Citation Nr: 1335974 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-26 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from August 1950 to April 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in April 2010, the matters of entitlement to service connection for a psychiatric disorder, osteoarthritis, and a total rating for compensation purposes based on individual unemployability, for purposes of accrued benefits, were remanded for initial adjudication by the RO. These matters were adjudicated in a July 2013 rating decision by the RO. As of yet, there has been no receipt of expression of disagreement with the rating decision. Consequently, those matters are not before the Board and are not addressed herein. 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. The Veteran died in March 2004; the immediate cause of his death was dissecting ascending arch aortic aneurysm; coronary artery disease, diabetes mellitus, peripheral vascular disease, hyperlipidemia, and hypertension were identified as other significant conditions contributing to death but not resulting in the underlying cause. 2. At the time of the Veteran's death, he had established service connection for subtotal gastrectomy, rated 40 percent. 3. The Veteran's dissecting ascending arch aortic aneurysm, which caused his death, was not manifested during his active service or within one year thereafter, and the preponderance of the evidence is against a finding that such disability is related to his service or to any event therein. 4. The Veteran's coronary artery disease, diabetes mellitus, peripheral vascular disease, hyperlipidemia, and hypertension, which are listed as contributory causes of his death, were not manifested in service or in the first year following his separation from service, and are not shown to have been related to his service. 5. A service-connected disability did not cause or contribute to cause 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. §§ 1101, 1110, 1112, 1113, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also 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 claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed.Cir. 2007). "Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir. 2009). In this case, the appellant was provided letters by the RO in September 2004 and May 2005 prior to the initial RO decision. However, these letters did not include the notification for the information and evidence needed to substantiate a claim for DIC based on a previously service-connected disability, and the letters did not provide notice of the Veteran's service-connected disability at the time of his death. However, it is clear that the appellant and her attorney were aware of what was needed to warrant service connection for a previously service-connected disability and of what the Veteran's service-connected disability was at the time of his death. In her May 2004 claim for DIC benefits, the appellant (via her attorney) noted the Veteran had a claim pending at his death for an increased rating for a gastrointestinal disorder (such issue was ultimately adjudicated by the Board in April 2010). Moreover, in the December 2005 notice of disagreement, and in September 2007 correspondence, the appellant's attorney stated that VA failed to consider whether the residuals of the Veteran's service-connected disability significantly contributed to his death. The Board finds that these statements reflect that the appellant and her attorney have actual knowledge of the type of information and evidence needed to substantiate a claim for DIC benefits, and of what the Veteran's service-connected disability was at the time of his death. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the RO also readjudicated the case by way of a June 2013 supplemental statement of the case, provided after the evidence reflects that the appellant and her attorney had actual knowledge of the type of information and evidence needed to substantiate a claim for DIC benefits, and of what the Veteran's service-connected disability was at the time of his death. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. VA also has a duty to assist in the development of the claim. The Veteran's service treatment records are associated with his claims file, and pertinent postservice treatment records and lay statements have been secured. In March 2012, the RO secured a medical advisory opinion (pursuant to the Board's April 2010 remand instructions). As will be discussed in greater detail below, the Board finds this opinion is adequate for rating purposes as it reflects familiarity with the entire record, and includes a detailed explanation of rationale. The appellant has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). It is not sufficient to show that a service-connected disability casually shared in producing death; rather, it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases (including diabetes mellitus and cardiovascular-renal disease), service connection may be established on a presumptive basis if they are manifested to a compensable degree in a specified period of time postservice (one year for diabetes and cardiovascular-renal disease). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran died in March 2004; the immediate cause of his death was dissecting ascending arch aortic aneurysm. Coronary artery disease, diabetes mellitus, peripheral vascular disease, hyperlipidemia, and hypertension were identified as other significant conditions contributing to death but not resulting in the underlying cause. The Veteran's service treatment records are silent for complaints, findings, treatment or diagnoses relating to coronary artery disease, diabetes mellitus, peripheral vascular disease, hyperlipidemia, or hypertension. Consequently, service connection for any disease/condition on the basis that it became manifest in service and persisted is not warranted. Inasmuch as there is no evidence that the Veteran's coronary artery disease, diabetes mellitus, peripheral vascular disease, hyperlipidemia, or hypertension were manifested in the first year following his discharge from active duty, service connection for such diseases under the chronic disease presumptive provisions of 38 U.S.C.A. § 1112, 38 C.F.R. §§ 3.307, 3.309, likewise is not warranted. There is also no evidence in the record that relates any of these diseases/conditions to the Veteran's service. The death certificate only lists these diseases/conditions as death-causing disabilities, and the appellant has not submitted any competent (medical) evidence showing or suggesting that there is a relationship between the death-causing disabilities and the Veteran's service. The appellant alleges that the Veteran's death-causing dissecting ascending arch aortic aneurysm is related to his service-connected disability. Specifically, she claims that due to Veteran's service-connected subtotal gastrectomy, he had a particular diet, and such contributed to cause his atherosclerotic heart disease which caused his death. The evidence of record shows that the Veteran was originally granted service connection for a duodenal ulcer in December 1952. (His only service connected disability.) In February 1964, he underwent a 60 percent subtotal gastrectomy and bilateral vagotomy because of his chronic duodenal ulcer. On January 1965 VA gastrointestinal examination, it was noted the Veteran eats six small meals per day. A February 1971 private treatment record noted the Veteran's complaint of a dull ache in his stomach and getting pain that goes up into his chest. The record provides a notation of hypertension, although it does not appear a definitive diagnosis was provided. A December 1984 Dr. M.D. Jacobs note related that the Veteran's subtotal gastrectomy requires him to eat several small meals several times daily. In a May 2001 Dr. A.J. Schmidt letter, the Veteran's various medications were listed, which included medications for chronic gastroesophageal reflux, diabetes mellitus type 2, osteoarthritis, and benign prostatic hypertrophy. In a March 2003 Dr. A.J. Schmidt letter, it was noted the Veteran had significant degenerative lumbar spine disease, as well as diabetes mellitus type 2, bilateral hip replacement in 1994, and benign prostatic hypertrophy. In February 2004, the Veteran underwent coronary artery bypass grafting times 3. In March 2004, the Veteran was at home recuperating from his bypass surgery when he was presented to the emergency room with right upper shoulder pain that radiates down towards the lower abdominal region, on the back, as well as radiation from the abdominal region to the right flank and down both legs. It was noted he had a history of borderline hypertension. After having seizure activity and becoming unresponsive, as well as various other attempts to restore circulatory competency, the Veteran began expressing evidence of disseminated intravascular coagulation, and the doctors were unable to restore circulatory competency and unable to obtain a myocardial response despite a pacemaker. He ultimately was pronounced dead after a few hours with no remaining options to attempt to restore circulatory competency. The final autopsy report related that the Veteran had cardiovascular system diagnoses of dissecting thoracic aortic aneurysm, status post coronary artery bypass graft times 3, marked atherosclerosis, left ventricular hypertrophy, and cardiomegaly. In an October 2004 letter by Dr. R.L. Clay, it was noted that the Veteran suffered an ascending aortic dissection and expired in March 2004. It was stated that the Veteran clearly died of complications from atherosclerotic cardiovascular disease and that since his gastrectomy in the 1950s, due to significant dumping syndrome problems, he had only been able to eat meals that were rich in carbohydrates. It was opined that "this diet that he maintained contributed significantly to his atherosclerotic disease, that resulted in his death." In November 2004, the appellant submitted treatise evidence regarding carbohydrates and diabetes, indicating that with carbohydrates, blood sugar levels go up the fastest, and that diabetics must keep track of the number of carbohydrate choices made to control their blood sugar. The appellant also submitted treatise evidence regarding a dumping syndrome diet. The evidence noted that dumping syndrome is caused by large amounts of food passing quickly into the small intestine, and that it causes symptoms like abdominal pain, nausea, diarrhea, dizziness, weakness, and fatigue. The evidence also included a sample diet to help stop symptoms of dumping syndrome. In an August 2005 VA medical opinion regarding whether the Veteran's diet was a causative factor in his death, it was indicated that in the management of dumping syndrome, daily energy intake is divided into six meals, and because carbohydrate intake is restricted, protein and fat intake should be increased to fulfill energy needs (emphasis added). In a March 2012 VA opinion, it was noted that the Veteran died as a result of an acute dissection of his ascending aorta, confirmed by autopsy. It was also noted that the left ventricular hypertrophy on autopsy was a sign of longstanding hypertension. The examiner related that atherosclerosis is a disease of the wall of arteries, including those of the aorta and the coronary arteries which can result in blockages of those arteries, as occurs in coronary artery disease, which the Veteran had, and required coronary artery bypass surgery. Atherosclerosis can also result in abnormalities of the wall of the aorta which make it susceptible to dissection. The examiner concluded based on this medical explanation of atherosclerosis that the aortic dissection is not due to the coronary artery disease, but is a different manifestation of the atherosclerosis. The examiner also noted that hyperlipidemia, hypertension, being male, advancing age, and diabetes mellitus are all factors that contribute to the development of atherosclerosis over time. While a person's diet can influence their lipid profile (as the appellant is alleging), a high carbohydrate diet would not be anticipated to adversely affect a lipid profile. In addition, if dietary habits imposed by the Veteran's stomach problems did adversely affect his lipids, good, safe drugs have been available for many years to effectively treat such hyperlipidemia and eliminate such potential adverse risk factor. In conclusion, the examiner opined that "the Veteran had numerous risk factors which contributed to his atherosclerotic heart disease and atherosclerosis of the aorta and that it is less likely than not related to a high carbohydrate intake made necessary by reason of his subtotal gastrectomy and dumping syndrome." It was also opined that the Veteran's atherosclerotic heart disease was less likely than not the principal or contributory cause of his fatal dissecting aortic aneurysm. Initially, the Board finds that Dr. R.L. Clay's favorable October 2004 opinion cannot be afforded significant probative value to grant the benefit sought. As noted in the Board's April 2010 remand, the opinion offers no analysis as to the Veteran's other risk factors for developing atherosclerotic heart disease. Moreover, the opinion concluded that the diet that he maintained (presumably a high carbohydrate diet) contributed significantly to his atherosclerotic disease, that resulted in his death, without rationale or reasoning to support the conclusion. The Board finds the appellant's own statements to the effect that the Veteran's gastrointestinal disorder and restricted diet resulted in or contributed to cause his atherosclerotic heart disease and his death to be outweighed by the more probative opinion of the March 2012 VA examiner because the opinion was provided by a medical expert, an area of expertise the appellant is not shown to possess. Whether the Veteran's atherosclerotic heart disease and his death are related to his service-connected gastrointestinal disorder and restricted diet is a complex medical question beyond resolution by lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus, particularly where complex medical questions or the interpretation of objective medical tests are involved); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). While treatise evidence that discusses carbohydrates, diabetes, and dumping syndrome diets may be used to meet the requirement for a medical nexus between service and current disability, generic information in a medical journal or treatise is too general and inclusive to serve the purposes in a claim for service connection. The Board concludes that the March 2012 VA medical advisory opinion merits the greatest probative weight. The opinion reflects familiarity with the Veteran's medical history and is accompanied by rationale that is supported by citation to clinical data and the explanation of the significance of the clinical data. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Notably, the VA examiner observed that the Veteran had numerous risk factors that contribute to the development of atherosclerosis over time. In addition, even if the Veteran was on a high carbohydrate diet due to his service-connected subtotal gastrectomy, such would not be anticipated to adversely affect a lipid profile, and even if it did adversely affect his lipid profile, there are safe drugs to eliminate such potential adverse risk factor. Considering the entirety of the evidence, the VA examiner opined it was less likely than not the Veteran's atherosclerotic heart disease and atherosclerosis of the aorta was related to a high carbohydrate intake due to his service-connected subtotal gastrectomy. In light of the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim. In such a situation, the benefit of the doubt doctrine does not apply, and the claim must be denied. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs