Citation Nr: 1329009 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-16 750 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee 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 Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from June 1943 to October 1945 and from October 1950 to June 1952. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in June 2013. 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 immediate cause of the Veteran's death on August [redacted], 2010, is shown to have been the result of natural causes. 2. At the time of death, the Veteran's service-connected disabilities included profound bilateral sensorineural hearing loss, rated 100 percent disabling, angioneurotic edema with brachial plexus causalgia involving the ulnar and median nerve, rated 50 percent disabling, removal of first rib associated with angioneurotic edema with brachial plexus causalgia involving the ulnar and median nerve, rated 10 percent disabling, and gunshot wound of the left leg, rated noncompensably disabling. The combined rating was 100 percent; effective from April 29, 2003. 3. No causal or contributory relationship between service-connected disabilities and the Veteran's death is demonstrated. CONCLUSION OF LAW A disability of service origin did not cause or contribute substantially or materially to cause the Veteran's death. 38 U.S.C.A. §§ 1110, 1154, 1310, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before addressing the merits of the appellant's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in September 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Board also reviewed the Veteran's VA electronic medical records. The appellant was provided an opportunity to testify at a personal hearing, but declined. The claims file was reviewed by a VA physician to determine whether the Veteran's demise was related to his military service or to a service-connected disability. The Board finds that the VA examiner's review of the claims file was comprehensive and that he provided a clear and rational explanation for the conclusions reached. Thus, the Board finds that the VA medical opinion was adequate upon which to base a decision on the merits of the issue on appeal. Further, neither the appellant nor her representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of her appeal. Cause of Death: In General 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 either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2002). A service-connected disorder is one that was incurred in or aggravated by active service; one for which there exists a rebuttable presumption of service incurrence, such as hypertension or cardiovascular disease, if manifested to the required degree within a prescribed period from the veteran's separation from active duty; or one that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.310(a) (2012). A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other disorder, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially, that it combined to cause death, or that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Factual Background & Analysis Initially, it should be noted that the Board has reviewed all the evidence of record in this case, including but not limited to the Veteran's statements during his lifetime, his STRs and the VA and private medical records and the appellant's contentions. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, it is not required to discuss each and every piece of evidence in a case. The relevant evidence, including that submitted by the appellant, will be summarized where appropriate. The appellant contends the Veteran's death was related to his service-connected left leg disability and believes that service connection should be established for the cause of his death. Specifically, the appellant asserts that because of weakness in his left leg as a result of a gunshot wound in service, the Veteran fell and fractured his left hip at a nursing home in July 2010, and that his health declined rapidly after the fall leading to his demise in August 2010. The favorable evidence in this case consists of a statement from a private family physician, dated in October 2010, to the effect that the Veteran suffered from weakness and atrophy in the left leg as a result of a gunshot wound in service, and that the residual weakness contributed to his subsequent fall and resulting left hip fracture, from which he suffered complications that led to his demise in August 2010. A duplicate opinion was received from the same physician in March 2012. Concerning the service-connected left leg disability, the STRs indicated that the Veteran was wounded in action (WIA) and was treated for a superficial laceration wound of the left leg at an aid station in March 1945. The report indicated that the wound was dressed and the Veteran was returned to duty. The STRs showed no further complaints, treatment or abnormalities referable to his left leg during his seven months of remaining service or during his second period of service from 1950 to 1952. The Veteran's service separation examination in October 1945 showed a history of a shrapnel wound to the left leg in April 1945, with no residual symptoms. On examination, no musculoskeletal defects were noted and the Veteran's skin was normal. By rating action in October 1946, service connection was established for a gunshot wound to the left leg. The Veteran was assigned a noncompensable rating, which remained in effect until his death in 2010. The only other mention of the left leg disability since the Veteran's discharge from service in 1952, was a January 1955 VA hospital report that indicated he received shrapnel wounds of the lower extremities during World War II, that apparently left no residual defect. Other than a few superficial scars, an examination of the left lower extremity at that time was normal. Private medical records showed that the Veteran lost his balance and fell, fracturing the left proximal femur at a nursing home in July 2010. The Veteran underwent open reduction and internal fixation of the left hip without complication, and was returned to the nursing home to recuperate. The evidence showed that the Veteran expired at the nursing home on August [redacted], 2010. The Certificate of Death showed the immediate cause of death was due to natural causes. At the direction of the Board remanded in June 2013, the claims file was referred to a VA physician for review of the record and an opinion as to whether a service-connected disability, including his gunshot wound to the left leg singly or with some other condition, was the immediate or underlying cause of his death, or contributed substantially or materially to the Veteran's death. In an August 2013 report, a VA physician indicated that the claims file was reviewed and included a description of the Veteran's medical history. The examiner opined it was not at least as likely as not that the Veteran's service-connected left leg disability, singly or with his other service-connected disabilities was the immediate or underlying cause of death and did not contribute substantially or materially to cause his death. The examiner explained, in essence, that the evidentiary record showed the Veteran's left leg injury in service was superficial in nature and that there was no evidence of any complaints, treatment or abnormalities subsequent to service other than a few superficial scars noted on a VA hospital report in 1955. Moreover, the record showed that the Veteran had several nonservice-connected disabilities, including Parkinson's disease and a cerebral vascular accident, both of which would likely affect balance. The physician also pointed out that there was no objective evidence in the record to support the private opinion that the Veteran's fall at the nursing home was due to weakness or muscle atrophy associated with the service-connected left leg disability. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this regard, the Board finds that the favorable private medical opinion was wholly conclusory and provided no discussion of the facts or any reasoned analysis. That is, the private physician offered no explanation or pointed to any objective evidence that the Veteran's left leg was weak or atrophied, or that his fall at the nursing home was related to any left leg problems. Accordingly, the Board finds that the private medical opinion is of limited probative value. The Board also has taken into account the assertions advanced by the appellant, but there is no indication that the appellant has had any medical training. She has not claimed to have a degree in medicine. She has not claimed to have taken and/or completed any courses in nursing. She has not claimed to have any experience in the medical field. As such, her statements are considered lay evidence. She is competent to testify as to symptoms she is able to observe, and she is competent to testify as to reporting contemporaneous medical diagnoses. However, in this particular case, the appellant is offering her opinion regarding a medical etiology concerning inner workings of the Veteran's body that are not apparent to an untrained observer. Rather, it involves a complex medical situation, the claimed relationship between service-connected disabilities and his death. Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, in this particular situation, the appellant's statements are not considered to be competent nexus evidence and are of minimal probative value. After review of all the evidence of record, the Board finds the VA medical opinion more persuasive, as it was based on a thorough review of all of the evidence of record, including the favorable private medical opinion. The examiner offered a rational and plausible explanation for concluding that the service-connected disabilities did not cause or contribute to the Veteran's death. The examiner indicated that the Veteran had several health problems which would likely have affected his balance, and that there was no objective evidence of record that suggested his fall at the nursing home or his subsequent death was related, in any fashion, to his service-connected left leg disability. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). While the Board is sympathetic to the contentions of the appellant, we are constrained by VA law and regulations which are clear and unambiguous. As the preponderance of the competent, probative evidence fails to show that the Veteran's service-connected disabilities played any part in his death, service connection for the cause of the Veteran's death is denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs