Citation Nr: 1332726	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  10-39 239	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and her two sons


ATTORNEY FOR THE BOARD

D. Schechner, Counsel
INTRODUCTION

The Veteran served on active duty from May 1966 to May 1968.  He died in January 2009.  The appellant is his surviving spouse.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Cleveland, Ohio RO.  In October 2011 a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file.  At the hearing, the appellant was granted a 60 day abeyance period for the submission of additional evidence; in November 2011, additional medical evidence was received.  In May 2012, the Board remanded the matter for additional development.  In July 2013, the Board sought a VHA advisory medical expert opinion.

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.  An amended death certificate shows that the immediate cause of the Veteran's death was chronic obstructive pulmonary disease (COPD) due to tobacco abuse; diabetes mellitus, coronary atherosclerosis, peripheral vascular disease, and congestive heart failure are listed as other significant conditions contributing to death but not resulting in the underlying cause of death.

2.  The Veteran had established service connection for: arteriosclerotic heart disease, diabetic retinopathy, type 2 diabetes mellitus, peripheral neuropathy of both lower extremities, and erectile dysfunction; the combined rating for these disabilities was 90 percent. 

3.  It is reasonably shown that the Veteran's service-connected arteriosclerotic heart disease and diabetes mellitus contributed to cause his death.
CONCLUSION OF LAW

Service connection for the cause of the Veteran's death is warranted.  38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 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.  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).  Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter.

Legal Criteria, Factual Background, and Analysis

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).  

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.  38 C.F.R. § 3.312(c)(3).

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.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or 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 is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran had established service connection for arteriosclerotic heart disease, diabetic retinopathy, type 2 diabetes mellitus, peripheral neuropathy of both lower extremities, and erectile dysfunction; the disabilities were rated 90 percent,  combined.

The Veteran died on January [redacted], 2009.  A death certificate signed two days later by Dr. R.C. cited the immediate cause of death as COPD [chronic obstructive pulmonary disease] of approximately 3 years duration, due to tobacco abuse of uncertain duration; no other disabilities were identified as contributing to the cause of the Veteran's death.  

In an April 2009 medical opinion based on review of the record, the consulting VA physician noted that the cause of the Veteran's death according to the death certificate was COPD secondary to tobacco abuse and that the Veteran had established service connection for arteriosclerotic heart disease and diabetes mellitus (but was denied service connection for COPD).  The r physician opined, "There is very little medical evidence in [the Veteran's] chart that the cause of death was secondary to his heart disease.  It appears that he had been in a nursing home for the past year, was not hospitalized acutely at the time of his death, therefore confirming that his COPD was more likely the cause of his death.  As mentioned above, there is nothing in the medical records to suggest that the arteriosclerotic heart disease materially contributed to his cause of death or hastened his death."

The appellant submitted a supplementary death certificate signed by Dr. R.C. on June 19, 2009.  In addition to COPD due to tobacco abuse, the supplementary death certificate also cited diabetes mellitus, coronary atherosclerosis, peripheral vascular disease, and congestive heart failure as other significant conditions contributing to death but not resulting in the underlying cause of death.

In December 2009, Dr. R.C. stated, "I amended the Death Certificate of [the Veteran] because his medical condition was complicated and he had multiple medical problems contributing to his death including DM [diabetes mellitus], CAD [coronary artery disease], PVD [peripheral vascular disease], and CHF [congestive heart failure].  His amended Death Certificate most clearly communicates his medical conditions contributing to his death."

At the October 2011 Travel Board hearing, the appellant testified that the first death certificate cited the immediate cause of the Veteran's death as COPD, but an amended death certificate also cited contributory causes of death including coronary artery disease, diabetes, vascular disease, and congestive heart failure.  She testified that the same non-VA doctor completed both death certificates, and this doctor worked at the hospice facility where the Veteran was treated until the time of his death.  She testified that, prior to seeking hospice care, he had stents placed to treat his heart disease after suffering a mild heart attack.

In May 2012, the Board remanded the matter to secure outstanding VA treatment records and to obtain a VA medical opinion based on the entire record.

VA and private treatment records from 1992 through January 2009 reflect the Veteran's ongoing treatment for diabetes mellitus, hypertension, gastroesophageal reflux disease (GERD), CAD, COPD, CHF, and cardiovascular accident (CVA), among other disabilities.

In an August 2012 medical opinion, a VA consulting physician opined that the cause of death as noted on the original death certificate appears most consistent with the records, that the cause of death was COPD.  The physician noted that the records reflect that the Veteran had a decline in respiratory function over the years with acute exacerbations leading to home oxygen treatment then tracheostomy.  The physician noted there are records of exacerbations not long before the Veteran's death due to mucus plugging for which he was treated emergently.  The Veteran was living in a facility associated with hospice, and notes within the month of his death reflect acute desaturations throughout from mucus plugs.  The physician noted that there are records regarding his other diagnoses, including the service connected diagnoses, and opined that from the hospital labs and other findings over a year or so before his death, these conditions appear to have been stable.  The physician noted that a supplementary medical certificate was submitted on June 22, 2009 (after some type of VA denial of benefits), in which the physician included other conditions which may have contributed to the Veteran's death; the physician opined that although the human body does not carry conditions in isolation, the conditions listed were either stable or not acutely involved in the events prompting recent emergency room visits which are more consistent with the COPD exacerbations and long-term sequelae resulting in the unfortunate decline the Veteran experienced.  The physician cited events of note in the Veteran's medical history including: a February 1998 acute exacerbation of COPD with chronic bronchitis and hypoxemia; and a June 1998 pulmonary physician's opinion of severe but stable COPD and possible obstructive sleep apnea, at which time the Veteran was already on oxygen nearly continuously but still smoked a half pack per day.  There was some suggestion from the records that the Veteran had obesity, which the physician opined may have contributed to a Pickwickian syndrome, however it does not appear to have required a ventilator but only a tracheostomy with oxygen.  The physician noted an April 2007 acute desaturation sinus tachycardia with PACS and notable laboratory findings, although the physician noted that these findings were apparently more stable in later records.  The physician noted an April 2008 acute exacerbation with differential diagnosis of myocardial infarction, CHF, pulmonary embolism, and sepsis; it appears the Veteran required a tracheostomy about this time, and at some unnoted point he had a g-tube placed, possibly after a stroke noted in the records.  A December 2008 note indicated the Veteran had been intubated around January 2008 and required tracheostomy, and he had been back and forth in the past year between the hospital and nursing home due to desaturations; a chest X-ray was negative, a blood culture was positive, and there was tachycardia then a normal rate the following day.  The physician noted that in January 2009, the Veteran had transient hypoxia due to mucous plugging; the nursing home indicated he was short of breath although the Veteran indicated he was "fine".  The notes reflect 64 percent saturations prior to emergency medical treatment and 88 percent after placement of an oxygen mask.  The Veteran was noted to be a "full code" although the records suggest that hospice may have been involved around this time; the reviewing physician noted that the prior diagnoses of COPD, CVA, hypertension, CHF, and myocardial infarction are listed in the history but the final diagnostic impression was that these were not actively involved in that emergency room visit; a chest X-ray did not support CHF, and an EKG was unchanged.  The Veteran was stable without desaturations during that visit and was not deemed to be in CHF, and he was discharged with supportive care and antibiotics.  The physician noted that diabetes is in the history, but the glucose was 152 (not uncontrolled), carbon dioxide was 40 (due to the COPD); the treating physician did not opine on "acute or acute on chronic" cardiac condition.  A later January 2009 palliative care note from the VA records showed the Veteran was associated with Bridge Hospice, and he had been in a local nursing home for about one year, then hospice, and the question was whether he would be able to go home; the note indicates that he had a decline in the interim and was not discharged to home.

Based on a review of the records, the August 2012 VA consulting physician opined that the evidence of record supports a gradual decline in the Veteran's respiratory function due to the COPD condition, and his death appears to have been due to further decline from desaturations, whether related to mucous plugging or progressive respiratory decline, which was his cause of death.  Regarding the other (service-connected) conditions significantly contributing to his death, the physician opined that this would be reasonable to consider if he had acute exacerbations of these underlying conditions in the months nearer to his death, yet the available evidence of record does not reflect this to be the case.  The physician therefore opined that it is less likely than not that the service-connected disabilities (arteriosclerotic heart disease, diabetes mellitus, peripheral vascular disease, or CHF) were significant factors causing the Veteran's death as opposed to the COPD and progressive pulmonary decline.

In July 2013, the Board found that the opinions then of record were inadequate in that they did not clearly address the provisions of 38 C.F.R. § 3.312(c)(3).  The Board requested a VHA medical expert advisory opinion, noting in the request that the Veteran's service connected disabilities affected the heart and pancreas, both of which are indisputably vital organs "distinguished from muscular or skeletal functions".  The Board further noted that, although the Veteran's combined disability rating was less than 100 percent, all of his service connected disabilities resulted from a common etiology and are therefore considered as one disability, rated 90 percent.

The consulting VHA expert noted that the Veteran was in hospice when he died in January 2009, and that same month the appellant was requesting to bring the Veteran home before he died.  The physician noted that the Veteran had not been seen for VA treatment since 2007, at which time he was followed for COPD, CAD, diabetes, and hypertension, with treatment including home oxygen at all times, Lasix, Captopril, ASA, Statin, theophylline and albuterol inhalers.  The physician noted that prior treatment records showed multiple clinic visits dating back to the early 1990s showing treatment for chronic bronchitis and ongoing smoking, with findings in March 1998 suggestive of moderate to severe COPD, sleep studies in December 1998 showing obstructive sleep apnea, a February 1998 pulmonologist assessment of cor pulmonale related CHF due to the primary respiratory disorder, and a tracheostomy probably during his later hospitalization in 2008.  The reviewing physician noted that the STRs showed no diagnosis of asthma or COPD but the notable diagnoses in service included hypertension and other minor ailments.  The reviewing physician noted that an initial cardiac work-up in 1998 was negative for ischemia with a negative dobutamine stress echocardiogram in June 1998; however, the echocardiogram did show left ventricular hypertrophy and diastolic dysfunction likely from the hypertension, and evidence of right heart dilatation noted on a February 1998 echocardiogram was likely secondary to chronic bronchitis and sleep apnea syndrome.  The physician noted that three Medtronic stents were placed around September 2005 for arteriosclerotic heart disease.  The physician noted that diabetes had been present for a long time and was variably controlled.

The VHA expert noted that the Veteran was hospitalized for emergent treatment in January 2008 with respiratory failure when he was intubated, and he had massive leg edema, obesity, and elevated blood pressure and heart rate.  An EKG showed no acute changes of ischemia and a chest X-ray showed some pulmonary vascular congestion.  Differential diagnoses were given of sepsis vs. rule-out myocardial infarction, CHF, or pulmonary embolism; the reviewing physician noted that the hospitalization records were unavailable to report a final assessment, although his suspicion was that the Veteran probably had a tracheotomy performed during the admission and may have been transferred to the nursing home upon discharge.  The expert noted that the Veteran was brought back for emergent care on January 12, 2009 from the nursing home with a report of decrease in pulse oximetry and hypotension; a chest X-ray showed no acute findings of pneumonia or heart failure, no evidence of CHF was noted, and he was discharged with a diagnosis of "transient hypotension and mucus plug".  He subsequently died on January [redacted], 2009.

The VHA consulting expert concluded that the Veteran seemed to have COPD, obesity, and sleep apnea/obesity hypoventilation syndrome with chronic respiratory failure as his major problem leading to his death as the primary cause.  However, he also had other major illnesses, namely diabetes and CAD.  The reviewing physician stated that the literature suggests a decrease in life expectancy in patients with diabetes compared to the general population; therefore, even though his immediate and primary cause of death seems to be respiratory diseases for which he was not service connected, diabetes had a role to play in his mortality.  The reviewing physician stated that there is significant literature supporting this tenet.  The physician noted that the Veteran had only moderately controlled diabetes and opined that there is a greater than 50 percent chance of contribution of this illness in his death.  Second, the reviewing physician noted that the records also show the Veteran had elevated troponin levels both in his emergency room visits in 2008 and in January 2009, and there is also significant evidence in the literature describing increased mortality with troponin elevations in patients without myocardial infarction.  The expert attached as supporting rationale a study showing increased mortality in patients with elevated troponin in the setting of acute exacerbation of COPD.  The VHA expert noted that the Veteran's cause of death was COPD, sleep apnea and chronic respiratory failure related issues, but opined that there is a more than 50 percent likelihood of contribution from both diabetes and elevated troponin likely from his chronic atherosclerotic heart disease.

The appellant claims, in essence, that the Veteran's service-connected arteriosclerotic heart disease and his diabetes mellitus with complications contributed to his death.  The medical opinions in this matter are conflicting.  The Board notes that the April 2009 and August 2012 VA physicians' opinions against the appellant's claim focus extensively on the impact of the Veteran's heart disease being a contributory cause, citing to clinical data that weigh against the heart disease being a significant factor.  Their explanations of rationale are (cumulatively) very thorough and as to the impact of the Veteran's heart disease as a contributory cause of death.  However, neither discusses the studies cited by the VHA expert, and therefore the opinions against the appellant's claim are less complete, and merit less probative value, than the opinion offered by the VHA expert.  The studies cited by the VHA expert support that the Veteran's service connected diabetes and elevated troponin levels (due to serviced-connected arteriosclerotic heart disease) would have contributed to cause his death.  The Board finds the VHA expert's opinion persuasive.

In summary, the Board finds that the evidence reasonably establishes that the Veteran's service-connected disabilities, arteriosclerotic heart disease and diabetes with complications, had debilitating effects that rendered him less capable of resisting the effects of the nonservice-connected COPD that was the primary cause of his death, and thus contributed to cause his death.  Consequently, service connection for the cause of the Veteran's death is warranted.


ORDER

The appeal seeking 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