Citation Nr: 1329161 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 99-17 828A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1946 to June 1952. He died in October 1996. The appellant is advancing this appeal as his widow. The issue on appeal was before the Board in January 2008. The appellant appealed the Board's January 2008 denial to the United States Court of Appeals for Veterans Claims (Court). By memorandum decision in June 2010, the Court vacated the Board's January 2008 decision and remanded the matter for additional action. This matter was remanded in April 2011, September 2012, and May 2013 for further development. The appellant testified at a hearing before the Board at the RO in August 2003. FINDINGS OF FACT 1. The Veteran died in October 1996; the death certificate lists the immediate cause of death as stroke following surgery with arteriosclerotic cardiovascular disease, respiratory compromise, and severe arthritis leading to immediate cause of death. 2. At the time of the Veteran's death, service connection was not in effect for stroke, arteriosclerotic cardiovascular disease, respiratory compromise, or severe arthritis. 3. The disabilities that caused the Veteran's death were not manifested during the Veteran's military service or for many years thereafter, nor were they otherwise related to service. CONCLUSION OF LAW The Veteran's death was not caused by or substantially or materially contributed to by a disability incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Here, although the RO did send a VCAA notice in April 2004 to the address that was on file at the time, it appears that the appellant did not receive it. Using an updated address, the RO then provided the appellant notice in September 2006 of what type of information and evidence was needed to substantiate the claim for service connection for cause of death, subsequent to the October 1997 adjudication. Also, in July 2007 and July 2012 supplemental statements of the case, the appellant was also provided notice of the types of evidence necessary to establish a disability rating for a disability claim and the effective date of the disability. While the notices were not provided prior to the October 1997 adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in the July 2007, July 2012, and May 2013 supplemental statements of the case, following the provision of notice. The appellant and her representative have not alleged any prejudice as a result of the untimely notification, nor has any been shown. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA also has a duty to assist the appellant in the development of the claim. This duty includes making reasonable efforts to assist her in obtaining evidence necessary to substantiate the claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. In this regard, VA afforded the claimant the opportunity to give testimony at a Board hearing at the RO in August 2003. By rating decision in October 1997, the appellant was informed that the Veteran's service records may have been destroyed at the 1973 fire at the National Personnel Records Center (NPRC). Consequently, the RO turned to available VA medical records to reconstruct the claims file. Although some VA records have been obtained, other VA medical records were requested, but were unable to be located. Overall, all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. Further, the RO obtained a medical opinion regarding the appellant's claim in May 2011 and an addendum opinion in October 2012. Significantly, neither the appellant nor her representative has identified 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 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). Service connection for the cause of death In a claim of service connection for the cause of the Veteran's death, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312. To establish service connection for the cause of a Veteran's death, the evidence must show that a disability incurred in or aggravated by service was either the principal, or primary cause of death, or that it was a contributory cause of death under 38 C.F.R. § 3.312(a). For a service-connected disability to be the principal cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 C.F.R. § 3.312(b). A contributory cause of death is defined as one inherently not related to the principal cause. 38 C.F.R. § 3.312(c). For a service-connected disability to constitute a contributory cause, 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." Id. 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. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arteriosclerosis and arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). In its review of the record, the Board must determine whether the evidence supports the claim or if it is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). As noted above, the Veteran died in October 1996, and his death certificate lists the immediate cause of death as stroke following surgery with arteriosclerotic cardiovascular disease, respiratory compromise, and severe arthritis. At the time of the Veteran's death, service connection was not in effect for stroke, arteriosclerotic cardiovascular disease, respiratory compromise, severe arthritis, or any disability. As noted previously, it appears that the Veteran's service medical records were destroyed at the 1973 fire at the NPRC. There are no postservice records pertaining to stroke, arteriosclerotic cardiovascular disease, respiratory compromise, or severe arthritis until many years after discharge. Reports of VA hospitalizations in 1967 and 1971 do not document stroke, arteriosclerotic, or arthritic disorders. One hospitalization involved a respiratory problem, but there is nothing in that report relating any chronic respiratory disorder to the Veteran's military service which ended in 1951. Stroke, arteriosclerotic cardiovascular disease, respiratory compromise, and arthritis were noted on the Veteran's October 1996 death certificate. The first medical evidence of treatment for arthritis is reflected in an October 1991 medical record from Arthritis Associates; although in her testimony at the August 2003 Board hearing, the appellant testified that the Veteran first sought treatment in 1971 for arthritis. Nevertheless, this lengthy period without treatment after service suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Accordingly, the Board finds that stroke, arteriosclerotic cardiovascular disease, respiratory compromise, and severe arthritis did not manifest in service. Additionally, service incurrence for arteriosclerosis and arthritis cannot be presumed since there is no evidence of either within one year after service. In support of the appellant's claim that the conditions the Veteran's died from may otherwise be related to service, she and the Veteran's siblings collectively stated that the Veteran had a jeep accident that occurred in Korea in a snow storm and that he had gotten frostbite to his feet and sustained a broken nose, which they collectively opined led to the conditions related to his cause of death. Specifically, the appellant maintains that the jeep accident led to the Veteran's respiratory disability; the Veteran's siblings maintain that the jeep accident led to the Veteran's respiratory disability. Notably, in September 1999, one of the Veteran's sisters, a registered nurse, submitted a statement indicating that the Veteran never had difficulty breathing, sinus infections, upper respiratory infections or difficulty with clearing his nasal passages until after returning from overseas duty. Private treatment records from Arthritis Associates (Dr. Huffstutter) dated from 1992 show continued treatment for seropositive rheumatoid arthritis (RA). In May 1997, the appellant submitted a letter from Dr. Huffstutter who stated, "I feel that he also had pain in his hands and feet that could have been due to thermal injuries suffered as a veteran." In September 1999, Dr. Huffstutter submitted a statement revealing that he had diagnosed the Veteran with rheumatoid arthritis and that the Veteran had paresthesias of his hands and feet. Dr. Huffstutter noted that when he questioned the Veteran about "these", the Veteran related an incident that occurred in the Korean War where he reportedly had significant frostbite injury to his hands and feet. Dr. Huffstutter admitted that he did not know any particulars about how the Veteran's injuries were handled while in the military or immediately after discharge. In August 2003, the appellant testified before the Board, stating that the cold exposure in service resulted in rheumatoid arthritis. Against the Veteran's claim is a VA medical opinion obtained in May 2011. Dr. Lee reviewed the Veteran's claims file, including the death certificate, and VA and private treatment records. He opined that the Veteran's cause of death is not related to his active duty service, to include due to cold injury to his hands and feet during his Korean service. Dr. Lee stated that the Veteran's treatment records note he had puffiness of his right wrist "and along his MCPs and PIPS. However, his joint condition was seropositive RA. Degenerative arthritis from cold injury is seronegative." Further, Dr. Lee stated that the major degenerative arthritis from cold injury of the feet is the MP joint of the great toes. However, he pointed out that the treatment notes indicate a normal ankle and feet. He additionally stated that if the Veteran had long term complications of cold injury to the hands and feet, the complications would last to his final days. An addendum VA medical opinion was obtained in May 2012. Dr. Molero explained that Dr. Lee previously explained why the arthritis is not related to a cold injury in service, because, she stated, that from the disorders listed on the Veteran's death certificate, "it is the only one which could potentially be related to the SC condition." She noted that as Dr. Lee explained and she concurs, "it is not." She further stated that "circulatory problems that has [sic] been associated with cold injury are local, and can produce local problems, no [sic] systemic, as [is] the case in arteriosclerotic cardiovascular disease." Dr. Molero explained that there is no medical basis to affirm that cold injury can produce cardiovascular disease with compromise of the heart. Regarding stroke and respiratory compromise, she also stated that there is no medical basis to link either of these problems with cold injury in the feet and hands. The Board finds that the preponderance of the evidence is against the appellant's claim. The Board is particularly persuaded by the opinions from two VA physicians who individually reviewed the Veteran's claims file (including treatment records and his death certificate) and determined that no condition listed as his immediate cause of death could be related to service. These medical opinions are highly probative as, together, they include a thorough and detailed assessment and a rationale which cites to the factual record. Moreover, the Board is persuaded by the consistency of the opinions. The October 2012 opinion by Dr. Molero is consistent with that of Dr. Lee in finding that the Veteran's arthritis cannot be linked to service. She further explained Dr. Lee's opinion, noting that the reason he specifically explained why the arthritis is not related to the Veteran's cold injury/service is because it is the only condition which could potentially be related to service. In this regard, the Board notes that there is no discrepancy between the treatment records from Dr. Huffstutter and the opinions of Dr. Lee and Dr. Molero showing the Veteran suffered from seropositive RA (and not seronegative RA). As explained by Dr. Lee and concurred with by Dr. Molero, degenerative arthritis from a cold injury is seronegative. Even though both VA physicians determined arthritis was the only condition that could potentially be related to service, Dr. Molero addressed the Veteran's other immediate causes of death, including arteriosclerotic cardiovascular disease which she explained could not be related, as circulator problems associated with cold injury are local and not systemic, as is the case with arteriosclerotic cardiovascular disease. Regarding the other remaining immediate causes of death, stroke and respiratory compromise, Dr. Molero stated that there is no medical basis to support a link between a cold injury to feet and hands and either of these causes. Thus, taken together, the Board finds that the October 2011 and October 2012 VA opinions are highly probative evidence prepared by competent medical professionals and informed by review of the claims file and supported by a detailed rationale. The Board finds that the opinions by Dr. Huffstutter are less persuasive as they did not include any rationale to support his statement that there may be a link between the Veteran's paresthesias of his hands and feet and frostbite in service. Instead, it appears that Dr. Huffstutter made this statement by relying on a history provided to him by the Veteran. An opinion that does not contain a rationale, i.e., the examiner merely states his conclusion, but does not state why he reached this conclusion, lacks probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service connection or rating context if it contains only data and conclusions."); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). In addition, as the statements from Dr. Huffstutter were generally made in a treatment setting, his conclusions are without the benefit of a longitudinal review of the evidence. The Board has also considered the appellant's statements and testimony and the other lay statements of record regarding a link between the Veteran's immediate causes of death and his service. The appellant and the Veteran's siblings are competent to testify about their first hand knowledge of symptoms the Veteran experienced or complained of as well as his recollections from service. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, establishing a link between complex medical processes such as arthritis, arteriosclerotic cardiovascular disease, respiratory compromise and a stroke falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." To the extent that the September 1999 statement from a sibling of the Veteran who is a registered nurse may be viewed as an implicit opinion linking a cause of death with the Veteran's service, the Board finds the VA medical opinions more probative as they were made by medical doctors with a higher level of education than a registered nurse. Consequently, the Board finds that the preponderance of the evidence is against a finding of a link between the Veteran's cause of death and his service. Thus, the appellant's claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs