Citation Nr: 1330784 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 11-26 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to dependency and indemnity compensation (DIC)/service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: George J. Singley, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Son ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty with the U.S. Army from November 1942 to November 1945. He died in January 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an June 2010 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In July 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA); such opinion was received in September 2013. Please note 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 January 2009; the immediate cause of his death was myocardial infarction; no contributory cause was listed. 2. At the time of his death, the Veteran had established service connection for status post total knee arthroplasty and status post left tibial osteotomy; he was in receipt of a total disability rating based on individual unemployability (TDIU) effective from October 2004. 3. It is reasonably shown that the Veteran's service-connected disabilities contributed substantially or materially to his death by myocardial infarction. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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 claim. However, inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Legal criteria, factual background, and analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, to include Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, 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. Dependency and Indemnity Compensation (DIC) is payable if a Veteran died while on active duty service or from disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1310(a)(b); 38 C.F.R. § 3.312. At the time of his death, the Veteran had established service connection for status post total knee arthroplasty and status post left tibial osteotomy; he had been awarded a TDIU rating effective from October 2004. At issue is whether his service-connected disabilities (status post total knee arthroplasty and status post left tibial osteotomy) played a causal role in his death, or whether the cause of his death was a disability that may be considered a service-connected. The Veteran's death certificate lists "myocardial infarction" as the cause of his death. The appellant alleges that his service-connected lower extremity disabilities substantially or materially contributed to cause his death. 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 was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there is a causal connection. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Certain chronic diseases (including cardiovascular disease) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for cardiovascular disease). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either (a) caused or (b) aggravated by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). A November 2009 medical opinion from a VA physician addresses a key contention raised by the appellant as of that time: that the Veteran's chronic lower extremity edema (associated with service-connected disabilities) could have contributed to the cause of the Veteran's death. The November 2009 VA medical opinion refers to this contention as "medical nonsense," and concludes that the "death from myocardial infarction is of absolutely no relationship to any compensable disorder." A January 2010 medical opinion from a VA physician concludes that "I know of no medical information to in any way implicate chronic peripheral edema in the cause of death of this gentleman...." The same opinion explains that "the veteran had difficulty with lipid-lowering agents, and consequently his cholesterol was not well controlled whatsoever. It is my medical opinion that it is more likely than not that ... the inability to control this veteran's cholesterol ... led to his death from myocardial infarction as a contributing factor." The opinion finds that "chronic lower extremity edema, a consequence of vascular disease, but venous in origin ... did not more likely than not contribute materially to the veteran's death." The appellant submitted a February 2012 medical opinion from a private cardiologist who was directly involved in the Veteran's medical care. This medical opinion states, in pertinent part, that the Veteran "suffered from hypertension, hyperlipidemia, coronary artery disease and atrial arrythmia's [sic]. None of these can be specifically attributed to the chronic edema...." However, the February 2012 medical opinion presents a new comment raising a new pertinent theory in this case: "the chronic edema of his lower extremities and any difficulties, caused by that edema, in his ability to ambulate and complete his activities of daily living, would certainly be considered a chronic stress on his cardiovascular system." Notably, an August 2010 letter from the same private cardiologist stated that "I am unable to conclude that the chronic edema state can be implicated in his death. His well known cardiovascular history including coronary artery bypass graft surgery in 2001 would have been much more likely to be implicated in his demise." The above-discussed evidence appears to indicate that the Veteran's peripheral edema associated with service-connected lower extremity disabilities is not viewed by medical experts as a potential direct cause of the Veteran's death. However, a cardiologist familiar with the Veteran's care has implicated associated limitations on the Veteran's ability to ambulate as a "chronic stress on his cardiovascular system," which appears to suggest that the service-connected lower extremity disabilities indeed played some role in the decline of the Veteran's cardiovascular health, leading to his death. Although the private cardiologist stops short of stating that the Veteran's lower extremity disabilities substantially or materially contributed to his death, the Board finds that the cardiologist's comment concerning the Veteran's limited ambulation warrants consideration. The suggestion that the Veteran's limited mobility/activity level (due to lower extremity disabilities and edema) may have been a factor in the inability to manage his cardiovascular health (including the cited uncontrolled cholesterol levels) was not clearly addressed by the prior VA medical opinions of record. For the purposes of this case, in determining whether a 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 casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). In July 2013, the Board requested that a VHA medical expert review the Veteran's claims file, including the February 2012 private cardiologist's statement and the VA medical opinions dated in November 2009 and January 2010, and address the critical medical questions in this case. The r September 2013 VHA expert's response states, "this patient was limited in his ability to participate in physical activity because of conditions related to his service-connected knee problems, and this inactivity was an important contributor to this Veteran's death by myocardial infarction." The VHA expert expresses that "it is more likely than not (> 50% likelihood) that his Service Connected conditions did in fact contribute to his death by myocardial infarction due to chronic limitation in ambulation and activity." The VHA expert explains that "[a] significant risk factor for coronary artery disease and myocardial infarction is physical inactivity as documented by many sources." The VHA expert cites that the "National Institutes of Health show nearly 35% of Cardiac death/ coronary disease mortality is due to physical inactivity," and explains that the coronary vascular disease risk of physical inactivity is the same as smoking, hypertension, and elevated cholesterol." The VHA expert cites additional evidence, including an article published in the American Heart Association's Cardiology Journal. The VHA expert discusses that the Veteran had a documented inability to participate in physical activity; the Veteran's ambulation was impaired by factors including hip pain. The VHA expert found that "[i]t is quite likely that hip pain was wholly or partially the result of gait abnormalities caused by the damage in his knees," and that the service-connected knee-related surgeries also likely contributed to his venous vascular disease and subsequent bilateral peripheral edema which also impaired his mobility. Additionally, the VHA expert favorably discusses the February 2012 medical opinion of the Veteran's private cardiologist and further explains that the Veteran was unable, due to the service-connected disabilities, to do the 30 minutes of activity per day to reduce cardiovascular risk associated with hypertension. The record includes both medical evidence that tends to support the appellant's claim of service connection for cause of the Veteran's death and medical evidence that is against her claim. When evaluating the evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence against the appellant's claim features the November 2009 and January 2010 medical opinions of VA physicians that it was less likely than not that the Veteran's service-connected disability had significantly contributed to, caused, or aggravated the pathology leading to his myocardial infarction death. An August 2010 statement from the Veteran's own private cardiologist also indicated that chronic edema could not be implicated in the Veteran's death, and portions of the February 2012 statement from the same private cardiologist indicate that there cannot be a specific direct attribution of cardiovascular disease to the Veteran's service-connected chronic edema from shrapnel wounds. The evidence that tends to support the appellant's claim begins with the portion of the February 2012 medical opinion from the Veteran's private cardiologist, directly familiar with the Veteran's case from involvement in his care, explaining that that the chronic edema of the lower extremities presented a "chronic stress on his cardiovascular system" inasmuch as the knee disability and chronic edema caused a limitation of physical activity. Ultimately, the most significant favorable evidence supporting the appellant's claim is the September 2013 VHA medical expert advisory opinion which provides a persuasive rationale for concluding that it is likely that the Veteran's inability to perform sufficient daily physical activity (1) was a consequence of the service-connected knee disability and edema, and (2) was a substantially contributory cause of the Veteran's cardiovascular pathology leading to his death by myocardial infarction. The Board places greater weight on the February 2012 private opinion from the Veteran's cardiologist and in particular the September 2013 VHA medical advisory opinion; they discuss and contemplate the significance of the Veteran's physical inactivity due to knee disability and edema whereas the negative evidence does not so clearly contemplate this aspect of the knee disability and edema; the September 2013 VHA medical advisory opinion in particular explains a persuasive rationale and cites to current medical literature and medical principles in support of the opinion provided. Notably, the Board finds no reason to question the opinion of the VHA medical advisor given his expertise and the fact that his opinion was based on an extensive review of the claims file and was accompanied by a detailed explanation of rationale, with citation to the factual data. Resolving any remaining reasonable doubt in the appellant's favor, the Board concludes that the competent evidence of record supports her claim. Consequently, service connection for the cause of the Veteran's death is warranted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs