Citation Nr: 1331966	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-02 760	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


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

T. L. Douglas, Counsel



INTRODUCTION

The appellant is the surviving spouse of the Veteran, who served on active duty from October 1951 to September 1953 and from October 1955 to November 1973.  The Veteran died in July 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the case for additional development in September 2012.

The Board obtained medical expert opinions concerning this matter in April 2013 and May 2013.  See 38 C.F.R. § 20.901(d) (2012).  With respect to each opinion, the appellant and her representative were provided with a copy of the opinion and allowed the appropriate amount of time for response.  See 38 C.F.R. § 20.903 (2012).

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 Veteran died in July 2007 as a result of chronic liver disease due to respiratory failure.

2.  The evidence does not establish that a service-connected disability caused or contributed materially or substantially to the Veteran's death, nor that the cause of death is otherwise related to service.


CONCLUSION OF LAW

A service-connected disability did not cause, hasten, or contribute substantially or materially to the Veteran's death and the criteria for service connection for the cause of the Veteran's death have not been met.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1310 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.312 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate her claim by correspondence dated in August 2007 and October 2012.

When adjudicating a claim for dependency and indemnity compensation (DIC), to include service connection for the cause of the veteran's death, VA must perform a different analysis depending upon whether a veteran was service connected for a disability during his or her lifetime.  In general, a notice for a DIC case 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 claim for service connection for the cause of the veteran's death based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).  The Board finds that the notice provided in this case satisfied the provisions of 38 U.S.C.A. § 5103(a).  

The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service treatment records, VA treatment and examination reports, private treatment records, and the appellant's statements in support of her claim.  The Board also finds that the development requested on remand orders in September 2012 has been substantially completed.  There is no evidence of any additional existing pertinent records.  

The Board notes that recent correspondence sent to the appellant at her address of record has been returned as undeliverable.  The Court has also held that VA's "duty to assist is not always a one-way street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining relevant evidence.  In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process.  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)).  Notification for VA purposes is a written notice sent to the claimant's last address of record.  See 38 C.F.R. § 3.1(q) (2012).  The Board finds that further attempts to obtain additional evidence would be futile.  

The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the appellant's claim.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion as to the issue on appeal has been met.  The available medical evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. 

Service Connection - Cause of Death

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Service incurrence will be presumed for certain chronic diseases if such disability is manifest to a compensable degree within one year after active service.  38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  Due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002).

VA regulations provide that the death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.  38 C.F.R. § 3.312(a) (2012).

The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  38 C.F.R. § 3.312(b).

The regulations under 38 C.F.R. § 3.312(c) also provide that:

(1) 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; 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. 

(2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability.  In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 

(3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 

(4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting 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. 

In order to be a contributory cause of death, it must be shown that there were debilitating effects due to a service-connected disability that made the veteran materially less capable of resisting the effects of the fatal disease or that a service-connected disability had material influence in accelerating death, thereby contributing substantially or materially to the cause of death.  See Lathan v. Brown, 7 Vet. App. 359 (1995).  

Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 (Fed. Cir. 2007).  

The Board may discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429 (1995).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102 (2012).

In this case, the appellant asserts that the Veteran's fatal liver disease included hepatocellular cancer.  She further asserts that hepatocellular cancer, was due, at least in part to his service-connected adenocarcinoma of the prostate.  She contends that despite a radical prostatectomy, the cancer was not eradicated and spread to his liver and ultimately led to his death.  She also contends that all of his service-connected disabilities were contributory causes in his death.  

The Veteran's death certificate shows he died in July 2007 and that the immediate cause of death was chronic liver disease with a contributing cause of respiratory failure.  An autopsy was not performed.  

At the time of his death, a 90 percent combined schedular rating was in effect for the following disabilities: adenocarcinoma of the prostate, status post radical prostatectomy (40 percent disabling); osteoarthritis of the right shoulder (20 percent disabling);osteoarthritis of the left shoulder (20 percent disabling); peripheral vascular insufficiency of the left lower extremity (20 percent disabling); peripheral vascular insufficiency of the right lower extremity (20 percent disabling); hypertension (10 percent disabling); conjunctivitis (10 percent disabling); diabetes mellitus, type II (10 percent disabling); and impotence, evaluated as noncompensable.  The Veteran also had a total disability rating due to individual unemployability (TDIU) as a result of his service-connected disabilities.  The 90 percent combined schedular rating and the TDIU had been in effect since November 15, 2002.  He was also entitled to special monthly compensation based on loss of use of a creative organ.

In February 2012, following the Veteran's death, the RO granted service connection for coronary artery disease associated with herbicide exposure.  The RO assigned an initial 10 percent schedular disability rating for that disorder, effective November 15, 2002, for the purpose of accrued benefits.  The rating was raised to 100 percent, effective February 23, 2004, for the purpose of accrued benefits. 

The pertinent medical evidence of record shows that the Veteran underwent a radical prostatectomy in March 1992 and that a bone scan revealed no metastases.  A June 2007 computerized tomography (CT) scan of the Veteran's abdomen and pelvis revealed a 2.5 inch lesion on the right dome of his liver.  It was noted that the procedure required for a definite diagnosis of the hepatic mass could not be performed.  Hospital records dated from June to July 2007 noted a past history of prostate cancer and that hepatocellular cancer was suspected.  Diagnoses of "chronic liver disease ?" and "malignancy ?" were included in a report signed by the consulting physician on June 30, 2007.  An early July 2007, cytopathology report noted the study was negative for malignancy.  

A November 2008 VA medical opinion found that the Veteran's service-connected disabilities (although both singular and plural language was used) were not pathophysiologically related to the cause of his death, decompensated liver disease and respiratory failure.  In an October 2012 report the physician stated that the Veteran's service-connected prostate adenocarcinoma had been in remission and that in his opinion the cause of death was not caused by or the result of his service-connected prostate adenocarcinoma.

An April 2013 VA medical expert opinion found that, based upon the evidence of record, the Veteran did not have biopsy proven hepatocarcinoma at the time of his death and that even if it had been confirmed it is less likely it was proximately due to or had been aggravated by his service-connected adenocarcinoma of the prostate, status post radical prostatectomy.  A summary of the pertinent evidence of record was provided.  As rationale for the opinion it was noted that the Veteran had advanced cirrhosis (history of alcoholism) and that hepatocellular carcinoma is a primary tumor usually arising from a cirrhotic liver.  In a May 2013 addendum report the physician found the Veteran's cause of death was chronic liver disease and respiratory failure secondary to advanced cirrhosis and complications of liver failure.  It was noted that his service-connected disabilities did not contribute substantially or materially to death, did not combine to cause death, and did not aid or lend assistance to the production of death.  The physician stated there was no causal connection between the service-connected disabilities and the Veteran's death.

Based upon the evidence of record, the Board finds that the Veteran died in July 2007 as a result of chronic liver disease due to respiratory failure and that the evidence does not establish that a service-connected disability caused or contributed materially or substantially to his death, nor that the cause of death is otherwise related to service.  The Board finds that the November 2008, October 2012, April 2013, and May 2013 VA medical opinions in this case are persuasive.  The opinions are shown to have been based upon a thorough review of the evidence of record and adequate rationale.  

The Board further finds that the appellant is competent to provide evidence as to observations and some medical matters, but that her statements are, at most, conclusory assertions of a nexus between the cause of the Veteran's death and service.  She is not shown to have the medical training required to provide etiology opinions.  Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331.  As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, such statements are insufficient to establish service connection.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence).  Therefore, entitlement to service connection for the cause of the Veteran's death must be denied.

When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the claim.


ORDER

Entitlement to service connection for the cause of the Veteran's death is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs