Citation Nr: 1334589 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 12-31 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The deceased Veteran had active service from November 1942 to November 1945. The Veteran died in February 2010. The appellant is the Veteran's surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Since the issuance of this rating decision, the claims file has been transferred to the RO in North Little Rock, Arkansas, for further adjudication. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. 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. In February 2010, the Veteran died of a myocardial infarction. No other immediate causes or significant conditions contributing to death were listed on the death certificate. 2. At the time of his death, the Veteran was service connected for posttraumatic stress disorder (PTSD) with a 100 percent disability rating. 3. At the time of his death, the Veteran was not service connected for a cardiovascular disease, to include coronary artery disease, congestive heart failure, or myocardial infarction. 4. Symptoms of cardiovascular disease were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. 5. The Veteran's cause of death is not casually or etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A May 2010 VCAA letter, sent prior to the initial denial of the claim, informed the appellant about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the appellant was expected to provide. The letter also informed her of how disability ratings and effective dates are assigned. In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, when adjudicating a claim for 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. The Court concluded that, in general, 38 U.S.C.A. § 5103(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 disability; and (3) an explanation of the evidence and information required to substantiate a claim based on a condition not yet service connected. The May 2010 VCAA fully complied with the Hupp notice requirements. In the notice letter, the RO advised the appellant that service connection had been established for PTSD during the Veteran's lifetime. The RO also explained the evidence and information required to substantiate a DIC claim based on a previously service-connected disability, as well as the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Therefore, the duty to notify was fully satisfied by way of the May 2010 notice letter. VA also satisfied its duty to assist the appellant in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA treatment records, VA examination reports, a private medical report, the Veteran's death certificate, and the appellant's lay statements. In April 2012, the RO requested the Veteran's service treatment records for the period of service from November 1942 to November 1945. The response was that the service treatment records were fire related and unavailable. In June 2012, the RO requested any sick or morning reports for the Veteran with regard to any heart related issues. The response was that there were no references to health problems found in the morning reports. In July 2012, a Formal Finding on the Unavailability of Service Treatment Records for the period of service from November 1942 to November 1945 was made. The RO contacted the appellant in July 2012 and advised her that the appropriate facilities where the Veteran's service treatment records had been stored had been contacted but the Veteran's complete service treatment records were unable to be obtained. The RO also advised the appellant that a decision would be made on the claim without review of the complete service treatment records and that the ultimate responsibility for furnishing evidence needed to perfect the claim rests with the claimant. The RO then asked the appellant to provide any service treatment records she had or alternate sources of information in support of the claim within ten (10) days of the letter. The RO advised the appellant that her claim would be reconsidered in the future if the Veteran's service treatment records were later obtained. In August 2012, the appellant responded to the July 2012 letter and stated she did not have any copies of the Veteran's service treatment records to submit. She submitted a copy of a July 2003 rating decision that indicated VA was unable to locate the Veteran's service treatment records at that time as well. In light of the foregoing actions, the Board finds that further efforts to try to obtain the missing service records would be futile. Also, by way of the July 2012 letter, the duty to notify of VA's inability to obtain records, as outlined in 38 C.F.R. § 3.159(e), was satisfied. The July 2012 letter specifically advised the appellant that it was ultimately her responsibility to provide the missing service records; thus, she was aware of her responsibility to provide the missing records. Additionally, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue that has not been obtained. Thus, the Board concludes that VA had made every reasonable effort to obtain all records relevant to the appellant's appeal. Second, VA satisfied its duty to obtain a medical opinion when required. 38 U.S.C. § 5103A(a) provides that in all cases VA "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary," unless "no reasonable possibility exists that such assistance would aid in substantiating the claim." See Wood v. Peake, 520 F.3d 1345, 1349 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (holding that the duty to obtain a medical opinion in a DIC claim would come from the VA Secretary's general duty to assist as provided by 38 U.S.C. § 5103A(a), rather than 38 U.S.C.A. § 5103A(d)). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A VA review examination to determine what, if any, causal connection existed between the Veteran's cause of death and his service-connected PTSD was conducted in April 2011. The Board finds the VA review examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner fully reviewed the claims file, including the Veteran's history of PTSD and heart problems, and provided a rationale for the stated opinion that is consistent with the findings and the evidence of record. Additionally, neither the appellant nor the representative has questioned the adequacy of the review examination. The appellant was offered the opportunity to testify at a hearing before the Board, but declined. As VA satisfied its duties to notify and assist the appellant, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for the Cause of Death Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including cardiovascular diseases, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted for the cause of a veteran's death if a disorder incurred in or aggravated by service either caused or contributed substantially or materially to the cause of death. To establish service connection for the cause of a veteran's death, competent evidence must link the fatal disease to a period of military service or an already service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. §§ 3.303, 3.312; Ruiz v. Gober, 10 Vet. App. 352 (1997). In order to establish service connection for the cause of a 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. 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. Contributory cause of death is inherently one not related to the principal cause. In order to constitute the contributory cause of death it must be shown that the service-connected disability 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; Lathan v. Brown, 7 Vet. App. 359 (1995); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In this case, the Veteran separated from service in November 1945. He died in February 2010. The cause of death was listed as a myocardial infarction. No other immediate causes or significant conditions contributing to death were listed on the Veteran's death certificate. At the time of his death, the Veteran was service connected for PTSD and suffered from cardiovascular diseases, including coronary artery disease, congestive heart failure, and myocardial infarction, that were not service connected. After review of the evidence of record, the Board finds that the evidence weighs against finding that the Veteran's cardiovascular disorders had their onset during service, including any chronic symptoms of cardiovascular disorder during service, that he had continuous symptoms since service, that a cardiovascular disorder manifested to a compensable degree within a year of service separation, or that a cardiovascular disorder was otherwise causally or etiologically related to the period of active service. As noted above, the Veteran's service treatment records were destroyed in a fire and, thus, are unavailable for review. However, morning reports from the Veteran's service are negative for complaints, symptoms, findings, diagnosis, or treatment of any heart disorder; rather, the record reflects that the Veteran's cardiovascular diseases manifested many years after service separation. Thus, the available evidence contemporaneous to service does not show that a cardiovascular disease, or chronic symptoms related to the diagnosis, manifested during service. The post-service evidence shows that the Veteran's cardiovascular diseases did not manifest to a compensable degree within one year after service separation and the evidence does not reflect continuity of symptomatology after service. A July 2003 VA treatment record notes the Veteran underwent coronary artery bypass graft surgery in 1996, approximately 50 years after service separation. VA treatment records also reflect the Veteran was diagnosed with coronary artery disease and hypertension in February 2004, over 55 years after service separation. A November 2008 VA treatment record notes the Veteran was diagnosed with acute and chronic congestive heart failure, approximately 60 years after service separation. Additionally, the evidence of record does not show that the Veteran received treatment for or experienced symptoms of heart disease for many years following service. As such, the evidence does not reflect continuity of symptomatology or manifestation to a compensable degree within one year following service separation. The Board further finds that the weight of the evidence is against finding a relationship between cardiovascular disease and service. The appellant has not provided evidence linking the Veteran's cardiovascular diseases, which first manifested many years after service, to the Veteran's service and does not allege that any such evidence exists. Additionally, the appellant has not contended, nor does the record reflect, that the Veteran's cardiovascular diseases were incurred in service or were related to service, had their onset during service, had continuous symptoms since service, or manifested to a compensable degree within a year of service separation. Rather, in the December 2010 Notice of Disagreement, the appellant contends that the Veteran's heart problems were the result of the stress and depression from his service-connected PTSD. In her November 2012 Substantive Appeal, the appellant contends that the Veteran's PTSD had a severe, adverse effect on his heart and that his heart disease was a major contributor to his death. In sum, the evidence demonstrates no link between the Veteran's diagnosed cardiovascular diseases and the Veteran's active service. There is no basis upon which to presume that the Veteran's cardiovascular diseases were incurred in service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Next, the weight of the evidence demonstrates that the Veteran's death was not caused by the service-connected PTSD and that PTSD did not contribute substantially or materially to the cause of death. The Veteran has been service connected for PTSD since March 2003. A March 2003 VA treatment record notes that the Veteran reported increasing problems with nightmares and intrusive memories of World War II as well as decreased energy and interest for the past five years since his coronary artery bypass graft surgery. A July 2003 VA treatment record notes that the Veteran reported that he had been reexperiencing World War II since his coronary artery bypass graft surgery in 1996 and that he was no longer able to do many things he had once been able to do because of his heart condition. A February 2007 VA treatment record notes the Veteran was hospitalized due to pneumonia and possible congestive heart failure. A May 2007 VA treatment record notes the Veteran reported his biggest stressors were his medical problems and the difficulty of regulating his medications. A June 2007 VA treatment record notes that the Veteran reported that managing his blood level was stressful. A November 2009 VA treatment record notes the Veteran was seen for a follow up for pneumonia and congestive heart failure. The medical health professional stated that the Veteran did not look well that day and that the Veteran was being sent back to the local non-VA emergency room for further treatment. A January 2010 VA treatment record indicates that the Veteran was in the hospital for congestive heart failure exacerbation and pneumonia. The Veteran's February 2010 death certificate was certified by a physician and stated that the immediate cause of the Veteran's death was a myocardial infarction. The Veteran was not service connected for myocardial infarction and, as discussed above, the evidence in the current claim does not relate the myocardial infarction or heart diseases, including coronary artery disease and congestive heart failure, to service. The February 2010 death certificate did not list PTSD as the cause of death nor as a substantially or materially contributing factor to the Veteran's death. In a November 2010 letter from the Veteran's private physician, Dr. J.F stated that the Veteran had a history of PTSD and that his health seemed to diminish with his increasing PTSD symptoms. Dr. J.F. stated that the Veteran had become increasing depressed and reclusive through the last years of his life. Dr. J.F. stated the Veteran suffered from myocardial infarction and chronic congestive heart failure and became homebound with his depression. Dr. J.F. further stated that VA should consider how the Veteran's PTSD affected his productivity and life expectancy in determining the appellant's claim for VA benefits. In an April 2011 VA medical opinion from the review examination, the VA examiner reviewed the claims file and opined that she was unable to determine with a reasonable degree of certainty that there is a correlation between the Veteran's mental health symptoms and his myocardial infarction. The examiner indicated that, in general, there is a correlation between heart problems and depression and anxiety, but that there is no data, in general, to indicate that PTSD can cause anyone's myocardial infarction. The examiner noted that the Veteran's decreased functioning might have contributed to his lack of physical activity, exercise, and level of depression. The examiner stated that, after review of the claims file, there is no data to indicate that PTSD caused this specific Veteran's myocardial infarction. Based on these findings, the examiner concluded that she was unable to say with a reasonable degree of certainty that the Veteran's PTSD helped, contributed, or caused his myocardial infarction. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). The April 2011 VA medical opinion from the review examination is competent and probative medical evidence because it is based on a factually accurate history and assumptions. The VA examiner was informed of the relevant evidence of the case, reviewed the claims file, relied on accurate facts, and gave a fully articulated opinion that is supported by sound reasoning. Conversely, the Board finds the November 2010 private statement by Dr. J.F. to be of little probative weight. Dr. J.F. did not offer an opinion as to whether PTSD contributed to the Veteran's death. Rather Dr. J.F. stated that the Veteran's health seemed to diminish with his increasing PTSD symptoms. While Dr. J.F. stated the Veteran' had myocardial infarction, chronic congestive heart failure, and depression, he did not provide an opinion linking the Veteran's heart disease with his PTSD. Additionally, Dr. J.F. is not a psychiatrist or mental health professional; therefore, his opinion, or any inference of an opinion from his statements, of whether PTSD, a psychiatric condition, contributed to the Veteran's death has reduced probative value. Further, Dr. J.F.'s statement is vague in that he stated the Veteran's health "seemed" to diminish with his increasing PTSD. Specifically, the private physician did not provide an opinion and rationale as to whether PTSD contributed to the Veteran's death and did not discuss with specific aspects of the Veteran's health that were affected by PTSD. For example, in November 2009, three months before his death, the Veteran had diagnoses for sleep apnea, low back pain, PTSD, abnormality of gait, carotid artery disease, congestive heart failure, major depression, chronic kidney disease, GERD, coronary artery disease, hypertension, and hyperlipidemia. Read in its context, Dr. J.F.'s November 2012 statement is vague and unexplained, and only relates PTSD to general health, but does not relate the state of general health to any of the specific disorders listed by Dr. J.F., myocardial infarction, congestive heart failure, and depression, or the Veteran's death. Dr. J.F.'s statement does not constitute an opinion that PTSD contributed "substantially or materially" to the Veteran's cause of death. Because the November 2010 statement from Dr. J.F. is general and inconclusive in nature, it does not support the appellant's claim. Obert, 5 Vet. App. at 33; see also Beausoleil, 8 Vet. App. at 463; Libertine, 9 Vet. App. at 523. As such, the Board assigns little probative weight to Dr. J.F.'s medical opinion. As noted on March and July 2003 VA treatment records, the Veteran reported that his non-service connected heart problems and coronary artery bypass graft surgery were exacerbating his service connected PTSD symptoms, but not that his PTSD was affecting his heart problems. VA treatment records dated from February 2003 to the Veteran's death in February 2010 do not indicate any reports that the Veteran's service connected PTSD was contributing to his non-service connected cardiovascular diseases. The Veteran underwent VA PTSD examinations in connections with his claims for service connection and increased rating for PTSD in June 2003, June 2004, March 2005, May 2006, April 2007, and March 2009. The Veteran did not report and none of the examiners noted any connection between the Veteran's PTSD and his cardiovascular diseases. Also weighing against the appellant's claim is a January 2010 VA treatment record, dated one month prior to the Veteran's death, in which a VA doctor noted that the Veteran had been hospitalized for congestive heart failure exacerbation and pneumonia. Upon review of the evidence, the Board finds that VA treatment records and VA PTSD examination reports do not demonstrate that PTSD contributed to the Veteran's myocardial infarction. Regarding the appellant's statements as to the cause of the Veteran's death, the Board recognizes that lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). However, in this case, the causes of the Veteran's heart diseases involve complex medical etiological questions because they deal with internal and complex disease processes that are diagnosed primarily on clinical findings or comprehensive medical testing and only in minor part are diagnosed on symptomatology observable to a lay person. The appellant is competent to relate symptoms that she observed the Veteran experience at any time, but is not competent to opine on whether there is a link between the Veteran's heart diseases and the service-connected PTSD because such opinion requires specific medical knowledge and training, including psycho-physiological interaction. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). The Board acknowledges that the Veteran was experiencing symptoms associated with PTSD up until his death in February 2010; however, the competent and probative evidence of record does not demonstrate that the Veteran's PTSD caused or contributed substantially or materially to the cause of death. For the above reasons, the Board finds the opinion in the February 2010 death certificate opinion as to the cause of death, VA treatment records showing the cause of the Veteran's death, and April 2011 VA examination report to be highly probative. In weighing the evidence of record, the Board finds that the preponderance of the evidence weighs against service connection for the cause of the Veteran's death, and the claim must be denied. 38 C.F.R. §§ 3.303, 3.310, 3.312. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER DIC based on service connection for the cause of the Veteran's death is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs