appellant was issued the April 2013 letter regarding private records discussed above, the June 2013 VA opinion was obtained, and a supplemental statement of the case (SSOC) was issued in June 2013. Since the record reflects compliance with the April 2013 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that VA has complied with the VCAA's notification and assistance requirements. Service Connection for the Cause of the Veteran's Death Dependency and indemnity compensation (DIC) may be awarded to a surviving spouse upon the service-connected death of the veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a) (2013). To establish service connection for the cause of the Veteran's death, the evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause or be etiologically related thereto. For a service-connected disability to constitute a contributory cause, 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing 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). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The Veteran died in August 2011; the death certificate listed a hip fracture due to or as a consequence of dementia as the cause of death. The appellant does not contend, and the record does not show, that the causes of the Veteran's death were directly incurred in service or were present to a compensable degree within one year of service. See 38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013) (providing presumptive service connection for cardiovascular-renal diseases present to a compensable degree within one year of service). Rather, the appellant contends that the Veteran was prescribed the medication Seroquel (quetiapine fumarate) for his service-connected anxiety disorder and that the increase of that medication just before his death predisposed him to a fall that led to the hip fracture. She submitted evidence of the side effects of this medication, which includes dizziness and lightheadedness. The appellant also submitted a statement from a private physician, Dr. R.B., who stated that the Veteran had been a patient of his in the past and provided the opinion that the increase of Seroquel from 100 milligrams daily to three times a day contributed to his unsteadiness and confusion. This change in dosage predisposed him to the fall, which fall resulted in a fractured hip and the downhill terminal course that followed thereafter. The Board notes that treatment records from Dr. R.B. have not been obtained. As it was unclear when and to what extent the physician treated the Veteran and whether he had had the chance to review the claims file before providing an opinion, the Board requested that the appellant provide authorization to VA to obtain any existing records. As noted above, however, the appellant did not respond to the April 2013 letter that requested the authorization. A VA physician, an internist, provided two opinions in this case-in March and November 2012. In the reports, the physician stated that Seroquel was not being used for treatment of general anxiety disorder, but rather for the treatment of delirium, agitation, and psychosis related to advanced dementia. The physician stated that the VA mental health treatment records clearly documented the issues that the Veteran had with dementia as well as the fact that the changes in medication were made in an attempt to manage the increasing active symptoms of his dementia. The physician further stated that Seroquel was not used clinically to treat general anxiety disorders according to the FDA's on label and off label usage guidelines. The physician cited to several sources of medical literature to support his conclusions. Pursuant to the April 2013 Board remand, a third opinion was obtained from a VA clinical psychologist. After reviewing the claims file, including the VA treatment records and the prior VA and private medical opinions, the examiner concluded that that she agreed with the VA physician who provided the March and November 2012 opinions that Seroquel had been prescribed to treat dementia, not the service-connected anxiety disorder. She stated that the two VA opinions were very thorough, were based upon objective medical evidence and empirical research, and were far more comprehensive and rigorous than Dr. R.B.'s private opinion. The VA psychologist stated that Dr. R.B.'s opinion was far less thorough, did not discuss the reason Seroquel was prescribed to the Veteran or the FDA indications for use of the medication, did not state whether Dr. R.B. was actually treating the Veteran during the time he used Seroquel, and did not indicate whether the claims file had been reviewed. Recently obtained VA treatment records confirm that Seroquel had been used to treat symptoms of dementia since at least 2007 and up until the time of the Veteran's death. The prescription of Seroquel was consistently listed as the treatment plan under the diagnosis and discussion of dementia in the history and notes section. Several treatment records, such as those dated on July 26, 2010, and August 26, 2011, indicated that Seroquel was prescribed to treat the irritability, agitation, and hallucinations associated with dementia and that the dosage was increased as those symptoms increased. The appellant herself indicated on August 18, 2010, that she gave the Veteran an extra dose of the medication at one point because of his increased dementia symptoms, which she described as his "acting out." On March 7, 2011, it was noted that the Veteran was not receiving the full dose of Seroquel and the VA physician recommended that the missing dose be given during the afternoon, the time of day, the appellant and her son reported, when his dementia symptoms typically increased in severity. The Board also notes that in a July 26, 2010, VA treatment record, the Veteran reported several recurrent falls due to his legs giving out. He reported that he had gone to physical therapy in the past to strengthen his legs, but once he ended physical therapy, the falls began again. Given the foregoing, the evidence demonstrates that Seroquel was used to treat the Veteran's non-service connected dementia and weighs against a finding that Seroquel was prescribed to treat the service-connected anxiety disorder. The Board finds the VA opinions to be more persuasive. All three opinions are based upon a comprehensive review of the claims file, including the other medical opinions of record at the time. The 2012 VA opinion cited to medical literature and to the FDA on label and off label indicated uses for the medication, which show that Seroquel is an anti-psychotic medication that is not used in the treatment of anxiety disorders, but is often prescribed for treatment of certain symptoms of dementia. The 2013 opinion, provided by a VA psychologist, confirmed that the 2012 VA opinions were correct and well-supported. Moreover, VA treatment records support the finding that the medication was prescribed to treat dementia symptoms, specifically irritability, agitation, and hallucinations. The VA physicians and even the appellant herself indicated during VA treatment that increased doses of Seroquel were provided to the Veteran to treat increased dementia symptoms. As both VA physicians noted, the private opinion offered by Dr. R.B. did not opine as to whether Seroquel was used to treat the service-connected disability, but rather that its use contributed to the fall and his eventual death. There is no indication that Dr. R.B. treated the Veteran while he was taking Seroquel or that he had had the chance to review the evidence of record prior to providing his opinion. The Board acknowledges the appellant's contention that a December 2007 VA examination supports her contentions that Seroquel was used to treat the anxiety disorder. However, the VA examination only shows the examiner's notation that Seroquel had been among the medications prescribed by the Veteran's primary care physician and that the examiner diagnosed generalized anxiety disorder during the examination. The physician noted the Veteran's history of mini-strokes as well as his impaired memory. He did not state that Seroquel had been prescribed specifically for an anxiety disorder. Indeed, VA treatment records from 2007 demonstrate that the medication was used to treat symptoms of dementia. The appellant is competent to report certain symptoms she observed or what she was told; however, she does not possess the medical expertise necessary to render such an opinion regarding the use of a specific medication as treatment of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, her statements must be weighed with the evidence of record. There is no other competent or credible evidence supporting a link between the Veteran's service-connected disability and his death. Therefore, the Board concludes that the evidence does not demonstrate that the Veteran's service-connected disability, including any treatment therefor, caused or contributed to his death, or that the causes of death were otherwise related to service or a service-connected disease or disability. As such, the weight of the evidence is against a finding of service connection for the cause of the Veteran's death, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Service connection for the cause of the Veteran's death is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs