Citation Nr: 1329289 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-31 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran served on active duty with the United States Army from September 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection for the cause of the Veteran's death. The October 2007 decision was itself a reconsideration of an August 2007 decision. In September 2011 and again in December 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. FINDINGS OF FACT 1. The Veteran died in February 2007, and the death certificate lists the cause of death as cardiomyopathy; no other condition was listed as contributing to death. The autopsy report stated that he died as a result of cardiomyopathy, and that hypertension and dementia may be contributing factors in his death. 2. The Veteran's death was not due to a disability incurred in service or otherwise related to service. 3. The Veteran's service-connected disabilities at the time of his death were bilateral hearing loss and tinnitus; a disability of service origin, to include posttraumatic stress disorder (PTSD) is not shown to have caused or contributed materially in producing or hastening the Veteran's death. CONCLUSION OF LAW The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Letters dated in May 2007, September 2011, and February 2012 satisfied the duty to notify provisions, and the claim was readjudicated in an October 2012 supplemental statement of the case. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for service connection for the cause of the Veteran's death (DIC benefits), section 5103(a) notice must 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. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). To the extent that a statement of the Veteran's service- connected disabilities was omitted in the VCAA notices in May 2007, September 2011, and February 2012, the VCAA notice was deficient, but the service-connected disabilities were included in the supplemental statement of the case in October 2010. If VA does not provide adequate notice of any of element necessary to substantiate the claim, the burden is on the claimant to show that the notice error was prejudicial. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Since the appellant was informed of the Veteran's service- connected disabilities, there has been no allegation of prejudicial error by either the Appellant or her representative. The Board finds that any defect in the content of the VCAA notice has not affected the essential fairness of the adjudication, that is, the opportunity for the Appellant to submit evidence and to be heard on the claim. VA has obtained a copy of the Veteran's death certificate, assisted the appellant in obtaining evidence; and, afforded her the opportunity to present statements and evidence. Medical opinions, including that of a VHA physician, have been obtained. The Veteran's service treatment records were found to have been destroyed in a fire at the National Personnel Records Center. Best available copies and alternate records were supplied. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and she has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Accordingly, the appellant is not prejudiced by a decision at this time. Service Connection for Cause of Death Service connection for the cause of the Veteran's death may be granted if a disability incurred in or aggravated by service was either the principal, or a contributory, cause of death. 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). For a service-connected disability to be a contributory cause of death it must have contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. The Veteran died in February 2007 at the age of 82. His death certificate listed the cause of death as cardiomyopathy. The autopsy report stated that he died as a result of cardiomyopathy, and that hypertension and dementia may be contributing factors in his death. The autopsy included internal examination of the head only. At the time of the Veteran's death, service connection was in effect for bilateral hearing loss, rated as 100 percent disabling, and tinnitus, rated as 10 percent disabling. In a September 2012 opinion, a VA medical care provider, based on review of the complete claim file, general medical knowledge, and research and findings specific to the involved disabilities, opined that it was less likely than not that hearing loss or tinnitus caused or lead to cardiomyopathy, the condition listed as the sole cause of death on the Veteran's death certificate. He documented that the reverse relationship-heart problems causing tinnitus-is documented, but found no support for the claim. The appellant, the Veteran's widow, contends that the Veteran suffered from PTSD that caused stress which, in turn, led to the Veteran's cardiovascular disability resulting in death. The appellant has submitted internet articles addressing an inter-relationship between stress and cardiovascular conditions. In July 2012, a VA reviewer opined that it was less likely than not that hypertension was related to service; it was not diagnosed until June 2002, more than 50 years following separation from service. In August 2012, a VA psychologist, following review of the claims file, opined that a diagnosis of PTSD at the time of death was warranted. Medical reports and lay statements documented symptomatology supporting the diagnosis, and the Veteran's reported World War II experiences, to include allegations of fear of hostile enemy action, were sufficient stressors. The VA psychologist stated that he could not render an opinion regarding whether PTSD caused or contributed to cardiomyopathy without resorting to mere speculation; such an inquiry was beyond the scope of his training as he was not a medical doctor. In February 2013, a VA physician reviewed the file. He stated that a review of medical literature showed that there are associations between psychosocial stress and cardiovascular disease; however there is no evidence psychosocial stress by itself causes cardiovascular disease or hypertension. The physician's opinion was that it was less likely as not that the Veteran's PTSD caused or aggravated any cardiovascular condition, to include cardiomyopathy or hypertension. In May 2013, the Board obtained an opinion from a VHA cardiologist. After review of the record, this physician stated that: 1. The diagnosis of cardiomyopathy in this patient is suspect as it is not possible for a pathologist/coroner to make an anatomical diagnosis of cardiomyopathy without examining the heart, and in this particular case, the heart and cardiovascular system were not dissected and visualized as it was a "head only" autopsy. In addition, it is inadequate for a pathologist to make a general diagnosis of "cardiomyopathy" and not specify the type of cardiomyopathy. The term cardiomyopathy refers to a broad and diverse category that cannot be accurately given to this patient in whom there was not a specific anatomic/pathologic diagnosis made because there was no direct examination of the heart or cardiovascular structures. In addition, there is no clinical support or documentation in the medical record that would even suggest that this person had a cardiomyopathy of any type or a cardiovascular disability. While this patient had a diagnosis of [hypertension] for approximately two and a half years prior to his death, the medical record indicates that the patient was on anti-hypertensive medications with good control of his blood pressure. In addition, he had a cardiac ultrasound (echocardiogram), referred to in 6/2004 that reported normal LV cardiac size and function. In addition, an ECG done 24 days prior to his death was normal with no evidence of hypertrophy or infarct. Assessment: there is no clear evidence the patient had cardiomyopathy or that death was a result of cardiomyopathy. 2. If you were to assume, however, that this patient had cardiomyopathy, there is no clinical research that has definitively documented a direct cause and effect relationship between PTSD and "cardiomyopathy." One may be able to infer that PTSD contributes to stress that contributes to [hypertension], which could possibly lead to one type of cardiomyopathy- hypertensive cardiomyopathy, however a direct causal relationship has not been established. In addition, there is no evidence that this patient had hypertensive cardiomyopathy. There are multiple articles published about PTSD in the medical journals. In 2009, an article published in Psychiatric Q (2009) 80:87-97 - entitled "The Link Between Post-traumatic Stress Disorder and Physical Comorbidities: A Systematic Review"- reviewed 80 studies focusing on PTSD and its association with physical health. The following is taken from the conclusion section of this article: "The relationship between PTSD and physical illness appears to be complex because of various biopsychosocial factors that are difficult to measure and integrate into a feasible study design. PTSD may develop through many risk factors that may also be risk factors for physical illness. These include genetic vulnerabilities: physiological changes for hypothalamus-pituitary- adrenal function; maladaptive behaviors, including smoking and substance abuse; dysfunctional relationships that can affect collaboration with healthcare providers, and poor functioning that can affect access to health care. Other important and often unmeasured considerations include duration and severity of disease and environmental risk factors (e.g., exposure to chemical warfare). Results should be carefully interpreted, as associations do not necessarily indicate cause and effect, such as which caused which, or whether another factor caused both. PTSD can have negative effects on physical health, but evidence regarding its association with specific physical disorders is lacking (emphasis added). Studies on general populations frequently analyze self- reported medical data without clinical assessment. Large, prospective epidemiologic trials in the general population are needed to examine the relationship of PTSD and physical illnesses. They should employ reliable diagnostic methods, include duration and severity of illness and control analyses for risk factors. Studies are also needed to understand the role various biopsychosocial factors in this complex relationship." The appellant, the Veteran's widow, makes reference to two articles- 1st- a reference from the American Heart Association, dates October 27, 2008- this article defines cardiomyopathy and the different types but gives no discussion or inference regarding an association between PTSD as a possible etiologic cause for cardiomyopathy; 2nd- a reference from the US Dept of Veterans Affairs- printed 11.3.08- this article has information regarding PTSD and associated illnesses and states that "A number of studies have found an association between PTSD and poor cardiovascular health," but no study has been done showing cause and effect. Assessment: The systematic review referenced above is a higher level of evidence; thus we should conclude that PTSD was not likely to cause or aggravate cardiomyopathy, if it had been present in this patient. The objective evidence of record does not show that either cardiomyopathy or hypertension were present in service or for many years thereafter. Nor does it demonstrate that the service connected conditions of hearing loss and tinnitus contributed to cause the Veteran's death. The medical evidence shows that PTSD may be considered a disability of service origin for the purpose of considering whether it may be related to the cause of the Veteran's death. The February 2013 VA physician's opinion and the May 2013 VHA cardiologist's opinion are against a finding that PTSD caused or aggravated the Veteran's cardiomyopathy or hypertension. These opinions are based on thorough review of the record and relevant medical literature, and are uncontroverted in the record. There is no medical opinion evidence of record to support a finding that PTSD contributed to cause the Veteran's death. In addition to the medical evidence, the Board has also considered the statements of the appellant, as well as the evidence she presented in support of her claim. The appellant is competent to offer evidence as to facts within her personal knowledge, such as observable symptoms of the Veteran's disability prior to his death. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as determining the interrelationship between PTSD and cardiomyopathy or hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). This is not a case in which the appellant's lay beliefs alone can serve to establish any association between the Veteran's death and his period of service. The articles submitted by the appellant do not specifically address the Veteran's case and, to the extent that they would support her contentions, are far outweighed by the more thorough and specific analysis of the VHA cardiologist regarding the relationship between PTSD and cardiovascular disorders. The preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs