Citation Nr: 1333832 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-38 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri 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 ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1940 to September 1945. The Veteran died in January 2008 and the appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for the cause of the Veteran's death. In October 2012, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. 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 2008 due to the effects of respiratory failure, pneumonia, renal failure, and cerebral infarctions. 2. At the time of his death in January 2008, the Veteran was service-connected for posttraumatic stress disorder (PTSD), cold weather injuries of the upper and lower extremities, residuals of a gunshot wound to the right knee, hearing loss, and tinnitus. 3. The Veteran's pneumonia, renal failure, and cerebral infarctions were not incurred during service or until many years after discharge and are not otherwise etiologically related to active duty service or a service-connected disability. 4. Service-connected PTSD and cold weather injuries of the upper and lower extremities did not cause or contribute substantially or materially to the Veteran's death. CONCLUSION OF LAW Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in January 2008. The death certificate, which was signed by a physician, lists the cause of death as respiratory failure, pneumonia, renal failure, and cerebral infarctions. The appellant contends that the Veteran's service-connected cold weather injuries of the upper and lower extremities caused vascular complications that led to cerebral infarctions. She also contends that the Veteran's service-connected PTSD contributed to his diabetes and vascular disease which in turn led to the Veteran's death. In the instance of a Veteran's death, certain enumerated survivors are eligible for compensation if the death is found to be service connected. The evidence must show that a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of the Veteran's death. For a service connected disability to be the cause of death it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death. Rather, it must be shown that there was a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including cardiovascular-renal disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. At the time of the Veteran's death, he was service-connected for PTSD, cold weather injuries of the upper and lower extremities, residuals of a gunshot wound to the right knee, hearing loss, and tinnitus. The appellant's contentions with respect to the Veteran's death are essentially two-fold. First, she contends that the Veteran's cold weather injuries were the cause of his vascular complications that eventually led to a stroke and death. Second, she contends that stress associated with the Veteran's PTSD weakened his overall health and contributed to death through diabetes, vascular problems, and pneumonia. Initially, the Board notes that service treatment records are negative for evidence of pneumonia, renal failure, and cerebral infarctions. There are no complaints of respiratory, renal, or vascular problems during active duty, and the Veteran was physically normal at the September 1945 separation examination. There is also no post-service evidence of cardiovascular, respiratory, or renal disabilities until more than 50 years after the Veteran's separation from military service. During the Veteran's initial September 2002 examination at the Kansas City VA Medical Center (VAMC), a history of hypertension was identified. VA examinations conducted in November 2002 and January 2003 in connection with claims for benefits also identified a history of diabetes, chronic renal insufficiency, coronary artery disease (CAD) and chronic lymphocytic leukemia (CLL). Peripheral vascular disease was listed on a problem list provided by the Veteran's primary care physician in June 2003, and a February 2004 MRI confirmed the presence of carotid stenosis. However, these findings were made many decades after the Veteran's discharge from military service. On January 8, 2008, the Veteran reported to the emergency department of St. Luke's Northland Hospital with complaints of left shoulder and left hip pain following a fall. He was admitted to the hospital with diagnoses of a dislocated left shoulder, left hip pain, poorly controlled hypertension, and diabetes mellitus. The next day, the Veteran's physician spoke to the Veteran's family to obtain a more complete medical history. The family reported that the Veteran experienced a chronic gait disturbance, significant visual impairment due to macular degeneration, and recent episodes of confusion and disorientation. An MRI of the brain indicated several areas of infarct, occlusive disease, and chronic ischemic changes. The Veteran's gait problems were attributed to cerebellar degeneration and visual impairment. The small vessel ischemic changes were characterized as secondary to poorly controlled hypertension and diabetes. On January 12, 2008, the Veteran developed renal insufficiency while hospitalized with elevated creatinine levels attributed to hypotension. Three days later, on January 15, he developed shortness of breath, hypoxemia, and tachycardia. The treating physician diagnosed hospital-acquired pneumonia and noted that the Veteran had suffered an acute stroke during his current hospitalization. The Veteran was moved to the intensive care unit and died on January [redacted], 2008. The summary of hospitalization notes that the Veteran experienced a probable two year physical decline leading up to his stroke and fall on January 8, 2008. The evidence of record establishes that the Veteran death was due to respiratory failure, pneumonia, renal failure, and cerebral infarctions. There is no medical evidence of a link between the Veteran's death and active duty service or evidence of cardiovascular disease in the year after discharge to allow for service connection on a direct or presumptive basis. See 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, the appellant only argues that a link exists between the Veteran's death and various service-connected disabilities; she has never alleged a relationship between the Veteran's active duty service and his death over 60 years later. Thus, the Board finds that the Veteran's cause of death was not directly related to active duty service. The Board must now determine whether the Veteran's service-connected disabilities contributed substantially or materially to his cause of death. In November 2012, the appellant submitted copies of several internet articles and scientific studies. The articles and studies described a possible relationship between PTSD and cardiovascular disease. Several studies also noted patients with PTSD were more likely to have diabetes mellitus. In order to establish service connection by means of such treatise (textbook or article) evidence it must "not simply provide speculative generic statements not relevant to the veteran's claim." See Wallin v. West, 11 Vet. App. 509 514 (1998). Instead, standing alone, the evidence must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Sacks v. West, 11 Vet. App. 314, 317 (1998). In this case, the Board finds that articles and studies submitted by the appellant do not have the requisite "degree of certainty" required by Wallin and Sacks, supra; see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) ("generic statement about the possibility of a link between chest trauma and restrictive lung disease . . . [is] too general and inconclusive ..."). The evidence lacks the degree of certainty to assign any substantial probative value to it in view of the speculative nature of the relationships described between PTSD and cardiovascular disease and diabetes. The studies only referenced a possible link between PTSD and cardiovascular disease (including hypertension) and only noted a higher incidence of diabetes among patients with PTSD. The evidence did not directly address the question currently before the Board: whether the Veteran's PTSD substantially contributed to his death by pneumonia, renal failure, and cerebral infarctions. Thus, the internet articles and medical studies contained in the record do not support the appellant's claim. The record also contains medical opinions weighing both for and against the appellant's claim. In support of her claim, she has submitted statements from the Veteran's primary care physician and treating physician at St. Luke's Northland Hospital. The first statement was dated in March 2008 and written by the Veteran's attending physician at the time of his death. The private doctor described the Veteran's history of CLL, hypertension, diabetes, and chronic kidney disease and found that he had experienced a series of stroke-like events. An MRI documented chronic ischemic changes and three acute/subactue events. The physician concluded that the Veteran's neurologic deterioration along with other comorbities led to his death. While this medical opinion was submitted by the appellant in support of her claim, the Board notes that the private doctor did not identify any service-connected conditions as causing the Veteran's death. The statement includes no discussion of the Veteran's service-connected PTSD or cold weather injuries and does not link either of these disorders to the Veteran's death. Thus, the March 2008 private medical opinion does not lend any support to the appellant's claim. A second medical opinion, dated in January 2009 and written by the Veteran's primary care doctor, noted that the Veteran's cold weather injuries more likely than not contributed to his cause of death. This medical opinion was not accompanied by any supportive rationale and is therefore of little probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In January 2010, the same doctor provided a second letter in support of the appellant's claim. The physician stated that he had known the Veteran for 30 years and it was clear the Veteran's service-related injuries and 100 percent disability were contributing factors to the ultimate diagnoses of renal failure, terminal pneumonia, and diabetes. The private doctor also noted that the Veteran's vascular disease (presumably a reference to the Veteran's service-connected cold weather injuries) was a direct cause of his stroke and renal failure. Additionally, the Veteran's PTSD had increased the risk and severity of diabetes and resulted in an inability to heal pneumonia. Without the Veteran's pre-existing issues, his pneumonia would not have been a terminal illness. Unlike the other private opinions submitted in support of the claim, the January 2010 medical opinion directly addresses the Veteran's service-connected disabilities and contains a supportive rationale. Weighing against the claim are two probative VA medical opinions. In February 2009, the claims file was provided to a VA examiner who found that the Veteran's service-connected cold weather injuries did not hasten or contribute to the Veteran's death by aggravating his other medical conditions. The VA examiner noted that the Veteran's cold weather injuries had caused Reynaud's phenomenon in the upper extremities, but in no way influenced the central causes of death, i.e. small strokes, renal failure, and diabetes. Although records of treatment from St. Luke's Northland Hospital were not included in the claims file at the time of the review, the VA examiner found that it did not affect his opinion regarding whether the service-connected cold weather injuries contributed to the Veteran's cause of death. A VA internist also provided an expert medical opinion against the claim in July 2013. After reviewing the complete claims file, including clinical records from St. Luke's Northland Hospital, the VA physician found that it was less likely as not that the Veteran's service-connected disabilities were an immediate or underlying cause of death. The VA doctor found that the Veteran's death was due to pneumonia and renal failure resulting from neurologic deterioration (ischemic cerebrovascular disease) and chronic kidney disease. The Veteran's service-connected PTSD and cold weather injuries did not aggravate the nonservice-connected diabetes or vascular disease; the VA examiner noted there was no evidence that cold weather injuries aggravate diabetes or worsen the arteriosclerotic process. The long-term effects of cold weather injuries are limited to pain, swelling, Raynaud phenomenon, nail abnormalities, and swelling. Similarly, while some studies have suggested a relationship between PTSD and diabetes and arterial vascular disease, no large population based studies have been preformed and PTSD alone is not a significant risk factor for the disorders. Psychosocial factors may contribute to the development of atherosclerosis and worsening diabetes, but the relationship is complicated and controversial. Finally, the VA expert found that it was less likely as not that PTSD or cold weather injuries rendered the Veteran unable to recover from pneumonia. The Veteran had three other major risk factor for mortality from pneumonia: his neurological condition, CLL, and chronic kidney disease. There are also no studies establishing that PTSD is a risk factor for mortality in hospital-acquired pneumonia. The July 2013 VA expert's medical opinion was rendered based on an accurate presentation of the Veteran's history and with full review of the Veteran's claims file. It is therefore entitled to substantial probative value. Nieves, supra. The Board finds that the weight of the medical evidence of record is clearly against the claim for service connection for the cause of the Veteran's death. Although the record contains a probative January 2010 medical opinion from the Veteran's primary care physician in favor of the claim, this opinion is outweighed by the medical opinion of the July 2013 VA expert. The January 2010 private doctor provided some supporting rationale for his opinion that the Veteran's service-connected PTSD and cold weather injuries contributed to the Veteran's death, but an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the Board finds the reasoning used by the July 2013 VA expert is more persuasive, as it includes multiple references to medical studies, accepted standards used by the medical community, and objective tests and findings contained in the Veteran's treatment records. In contrast, the reasoning used by the January 2010 private doctor is limited to a set of assumptions regarding the impact of the Veteran's service-connected disabilities on his cerebrovascular disease and pneumonia without reference to any objective evidence. The January 2010 private medical opinion is therefore outweighed by the medical evidence weighing against the claim, including the July 2013 VA expert. The Board has considered the statements of the appellant connecting the Veteran's death to his service-connected disabilities, but as a lay person, she is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Her opinion as to the cause of the Veteran's death simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Board is sympathetic to the appellant's claim, but the evidence does not establish that service connection is warranted for the cause of the Veteran's death. The evidence is against a finding that the Veteran's service-connected PTSD or cold weather injuries caused or otherwise contributed substantially or materially to his death in January 2008. The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the appellant in a February 2009 letter. While she has not received specific information regarding the disability rating and effective date elements of her claim, as the claim is being denied no disability rating or effective date will be assigned. Therefore, the appellant is not prejudiced by the delayed notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5103(a) requires that compliant VCAA notice, in the context of Death Indemnity Compensation (DIC) claims, requires (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 (2007). The February 2009 VCAA letter sent to the appellant did not fully comply with the requirements of Hupp. However, the appellant has not alleged any prejudice resulting from the lack of notice. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective; (2) what evidence the appellant would have provided or requested that VA obtain had VA fulfilled its notice obligations; and (3) how the lack of notice and evidence affected the essential fairness of the adjudication. Id; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). Moreover, the record contains evidence of actual knowledge on the part of the appellant with respect to the Hupp criteria. The appellant contends that the Veteran's death was caused by his service-connected PTSD and cold weather injuries. She has provided specific arguments regarding the effect of these service-connected disabilities on the Veteran's physical condition and has clearly demonstrated actual knowledge of the evidence and information required to substantiate a DIC claim. Thus, the lack of notice in the February 2009 VCAA notification letter has not resulted in any prejudice to the appellant's claim. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the appellant, including service treatment records, records of VA treatment, and private medical records. Additionally, the record contains two VA medical opinions (including a July 2013 VA expert opinion). The Board also finds that VA has complied with the October 2012 remand orders of the Board. In response to the Board's remand, records from St. Luke's Northland Hospital pertaining to the Veteran's hospital care and treatment prior to his death were obtained and added to the claims file. The case was then readjudicated in an April 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs