Citation Nr: 1335581 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-28 473 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for cause of the Veteran's death. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1942 to January 1946. He died in March 2010; the appellant is the Veteran's widow. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the RO. In January 2013, the Board remanded the case for additional development of the record. Subsequently, in May 2013, the Board requested a VHA medical opinion in connection with the appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the time of his death, the Veteran had been granted service connection for traumatic arthritis of the left knee (rated at 30 percent disabling), a recurrent epigastric ventral hernia (rated at 20 percent disabling), a residual scar from a right inguinal hernia repair (rated at 10 percent disabling) and a residual scar of epigastric hernia repair (rated at 10 percent disabling). 2. The Veteran died in March 2010; the immediate cause of his death was pneumonia due to multi-organ failure and dementia caused by a gastrointestinal bleeding, pneumotosis intestinalis, possible bowel perforation and portovenous gas that were noted to be due to vasculature insufficiency. 3. The Veteran is not shown to have manifested complaints or findings of a hiatal hernia or other gastrointestinal disorder or vascular disease during his period of active service in World War II or for many years thereafter. 4. The fatal pneumonia with multi-organ failure and dementia due to a gastrointestinal bleeding, pneumotosis intestinalis, possible bowel perforation and portovenous gas was caused by a vascular condition that was not due to an event or incident of the Veteran's period of active service or otherwise caused or aggravated by a service-connected disability. 5. A service-connected disability is not shown to have caused or contributed materially in producing or accelerating the Veteran's demise. CONCLUSIONS OF LAW 1. The Veteran's fatal disability manifested by pneumonia, multi-organ failure and dementia caused by a gastrointestinal bleeding, pneumotosis intestinalis, possible bowel perforation and portovenous gas was due to vascular disease that was not incurred in or aggravated by active service; nor may any be presumed to have been incurred therein; nor is any proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A service-connected disability did not cause or contribute substantially or materially in producing the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development 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) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defect in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In addition, in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice 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 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, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. App. 277 (Fed. Cir. May 19, 2009) (unpublished). The RO notified the appellant of the evidence needed to substantiate her claim for service connection for the cause of the Veteran's death in November 2010 and February 2013 letters. Specifically as regards to the Hupp requirements, the Board points out that although the appellant was notified of the conditions for which the Veteran was service connected during his lifetime, she was not provided notice that the Veteran was not service-connected for hiatal hernia during his lifetime. However, the appellant's written statements clearly indicate an awareness of the Veteran's service-connected disabilities, the fact that the Veteran was not service-connected for hiatal hernia, and the evidence required to establish service connection for hiatal hernia, to include as secondary to a service-connected disability. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Consequently, any error pertaining to lack of requisite Hupp notice in this regard was cured by actual knowledge on the part of the claimant. Id. The Veteran's status as a veteran has been substantiated for purposes of a claim for service connection for the cause of a Veteran's death. While the RO did not furnished to the appellant a letter meeting the Dingess/Hartman requirements as to disability rating and effective date in the November 2010 letter, such notice was provided in the February 2013 letter. The claim was readjudicated in a March 2013 supplemental statement of the case (SSOC). Thus, any timing deficiency was cured. The record also reflects that 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 and private treatment records, an April 2011 VA medical opinion and the June 2013 medical opinion received by the VA medical expert in response to the VHA medical opinion request. Further, the Board is aware that the issue was remanded by the Board in January 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). In pertinent part, that remand requested that the RO provide the appellant with notice of the Dingess/Hartman requirements as to disability rating and effective date and obtain outstanding records of treatment of the Veteran at VA prior to his death. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The appellant was an active participant in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C.A. § 1310; Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. To be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to 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 it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312. In determining whether the disability that resulted in the death of a veteran was the result of active service, the law and regulations pertaining to basic service connection apply. 38 U.S.C.A. § 1310. In this case, the Veteran's death certificate reflects that the immediate cause of his death was pneumonia and that the underlying causes were multi-organ failure and dementia. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Analysis As noted on the certificate of death, the Veteran died on March [redacted], 2010. The listed immediate cause of death was pneumonia. Multi-organ failure and dementia were the reported as underlying causes of death. At the time of his death, the Veteran was service-connected for traumatic arthritis of the left knee (30 percent disabling); a recurrent epigastric ventral hernia (20 percent disabling); a residual scar from a right inguinal hernia repair (10 percent disabling); and a residual scar of epigastric hernia repair (10 percent disabling). The appellant asserts that, prior to his death, the Veteran developed a hiatal hernia as the result of the service-connected ventral and inguinal hernias that caused a gastrointestinal bleed and extensive pneumatosis of the stomach and small bowel and, in turn, led to his death. A March 2010 VA death summary report noted pneumonia as the principal diagnosis/cause of death. Secondary diagnoses included hypertension, hypothyroidism, osteoarthritis and hiatal hernia repair. In an April 2011 VA medical opinion, a reviewing physician noted that the Veteran died from pneumonia. In the week preceding his death, he had been admitted for a GI bleed and stomach/small bowel pneumatosis that was due to stomach and small bowel ischemia causing an infarction of the stomach and small bowel, and possibly perforation. Ischemia of the stomach and small bowel was due to vascular disease, which, in the Veteran's case, was caused by his very extensive history of smoking and hypertension. The physician explained that, despite the appellant's contentions (i.e., the ventral and inguinal hernia residuals caused strangulation of the bowel), there was no evidence of bowel strangulation. Thus, the physician concluded that the Veteran's ventral hernia and right inguinal hernia residuals had no relationship to the bowel ischemia that caused his death. Subsequently, in May 2013, the Board requested an opinion from a VHA medical specialist as to whether (a) it was at least as likely as not that the Veteran had a hiatal hernia that was caused or aggravated by the service-connected ventral and inguinal hernias; (b) it was at least as likely as not that any hiatal hernia that the Veteran developed as a result of his service-connected ventral and inguinal hernias caused or materially contributed in producing his demise; or (c) it was at least as likely as not that the Veteran's service-connected disabilities caused or materially contributed in producing death. In the VHA medical reviewer's response, dated in June 2013, a chief of general surgery noted that the Veteran had a hiatal hernia; however, he found that there was no evidence that the hiatal hernia was caused by or aggravated by the ventral and inguinal hernias. The expert explained that the hiatal hernia was a defect in the diaphragm where the stomach or other intra-abdominal organs could protrude into the chest; whereas, inguinal and ventral hernias occur in a different location, the anterior abdominal wall, and have no effect on hiatal hernias. Further, the expert found that the Veteran's hiatal hernia did not contribute to his death. Rather, pneumonia and multi-organ failure contributed to the Veteran's death. He noted that the Veteran had developed gastrointestinal bleeding, pneumotosis intestinalis, possible bowel perforation and portovenous gas, some of which was seen on a CT scan dated on February 7, 2010. However, the expert found that they were all indicators that the stomach and small bowel suffered injury due to vascular insufficiency/disease such as atherosclerosis from the Veteran's smoking and hypertension history. Finally, the expert opined that it was not likely that the Veteran's service-connected disabilities (arthritis of the left knee, ventral hernia, inguinal hernia scars, and epigastric hernia scars) played any role in his death. The expert explained that there was no evidence on CT imaging or physical examination that the Veteran was having any acute process related thereto. Given its review of the record, the Board finds that the claim of service connection for the cause of the Veteran's death must be denied. Responding to a request for a VA medical expert opinion, in June 2013, a chief of general surgery concluded that (a) there was no evidence that the Veteran's hiatal hernia was caused by or aggravated by his ventral and inguinal hernias, (b) the Veteran's hiatal hernia did not contribute to his death; and (c) it was not likely that the Veteran's service-connected disabilities played any role in his death. In this regard, the expert explained that inguinal and ventral hernias occurred in a different location and had no effect on hiatal hernias. Further the expert noted that the Veteran had developed gastrointestinal bleeding, pneumotosis intestinalis, possible bowel perforation and portovenous gas as indicators that the stomach and small bowel had suffered an injury due to vascular insufficiency/disease such as atherosclerosis from the Veteran's smoking and hypertension history. Finally, the expert pointed out that there was no evidence on CT imaging or physical examination that the Veteran was having any acute process related to his service-connected disabilities. The Board notes that this opinion was based on a review of the Veteran's records, including the Veteran's history, and sound medical principles. Additionally, the April 2011 VA physician opinion confirms, in part, the opinion of the medical expert in June 2013 (the Veteran's ventral hernia and right inguinal hernia residuals have no relationship to the cause of the Veteran's death). Thus, on this record, the Board concludes that a service-connected disability did not cause or contribute substantially or materially in producing the Veteran's death. The Board is aware that a March 2010 death summary report documents pneumonia as the principal diagnosis/cause of death with hypertension, hypothyroidism, osteoarthritis and hiatal hernia repair documented as secondary diagnoses. However, no rationale is provided in connection with this document. The only evidence of record supporting the appellant's claim are her general lay assertions. In this case, the Board finds that the appellant is competent to describe the Veteran's observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including the lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is sympathetic to the appellant's claim, but there is no basis for relating the Veteran's hiatal hernia to an event or incident of service or finding that it was caused or aggravated by a service-connected disability. Therefore, service connection cannot be awarded for hiatal hernia on a direct or secondary basis. The Board has also considered the appellant's assertions, but finds they are of limited probative value for the purpose of medically linking the actual cause of the Veteran's death to service or a service-connected disability. The Board points out that the Veteran's hiatal hernia was diagnosed many years after service and there is no proof of actual direct or secondary causation. Moreover, the Board finds that the opinion of the chief of general surgery in the June 2013 report to be most probative for the purpose of deciding this appeal. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The VA chief of general surgery is a medical professional who reviewed the claims file, considered the reported history and contentions of the appellant and used his medical expertise in reviewing the facts of this case in determining that the cause of the Veteran's death was not related to a service-connected disability or a disability for which service connection should have been awarded. Significantly, there is no medical evidence linking the identified vascular insufficiency or any of the other cause of the Veteran's death to events or incidents of this period of active service. Accordingly, on this record, service connection for the cause of the Veteran's death must be denied. In reaching this conclusion, the Board finds that the benefit-of-the-doubt doctrine does not apply. As the preponderance of the evidence is against the claim, the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990). ORDER Service connection for cause of the Veteran's death is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs-