Citation Nr: 1332191 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 07-26 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from June 1979 to June 1983. The Veteran died in August 2005. The appellant is the Veteran's widow. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This matter was previously before the Board in March 2012. At that time the Board denied entitlement to service connection for the cause of the Veteran's death and entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the Court granted Joint Motion for Remand (JMR) in which the parties agreed that the denial of the claim of entitlement to DIC under 38 U.S.C.A. § 1318 should remain undisturbed; but the Board's decision denying entitlement to service connection for the cause of the Veteran's death be vacated and remanded for further consideration. FINDINGS OF FACT 1. The cause of death was probable cardiac arrhythmia due to cardiomyopathy and the significant conditions contributing to death but not resulting in the underlying cause were end-stage renal disease and hypertension. 2. Affording the appellant the benefit of the doubt, the Veteran's cardiomyopathy and end-stage renal disease were related to non-steroidal anti-inflammatory drugs (NSAIDs) taken to treat service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2013). 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 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 the contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303(a), 3.312 (2013). A service-connected disability is the principal cause of death when that 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). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The Veteran died in August 2005 as a result of probable cardiac arrhythmia due to cardiomyopathy. The significant conditions contributing to death but not resulting in the underlying cause were end-stage renal disease and hypertension. The appellant, the Veteran's widow, contends that the Veteran's death was the result of hypertension which onset in service. She has also reported that because of the severe pain from his service-connected conditions, the Veteran was unable to exercise which contributed to the development of obesity and hypertension, which lead to his death. In support of her contentions, she has submitted statements from A.H., M.D., who has indicated his belief that the Veteran's death is the result of service. He has provided opinions that the Veteran's death is the result of hypertensive cardiovascular disease which is the result of hypertension which onset in service. He has explained that he believes the hypertension onset in service because each reported blood pressure reading in service showed "markedly elevated blood pressure" which was "evidence of pre-hypertension or stage 1 hypertension." Dr. H. also explained his belief that the hypertension caused the Veteran's death, citing a textbook which reports that "long-term elevation of blood pressure leads to hypertensive heart disease, atherosclerosis, peripheral vascular disease, and renal deficiency," that "fibroblast proliferation and deposition of extracellular collagen accompanies these cellular changes and contributes to cardiomyopathy", and that "myopathy develops in response to the known trigger of hypertension." Dr. H. has added that the Veteran's early hypertension was one of the major causes, if not the only cause, of end-stage renal disease, cardiomyopathy, and cardiac arrhythmia and that the "literature notes that hypertension is the trigger for all of the cardiovascular injuries that occurred because of the chronic hypertension." Dr. H. has also reported that the service-connected disabilities resulted in chronic pain which lead to stress which is one of the five major contributors to hypertensive cardiac disease and that one of the five major causes of hypertension and early cardiac death is chronic pain. Dr. H. has alternately determined that the Veteran's "death was based on hypertension, arrhythmias, and possibly the Indocin he was using for chronic knee and ankle pain." Dr. H. also noted that the Veteran's death was caused by medicamentosis toxicosis and failure of physicians to properly monitor end-stage renal disease and medication toxicity. See December 2006, October 2007, April 2009, and February 2012 statements. The service treatment records reflect no treatment, histories, or diagnoses for hypertension, renal disease, or cardiomyopathy, and the April 1983 separation examination records normal clinical findings for all relevant systems, "normal" blood pressure reading (122/84), and negative histories as to symptoms suggestive of hypertension, renal disease, or cardiomyopathy such as heart trouble, high blood pressure, or jaundice or hepatitis. A July 1983 VA treatment record indicates that blood pressure was 130/86. An October 1983 VA examination record reveals normal blood pressure (110/70), normal cardiovascular findings, normal genitourinary findings, and normal x-ray images of the heart and aorta. A September 1985 VA x-ray reveals the cardiomediastinal silhouette is normal. A September 1985 VA examination record indicates that blood pressure was 134/90. June and July 1986 private treatment records reflect blood pressure readings of 128/90, 150/95, and 130/90. The record indicates that the Veteran was treated for gastritis which was believed to be induced by alcohol. January 1987 private treatment records reflect blood pressure readings of 126/82, 130/94, 140/90, and 138/94. The records reveal assessments including elevated blood pressure and acute gout attack, for which the Veteran was prescribed Indocin. February 1987 private treatment records reflect the Veteran's history of headaches, dizziness, and nausea. The records reveal blood pressure readings of 130/98, 140/100, and 160/110. The Veteran was assessed with increased blood pressure, gastritis, and history of gout without symptoms and was advised to stop taking the Indocin. March and May 1987 private treatment records reflect blood pressure readings of 130/80 and 120/80 respectively. A November 1987 private treatment record reflects the Veteran's history of cough and chest congestion. The record reveals a blood pressure reading of 140/100. The Veteran was assessed with bronchitis with bronchospasm. February 1988 private treatment records reflect the Veteran's 10 day history of chest pain. The Veteran also reported smoking 4-5 cigarettes a day. Examination revealed a grade I very short systolic murmur and systolic clicks. Blood pressure was 126/100. He was assessed with rule out mitral valve prolapse and ordered an echocardiogram. A June 1988 private treatment record reflects a blood pressure reading of 140/100. An August 1988 private treatment record reflects a complaint of syncope and a report of a black-out episode. Blood pressure was 154/104. A subsequent August 1988 private treatment record reflects a blood pressure reading of 118/88 and an assessment of resolving viral laryngitis/bronchitis. A March 1990 private treatment record reveals a blood pressure reading of 130/98. The record notes assessments of bursitis of the left knee and hypertension and the provision of Indocin. A May 1990 treatment note indicates that the Veteran takes Indocin regularly and if he stops his left big toe flares up. A June 1990 treatment record indicates that the Indocin was discontinued due to the development of gastritis. An August 1990 treatment note reports that only Indocin works to control the Veteran's gout attacks. An April 1991 private treatment record indicates that the Veteran reported injuring his back while walking. He was noted to be prescribed "Indomethacin helped (Hx gout)." It was noted that pain was decreased with Indomethacin. An April 1993 private treatment record reflects the Veteran's history of chest pain for approximately one day. The record reveals a blood pressure reading of 142/90 and a finding of borderline high blood pressure. It was noted that the Veteran was on Indocin for gout and that it was discontinued. The Veteran was assessed with "costochondritis +/- pericarditis" or mild occupational inhalant injury. In July 1993 the impression was probable gout with tenosynovitis. The Veteran was prescribed Indocin. The Veteran's blood pressure was 130/100. In March 1994 the Veteran was reported to have a history of gout and complaint of flare. The assessment was gout, early flare and the Veteran was prescribed Indocin. In December 1994 the Veteran was noted to be taking Indomethacin. December 1996 VA treatment records reflect diagnoses of progressive chronic renal insufficiency and proteinuria, probably from hypertension. January 1997 VA treatment records reflect that the diagnosis was changed to nephritic/mixed nephrotic syndrome. Biopsies were conducted and the Veteran was diagnosed with chronic renal failure factor with nephrotic syndrome secondary to focal segmental glomerulosclerosis, which subsequently developed into end-stage renal disease. See, e.g., June 1998 VA treatment record; February 2004 Kaiser treatment record. The Veteran was noted to have been taking Indocin for 10 years in January 1997. In September 1997 the Veteran reported that he had been having some kidney problems from taking too much medication for arthritis. In November 2004 the Veteran was noted to have end-stage renal disease from hypertension. In May 2007, VA obtained a medical opinion as to whether the Veteran's hypertension was related to service. The physician noted that he had reviewed the claims file which revealed evidence of chronic renal failure, focal segmental glomerular sclerosis or nonsteroidal anti-inflammatory abuse, and hypertension in the 1990s. The physician further noted that the Veteran's blood pressure "seemed to be persistently elevated" from 1987 forward. The physician stated that prior to 1986, there did not "appear to be significant readings in which [the Veteran's] blood pressure [was] in the class 1, stage 1 hypertension." The physician explained that the in-service readings would be considered in the "pre-hypertensive range" but not in the stage 1 hypertension range. The physician determined that, "[r]egarding hypertension, the [Veteran's] blood pressure in service were in the 'pre-hypertension' range and the Veteran does not appear to have maintained the criteria for stage 1 hypertension while in service." With regard to whether the Veteran's hypertension was related to service, the author noted that the Veteran was not diagnosed in service, that the Veteran's blood pressure was not hypertensive in service, and that hypertension started in approximately 1987. The physician explained that "pre-hypertension' is a condition which is felt by the American College of Cardiology to be a condition which should be treated in order to prevent the development of hypertension." In May 2011, VA obtained a medical opinion from a Veterans Health Administration (VHA) cardiologist as to whether it was at least as likely as not that the Veteran's hypertension onset in service or was related to service. The specialist reported that he had reviewed the blood pressure records from service and determined that they did not meet the Joint National Commission criteria for hypertension. The specialist noted that blood pressure was normal in 1983 and that hypertension was not diagnosed until January 1987, approximately 3.5 years after separation. The specialist further noted that the medical records revealed a history of alcohol abuse and alcohol related pancreatitis, etc., explaining that chronic alcohol use can lead to hypertension and cardiomyopathy. In June 2011, the specialist provided an addendum. He explained that the Joint National Commission classification of hypertension was based on the average of two or more seated blood pressures at each of two or more visits to an office or clinic; no conclusion could be made from a single blood pressure recording. The specialist noted that the Veteran's blood pressure was normal as late as October 1983. He explained that according to the Joint National Commission criteria, no conclusions could be made to determine that the Veteran had pre-hypertension from a single blood pressure measurement before the normal reading in October 1983. The specialist reported that it was not likely that the hypertension onset during service based on review of the record. He explained that no conclusions about pre-hypertension could be made based on the blood pressure readings recorded in October 1979, January 1970, and April 1981, per the aforementioned criteria. The specialist noted that he had reviewed the findings that the blood pressure was in "pre-hypertensive range." The specialist reiterated that these conclusions were based on single blood pressure records, however, and he indicated that this could not be concluded unless average blood pressure was taken. The specialist concluded by finding that hypertension was not diagnosed during service and that it was first diagnosed in 1987. The specialist noted that whether chronic pain caused or contributed to the Veteran's death was outside the expert's specialty to comment on and that this should be referred to a chronic pain specialist. The medical expert further stated that the question of whether the use of Indocin caused or contributed to the Veteran's death, whether it caused chronic renal disease was also outside of the expert's specialty and that this should be referred to a nephrologist. In October 2011, VA obtained an opinion from a VHA specialist as to whether the Veteran's chronic pain contributed to his death. The specialist noted that he had reviewed the file and determined that although the Veteran had multiple problems with his ankle and knee pain, there was no documentation that the pains contributed to his death. In December 2011, VA obtained an opinion from a VHA nephrologist as to whether the Veteran's end-stage liver disease was related to the medication prescribed to the Veteran. The specialist noted that a kidney biopsy in February 1997 showed chronic tubulointerstitial changes which could be secondary to focal segmental glomerulosclerosis secondary to nonsteroidal anti-inflammatory abuse and that a consult report by the pathologist indicated that the Veteran had been taking Indomethacin for many years at a reported dosage of one gram per day. The specialist noted that the Veteran had many medical problems, for which he was provided various medications between January 1987 and June 1995. The specialist noted that the amount of medication prescribed was not excessive, and he indicated that in order for the Veteran to take one gram of Indocin a day, he would have to ingest approximately 20 pills daily and the specialist found it "highly unlikely" that a physician would prescribe that many pills daily or that a pharmacist would fill that prescription. The specialist noted that nonsteroidal anti-inflammatory drugs may have caused some of the Veteran's renal problems if he took more medication than instructed. However, the specialist determined that because of the Veteran's multiple medical problems, it was unlikely that they could safely state one specific cause of the end-stage renal disease; rather it was multifactoral causes. The specialist concluded that the anti-inflammatory use did not solely cause the renal failure, but a constellation of problems including hypertension, gout, nephritic syndrome, and cardiomyopathy. In a private medical opinion dated in July 2013, it was noted that the Veteran's immediate cause of death listed on his death certificate was "probable cardiac arrhythmia" and that listed under underlying causes contributing to his death was "cardiomyopathy." Listed under other significant conditions contributing to death but not resulting in the underlying case were, "end-stage renal disease" and "hypertension." The physician noted that the Veteran started taking indomethacin, a strong NSAID in September 1979. He was again prescribed indomethacin in October 1979 and was provided with the medication on multiple occasions after service. The physician noted that in January 1995 it was noted that the Veteran "takes Indomethacin for joint pain on a p.r.n. basis." He was prescribed another NSAID in June 1995 and it was noted in December 1995 that the Veteran was taking naproxen 500 mg twice daily. In January 1997 it was documented that the Veteran was taking naproxen 500 mg with each meal as well as piroxicam, another NSAID, 20 mg per day. He was noted to still be taking naproxen in January 1997 despite his worsening renal function. Nephrology clinic notes revealed that the Veteran had a ten year history of indomethacin use before switching to naproxen. The physician noted that the Veteran used indomethacin for orthopedic complaints from 1979 until 1995 which predated the use of indomethacin for gout flare. The physician reported that after reviewing the medical records, it is clear that the vast majority of the Veteran's NSAID use was for treatment of his service connected orthopedic issues. It was noted that although indomethacin is used to treat acute gout, its use is typically limited to very short course until symptoms subside and would not be used chronically over the course of 10 years or more for the treatment of gout. The physician reported that a kidney biopsy in February 1997 demonstrated chronic tubule-interstitial changes and mild arteriosclerosis. The pathologist report revealed "chronic tubule-interstitial changes could be either due to focal segmental glomerulosclerosis or non-steroidal anti-inflammatory drug (NSAID) abuse." The physician reported that, other than the Veteran's race, he did not have any significant risk factors for the development of focal segmental glomerulosclerosis. However, it was noted that NSAIDs are well described mediators of acute kidney injury that can lead to acute interstitial nephritis, the nephritic syndrome and end stage renal disease. The Veteran was reported to be using acetaminophen and Vicodin for chronic pain in April 1999. The use of acetaminophen was reported to be well documented up to February 2003 when the Veteran's nephrologist recommended changing to tramadol for pain and to avoid the use of acetaminophen because of inherent renal toxicity. The Veteran continued to use Vicodin for chronic orthopedic pain and in November 2003 was found to be in acute renal failure. The physician noted that it is well documented that the Veteran used NSAIDs since the time of his initial in-service orthopedic problems in 1979 until the time of his first kidney biopsy in 1997. He then continued using acetaminophen and acetaminophen containing products until at least 2003. The physician noted that the Veteran's gout and cardiomyopathy are the result of renal failure. The physician rendered the opinion that it is more likely than not that the Veteran's long term use of NSAIDs and acetaminophen containing medications to treat his service connected orthopedic disabilities contributed to and hastened the development of his end stage renal disease and eventual death. The physician found that based upon the lack of significant risk factors for development of renal failure the prolonged use of NSAIDs and acetaminophen are likely culprits in the development of his renal disease. The physician disagreed with the assertions that the Veteran's prescribed indomethacin was solely for the treatment of gout due to the record clearly showing it was used chronically to treat his musculoskeletal symptoms. In addition, the physician found that the December 2011 medical opinion greatly underestimated the time frame in which the Veteran used toxic medications, and the physician disagreed with the conclusion that nephritic syndrome, gout, or a cardiomyopathy had anything to do with the development of his renal failure. Entitlement to service connection for the cause of the Veteran's death is warranted. At the time of the Veteran's death the Veteran was in receipt of service-connected disability benefits for bilateral pes planus, chronic right ankle strain, chondromalacia patella of the right knee, chondromalacia patella of the left knee, asthma, and arthritis of the left hip associated with chondromalacia patella of the left knee. Although there is evidence that the Veteran was prescribed NSAIDs for gout, the evidence is at least in equipoise that the Veteran was prescribed NSAIDs to treat the chronic pain associated with his service connected orthopedic disabilities. In addition, the evidence is at least in equipoise that the Veteran's use of NSAIDs resulted in his development of end-stage renal disease. Furthermore, a private physician has rendered the opinion that the Veteran's cardiomyopathy, the cause of the Veteran's death listed on the death certificate, is the result of renal failure. The Veteran's death certificate reveals and the private physician has opined that the Veteran's end-stage renal disease contributed to and hastened the Veteran's death. As such, the Board finds that the evidence is at least in equipoise that the Veteran's death is related to the treatment of his service-connected disabilities. Thus, service connection for the cause of the Veteran's death is granted. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs