Citation Nr: 1334960 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-28 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from February 1935 to December 1945 and again from April 1946 to August 1955. He died in May 2006, and the appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a June 2009 decision, the Board denied the claim of entitlement to service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2009 Order, the Court granted VA General Counsel's unopposed Appellee's Motion for Remand (Appellee's Motion) and remanded the claim to the Board for compliance with the terms of the motion. In a November 2009 decision, the Board vacated the June 2009 Board decision, and denied the claim of entitlement to service connection for the cause of the Veteran's death. The appellant appealed this decision to the Court and, based on the parties' Joint Motion for Remand (Joint Motion), the Court remanded the claim. By a July 2011 decision, the Board vacated its November 2009 decision and remanded the case for additional development in compliance with the Joint Motion. In September 2012, the Board remanded the appellant's appeal to obtain another medical opinion. The claim most recently came before the Board in May 2013 where it was once again remanded to ensure the appellant received notice compliant with Hupp v. Nicholson, 21 Vet. App. 342 (2007). 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 May 2006 at the age of 92. The certificate of death reported the immediate cause of death as recurrent cholangitis. The underlying cause of death was listed as history of cholangitis. The contributing cause of death was listed as hypertension. 2. At the time of the Veteran's death, service connection was in effect for multiple joint arthritis to include both shoulders, both knees, lumbar spine, cervical spine and both hands, evaluated as 100 percent disabling, and hemorrhoidectomy, evaluated as noncompensably (zero percent) disabling. 3. The Veteran's death was not related to his active military service or to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Motion to Reschedule Hearing As noted in the Introduction above, this case has been remanded twice by the Court in September 2009 and March 2011. In September 2009, the Court remanded the claim of entitlement to service connection for the cause of the Veteran's death for readjudication consistent with the September 2009 Appellee's Motion. The Appellee's Motion stated that readjudication of the claim was required because the June 2009 Board decision failed to explain its finding that good cause had not been shown to reschedule the appellant's requested hearing. T he Appellee's Motion stated that "it appears that the sole question before the Board in this respect" was whether the appellant's claimed illness satisfied the "good cause" requirement. See 38 C.F.R. § 20.704 (2013). Hearings will be rescheduled only if requests for a change are received by VA more than two weeks prior to the hearing date and if good cause is shown. 38 C.F.R. § 20.704(c). If an appellant fails to appear for a hearing, a motion for a new hearing date following a failure to appear for the scheduled hearing must be in writing, must be filed within 15 days of the originally scheduled hearing date, and must explain why the appellant failed to appear for the hearing and why a timely request for a new hearing date could not have been submitted. Pursuant to 38 C.F.R. § 20.704(d) the determination as to whether good cause is shown is made by the Board. In this case, the appellant has been scheduled for three separate hearing dates over the course of a full year. The appellant has claimed that she has been unable to attend any of these dates due to medical problems which do not permit her to travel. In the appellant's August 2007 appeal to the Board she requested that she be provided with a hearing before the Board at the RO. However, she also stated that she was confined to a wheelchair due to a broken leg and could only go to a local VA office for a hearing. In a November 2007 statement, the appellant reported that she desired a hearing "near home" and was unable to travel due to a broken leg. In a December 2007 statement, the appellant reported that she could not travel to Roanoke due to therapy for a broken leg, and requested information on when a Board hearing would be available in her area. In a January 2008 letter, VA informed the appellant that she had been scheduled for a Board hearing at the RO in February 2008. In a January 2008 statement, the appellant requested information on when she would be scheduled for a hearing. In a second January 2008 statement, the appellant stated that she was unable to travel to Roanoke for the February 2008 hearing due to therapy for a broken leg. She requested that she be scheduled "to see a local official in the Hampton Roads area." Thereafter, in a May 2008 letter, VA informed the appellant that she had been re-scheduled for a Board hearing at the RO in July 2008. In July 2008, on the date of the hearing, VA received a letter from the appellant stating that she was unable to attend the hearing due to a bad fall one week before, in which she sprained her "good leg." She reported that she needed knee-cap surgery on her "good leg." In a July 2008 VA report of contact, the appellant reported that she had missed her scheduled hearing due to a broken leg and requested that she be rescheduled. In a January 2009 letter, VA informed the appellant that she had been re-scheduled for a Board hearing at the RO in February 2009. In February 2009, VA received a letter stating that the appellant could not travel to Roanoke due to being confined to a wheelchair and undergoing therapy for a broken leg, while she was also pending knee-cap surgery on the other leg. The appellant requested that her niece "stand in" for her at the hearing. She requested that she be rescheduled for a fourth hearing date. Most recently, however, the appellant indicated in an April 2013 letter that she "cannot travel to a Board meeting," but a representative "may" come to her house "if he can." She further indicated she had no additional evidence to provide. The evidence of record shows that the appellant has claimed a total inability to travel for the purposes of attending a hearing before the Board from August 2007 through April 2013. Since her 2009 last request for a fourth hearing, the appellant has made clear she would be unable to travel to any place, and that a representative would have to go to her "if he can." Within the same April 2013 statement, however, the appellant concedes she has no further evidence. The evidence shows that the appellant has asked multiple times for a hearing to be held near her home in Portsmouth, Virginia and, most recently, that a representative be sent to her if possible. Hearings are scheduled only at VA facilities which have adequate physical resources and personnel for the support of such hearings. 38 C.F.R. §§ 20.704(a), 20.705 (2013). There is no VA facility in the Portsmouth, Virginia area which meets these requirements. Her home, moreover, also does not meet these requirements. Id. The appellant has requested that her niece attend the hearing at the RO on her behalf. However, hearings are provided for the appellant to give testimony relevant to the issue on appeal in person. 38 C.F.R. § 20.700 (2013). It is therefore contemplated that the appellant will be present, and a hearing will not normally be scheduled solely for the purposes of receiving argument by a representative. Id. In this case, the appellant's representative is a private attorney as noted above. Requests for appearances by representatives alone to personally present arguments to the Board may be granted if good cause is shown. The determination as to whether good cause is shown is made by the Board. Id. In this case, however, the appellant did not request that her representative be afforded an opportunity to testify before the Board as to the issue on appeal. The claims file contains multiple statements from the appellant and her representative as to their contentions and arguments as to why the issue on appeal should be granted. Moreover, there are various other methods of submitting testimony to the Board, including oral arguments recorded on an audio and/or visual medium. The appellant has not attempted to explain in any manner why such methods are inadequate. The appellant has indicated that she wanted her niece to attend the hearing. However, the appellant has not claimed nor is there any indication of record that the appellant's niece has any knowledge regarding whether the Veteran's death was related to his military service. While VA has a duty to assist the appellant in the development of her claim, the appellant has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In the instant case, VA has made great efforts to accommodate the appellant's prior requests for a hearing. However, VA cannot continue to reschedule the hearing ad infinitum. VA has shown deference to the appellant's lay statements as proof her medical disability for earlier requests to reschedule hearings. In light of her April 2013 statement, moreover, it does not appear the appellant is currently seeking a hearing before the Board. For purposes of addressing the Appellee's Motion, however, the Board finds good cause has not been shown, and the appellant's motion to reschedule the hearing is denied. See 38 C.F.R. §20.704(c). Cause of the Veteran's Death Duties to Notify and Assist With respect to the appellant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or 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, 21 Vet. App. at 352-53. The duty to notify provisions were satisfied by letters sent to the appellant in July 2006 and May 2013. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The provisions set forth in Hupp were specifically addressed in the May 2013 letter pursuant to the Board's May 2013 remand. The claim was thereafter readjudicated in a June 2013 supplemental statement of the case. The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. VA medical opinions dated in February 2008, September 2011, and November 2012 (with a November 2012 addendum) were obtained in connection with the appellant's claim. The aggregate opinions and rationale provided are adequate because they are based on a thorough review of the claims folder, consideration of the appellant's contentions, and detailed rationale with appropriate review of medical literature. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473. Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In addition, 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). VA death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.5, 3.12 (2013). In order 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 C.F.R. § 3.312. 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. In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disorder casually shared in producing death, but rather it must be shown that there was a causal connection between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312(b), (c). The Veteran died in May 2006 at the age of 92. The certificate of death reported the immediate cause of death as recurrent cholangitis. The underlying cause of death was listed as history of cholangitis. The contributing cause of death was listed as hypertension. The appellant claims that the cause of the Veteran's death was related to his active military service. Specifically, she claims that the medication prescribed, to include steroids and non-steroidal anti-inflammatory drugs (NSAIDs), for the Veteran's arthritis contributed to his death. She believes these medications accelerated the Veteran's cholangitis, which ultimately led to his demise. At the time of the Veteran's death, service connection was in effect for multiple joint arthritis to include both shoulders, both knees, lumbar spine, cervical spine and both hands, evaluated as 100 percent disabling, and hemorrhoidectomy, evaluated as noncompensably disabling. The Veteran's service treatment records are negative for any diagnosis of cholangitis or hypertension and the evidence does not show that he had these conditions within one year of separation from service. The private and VA medical records of the years preceding the Veteran's death indicate the Veteran was treated for many years largely for nonservice-connected conditions, to include cholangitis, dementia, and hypertension. Indeed, the Veteran underwent surgery related to recurrent cholangitis as recent as April 2005, one year prior to his death. The appellant claims that she was present when the Veteran died at their home in May 2006 and he suffered with pain and a fever. The appellant claims the physician who signed the death certificate merely attributed his death to cholangitis and hypertension based on medical history only. An autopsy was not performed. A VA medical opinion was obtained in February 2008. Therein the examiner stated the Veteran's claims file had been reviewed, to include the appellant's contentions. After thorough review of the evidence, the examiner concluded as follows: [R]eview of current literature about rheumatoid arthritis does not indicate that this is a disease that causes death, however it can decrease life expectancy. Veteran was 92 years old at the time of death - (life expectancy for the average American male is 78 years of age). . . . The [V]eteran's death was not caused by or a result of his service connected multiple joint arthritis or the medications he was taking for his condition. The Board previously denied the appellant's claim in a November 2009 decision, in part, based on this opinion. In March 2011, the Court again granted the Joint Motion vacating this decision and remanding the claim to the Board. The March 2011 Joint Motion indicates the February 2008 opinion did not provide an adequate rationale for the conclusions reached. In accordance with the March 2011 Joint Motion, the Board previously remanded this claim to obtain a more thorough VA medical opinion. Additional opinions were received in September 2011 and November 2012 (with a November 2012 addendum). In September 2011, the VA examiner opined that the Veteran's death is "less likely as not" caused by or a result of arthritis or medications for arthritis. Therein, the examiner explained that labs done prior to the Veteran's death indicate chronic anemia without evidence of bleeding. Medications listed did not include steroids or NSAIDs. The last visit the Veteran had at the VA Medical Center (VAMC) was in December 2005, at which time the Veteran walked with one cane to the office and had no acute or debilitating problems. For these reasons, the September 2011 examiner found the Veteran's death was unrelated to the Veteran's multiple joint arthritis or medications taken for arthritis. The examiner further opined that the Veteran's arthritis and medications taken for arthritis did not cause the Veteran's death, did not contribute to the Veteran's death, did not aid or lend assistance to production of the Veteran's death, and did not cause "debilitating effects and general impairment of health to an extent that rendered the [V]eteran less capable of resisting the effects of the primary cause of his death at age 92 at home." Similarly, the November 2012 VA medical examiner found the Veteran's cause of death "less likely than not" incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran died at the age of 92 years old whereas he served in the military at the age of 30 to 40. Throughout the six years under VA care from 1999 to 2005 he was not prescribed any NSAID or steroid. His last visit, in 2005, indicated no acute problems. The examiner also noted the Veteran's history of pneumonia in 2005, as well as gall stone blocking pancreas/bowel perforation/cholangitis. The examiner found the Veteran's advanced age played a role in his inability to survive these various "stormy events." The November 2012 was asked to provide further detailed rationale for the opinion rendered, which was done in a November 2012 addendum. In the addendum report, the VA medical examiner offered a detailed rationale for each and every opinion rendered. Specifically, the examiner found the Veteran's service connected arthritis and medications taken for these conditions did not cause or contribute substantially or materially to his death because the Veteran was not prescribed NSAIDs or corticosteroid. Rather, the examiner noted the main treatment for the Veteran's arthritis was physical therapy. Physical therapy did not affect "or contributed substantially or materially to his death." The examiner further detailed the Veteran's medical history leading up to his death, to include medications prescribed, past surgical treatment for his cholangitis, and treatment for his arthritis. The examiner explained "acute cholangitis is caused primarily by bacterial infection, not medications." Therein, the examiner also restated there was "no evidence the Veteran was 'heavily medicated for his [service connected] condition' as stated at all so there is no evidence medication contributed to [the Veteran's] death." The examiner further explained the Veteran had lived well past the average lifespan of 78 for a man and, per the appellant's description, he died in pain with a fever. The examiner opined that this description is "most likely compatible to recurrent ascending cholangitis . . . ." The examiner found: Arthritis in and of itself does not aid or lend assistance to the production of cholangitis, which is an infectious process that caused his death, did not impair his health to an extent that rendered the Veteran materially less capable or resisting the effect of primary cause of death. Moreover, arthritis did not combine with any other of his known medical conditions including cholangitis and cause worsening of the condition. The examiner, within the November 2012 addendum opinion, also found that the Veteran's age of 92 was likely the more significant contributor to his death. Further, "his well documented dementia placed him at risk for multiple problems including aspiration, pneumonia, etc. that could well be the last event." The Board finds the VA medical opinions and addendum opinion of record persuasive. The aggregate of all these opinions indicate a thorough review of the claims folder and adequate research of relevant medical literature. The VA medical professionals expressly considered the appellant's theory and it was not endorsed. Also compelling, no medical professional has ever linked the Veteran's cause of death to his military service or a service-connected disability. There is no medical evidence that contradicts any of the medical examiners' opinions. In sum, the evidence of record does not show that the cause of the Veteran's death was related to his active military service or to a service-connected disability. The Veteran's service treatment records are negative for any diagnosis of cholangitis. There evidence shows that cholangitis and hypertension were diagnosed many years after separation from active duty. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Furthermore, there is no medical expert evidence that relates the Veteran's cholangitis or hypertension to military service or a service-connected disability, to include medications taken for service-connected disabilities. Indeed, there is considerable evidence to the contrary as outlined above. The Board has considered the appellant's lay opinion on the matter but it is not a competent opinion. In this case, the underlying questions regarding whether the Veteran's death is service connected are complex medical issues necessitating medical expertise to provide a probative opinion. As the appellant's opinion on the matter is not competent, it is not accorded any evidentiary weight. Given the foregoing evidence, service connection for the cause of the Veteran's death is not warranted. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for the cause of the Veteran's death, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs