Citation Nr: 1336895	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO. 06-38 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for the cause of the Veteran's death. 


REPRESENTATION

Appellant represented by:	Osborne E. Powell, Jr., Attorney


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel




INTRODUCTION

The Veteran served on active duty from April 1968 to December 1969. He died in 2005. The appellant is his surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied service connection for the cause of the Veteran's death. 


FINDING OF FACT

The evidence is evenly balanced as to whether the Veteran's service-connected posttraumatic stress disorder (PTSD) was a contributory cause of death. 


CONCLUSION OF LAW

The criteria for the establishment of service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.312 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant contends that the Veteran's PTSD caused or contributed to death from a severe pulmonary disorder. There is no question that the Veteran had severe PTSD. Because the competent evidence indicating aggravation, and non-aggravation of the pulmonary disorder by PTSD is in approximate balance, the benefit of the doubt will be granted to the appellant and the Board will grant the claim. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service incurrence will be presumed for certain chronic diseases, including malignant tumors, if manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

Service connection for the cause of a veteran's death requires evidence that a service connected disability was a principal or contributory cause of death. 38 U.S.C.A. 
§ 1310; 38 C.F.R. § 3.312(a). 

A service connected disability will be considered the principal cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). Contributory cause of death is inherently one not related to the principal cause. In determining whether the service connected disability contributed to death, it must be shown that it 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(c)(1).

Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4).

The Veteran's death certificate indicates that the immediate cause of death was cardiovascular arrest due to hypoxia, hypercapnia. The certifying physician, Dr. G.M., reported that the cardiovascular arrest due to hypoxia, hypercapnia was due to or a consequence of metastatic melanoma with multiple lesions in the central nervous system, due to or as a consequence of pneumonia with respiratory compromise, due to or as a consequence of chronic obstructive airway disease with chronic tobacco use, due to or as a consequence of PTSD. Other significant conditions contributing to death but not resulting in the underlying cause were listed as right middle and right lower lobe pneumonia, gastric reflux, and tibial fractures. Dr. G.M. indicated by marked box that tobacco use probably contributed to the Veteran's death. No autopsy was performed. 

Post-service VA treatment records reflect diagnoses of and treatment for PTSD and document the Veteran's history of smoking. 

The Veteran's terminal discharge summary, completed by Dr. G.M., reflects diagnoses of metastatic melanoma to the central nervous system; right lower lobe hospital acquired pneumonia/mucus plugs; altered mental status, multiple small enhancing lesions on head CT; depression/anxiety; gastroesophageal reflux disease (GERD); and PTSD. 

In November 2006, a VA psychologist reviewed the Veteran's death certificate and his treatment records from one year prior to his death. She observed that post-traumatic stress disorder can contribute to cardiovascular problems and to physical health problems because of the stress that the individual is undergoing and certainly it can put the individual at risk for developing medical problems." She added that PTSD would increase the likelihood that someone could die from a heart attack or heart condition, but that she could not opine that the Veteran's PTSD "acutely contributed" to his cause of death. She continued, "but certainly overall it would at least as likely as not contribute to his declining health in terms of his cardiovascular problems." 

Consistent with the VA psychologist's recommendation for further study, a VA physician reviewed the claims file later in November 2006. The physician opined that it was less likely than likely that the Veteran's PTSD contributed to his death. In explaining his opinion, the VA physician stated that there was no evidence to suggest that the Veteran's PTSD led to the development of his metastatic melanoma. The physician commented that this melanoma was widely spread to the Veteran's central nervous system which led to his cardiovascular collapse and resultant death. He added that there was also no evidence to suggest that he had underlying cardiovascular disease prior.  

In support of the appellant's assertion that the Veteran's cardiac arrest was linked to his PTSD, the appellant's former representative included in his September 2010 Informal Hearing Presentation (IHP) a list of several medical references linking heart conditions to stress. 

In November 2010, the VA psychologist who provided the November 2006 opinion provided a second opinion. She acknowledged review of the November 2006 physician's opinion as well as the information about the Veteran's treatment for PTSD in the claims file. The psychologist stated, "given that the cardiovascular problems were the result of another medical condition at the time of the veteran's death, it seems less likely than not that the PTSD was a contributing factor to this veteran's death from the metastatic melanoma." 

In May 2011, another VA physician reviewed the claims file and stated that the Veteran had metastatic melanoma with metastasis to the brain, including the brainstem, and was noted to have respiratory failure, most likely due to brainstem metastasis of his melanoma. The VA physician opined that his cause of death was due to his metastatic melanoma and not his service-connected PTSD. 

In July 2011, a private psychiatrist, Dr. P.M., reviewed the claims file and opined that it was as likely as not that the Veteran's PTSD contributed substantially to his death. Dr. P.M. stated that PTSD and depression are conditions of chronic stress, which weakens the endocrine system and the immune system and puts excessive pressure on the heart/cardiovascular system. Dr. P.M. added that chronic stress is a well-known contributor to cancers of all types as well as respiratory disease and chronic infections. He noted that autoimmune disease or a disruption in immune surveillance and control of inflammation is a fundamental cause of all disease because the endocrine system and the immune system act throughout all of the bodily tissues, affecting every organ function. Dr. P.M. noted that PTSD interferes with both systems. He provided articles referencing increased states of disease from PTSD and demonstrating high correlations with comorbid disease states of the nature of the Veteran's. 

These articles mention that studies have linked PTSD to cardiovascular disease and other diseases; that study findings suggest that chronic PTSD sufferers might be at risk for autoimmune disease; that exposure to catastrophic stress is associated with adverse health reports; that PTSD is distinctive among psychiatric disorders in terms of its potential to promote poor health because of associated physiological and psychological abnormalities; that evidence suggests that severe psychological distress caused by PTSD may be related to altered neuroendocrine and immune system functions that could lead to disease; and discuss the relationship between PTSD and smoking, with one article noting that several studies have reported an association between PTSD symptoms and smoking, particularly heavy smoking and nicotine dependence. One article noted that PTSD could cause greater health problems. This article cites smoking as a relevant factor in PTSD, but then states that this would be unlikely, given that PTSD is associated with poor physical health even when behavioral factors such as smoking are controlled. 

Dr. P.M. responded affirmatively to the question, "Is it as likely as not that [the Veteran's] mental health condition [PTSD] combined with his cardiovascular arrest due to hypoxia and hypercapnia, metastatic melanoma with multiple lesions in the central nervous system, pneumonia with respiratory compromise and chronic obstructive airway disease with chronic tobacco abuse, to cause his death?" He again responded positively to the question, "Is it as likely as not that [the Veteran's] mental health conditions [PTSD] aided in or lent assistance to cause his death?" In the area provided to explain each of these responses, Dr. P.M. referred to his earlier provided explanation. 

Dr. P.M. responded positively to the question, "Is it as likely as not that [the Veteran's] mental health conditions [PTSD] rendered him materially less capable of resisting the effects of cardiovascular arrest due to hypoxia and hypercapnia, metastatic melanoma with multiple lesions in the central nervous system, pneumonia with respiratory compromise and chronic obstructive airway disease with chronic tobacco abuse?" He again referred to his original explanation regarding PTSD as a contributory cause of death and directed the reader to four particular articles he had provided, which address the relationship between PTSD and smoking, discuss COPD (noting that 80 to 90 percent of COPD cases are caused by smoking and a smoker is 10 times more likely than a nonsmoker to die of COPD), and discuss the survival rates for melanoma skin cancer by stage. 

Finally, Dr. P.M. responded positively to the question, "Is it as likely as not that [the Veteran's] mental health conditions [PTSD] were so severe and debilitating that they could have had a material influence in accelerating his death despite his impending death from the cardiovascular arrest due to hypoxia and hypercapnia, metastatic melanoma with multiple lesions in the central nervous system, pneumonia with respiratory compromise and chronic obstructive airway disease with chronic tobacco abuse?" In providing an explanation for this response, Dr. P.M. stated that PTSD exacerbates all diseases due to its system wide effects. He added that PTSD is a very debilitating condition and again referred to the medical references he had provided. 

In May 2013, the VA physician who provided the May 2011 opinion stated that the Veteran had metastatic melanoma with metastasis to the brain stem and he subsequently died from this in addition to respiratory failure and cardiovascular arrest. The VA physician commented that the articles provided by Dr. P.M. suggested that the Veteran's PTSD could have led to the development of cardiovascular disease as well as melanoma leading to his death. The VA physician opined that, "although there is shown to be some link, . . . it is less likely that his PTSD could have played such a major role in the development of metastatic melanoma which led to respiratory failure and cardiovascular arrest." He stated that the veteran's service-connected PTSD was less likely severe enough to lead to the development of metastatic melanoma causing respiratory failure and cardiovascular arrest." The VA physician acknowledged that there did appear to be an association with PTSD leading to suppression of the immune system; however, he opined, "I feel it is not significant enough to cause the development of his melanoma leading to his death." 

It is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). There is conflicting medical evidence regarding the relationship between the Veteran's service-connected PTSD and the cause of his death. 


While not all of the Veteran's VA treatment records had been associated with the claims file at the time a copy was provided to the Veteran's attorney, the claims file included the numerous VA treatment records documenting the severity of the Veteran's PTSD, as well the discharge summary from the Veteran's treatment at the Columbia VAMC in October and November 2005 (prior to his transfer to MUSC), and his terminal discharge summary. Dr. P.M. was therefore adequately aware of the relevant medical history. Dr. P.M. provided an explanation for his opinion, and included supporting medical references. Moreover, as a psychiatrist, Dr. P.M. is expertly qualified in the pertinent area of medicine to provide an opinion. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

The death certificate itself, completed by Dr. G.M., also provides some support for the claim, as PTSD was listed in the chain of events which directly caused the Veteran's death. However, to the extent that the death certificate provides support for the claim, it is of limited probative value, as there is no explanation for this finding. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). Despite numerous attempts to contact Dr. G.M. to obtain an explanation for his opinion that PTSD caused or contributed to the Veteran's death, the RO has been unable to locate this physician, who is no longer employed by VA. 

The November 2006 VA psychologist's opinion appears to provide some support for the claim, to the extent that she opined that it was at least as likely as not that the Veteran's PTSD would have contributed to his declining health in terms of his cardiovascular problems. However, she later revised her opinion in November 2010, and opined that it was less likely than not that the Veteran's PTSD was a contributing factor to his death. 

Weighing against the claim are the VA opinions outlined above. The November 2006 VA physician provided a negative opinion regarding whether the Veteran's PTSD contributed to his death. In providing a rationale for this opinion, he stated that there was no evidence to suggest that the Veteran's PTSD led to the development of his metastatic melanoma. The November 2010 negative opinion from the VA psychologist was based on a finding that the Veteran's cardiovascular problems were the result of another medical condition of the time of his death. The May 2011 negative opinion was based on a finding that the Veteran's cause of death was respiratory failure secondary to metastatic melanoma. In his May 2013 opinion, the VA physician acknowledged that there was shown to be some link between PTSD and cardiovascular disease; however, he opined that it was less likely than not that PTSD could have "played such a major role in the development of metastatic melanoma which led to respiratory failure and cardiovascular arrest." He similarly acknowledged that there did appear to be an association with PTSD leading to suppression of the immune system; however, he opined, "I feel it is not significant enough to cause the development of his melanoma leading to his death." 

While the VA physician provided a negative opinion in May 2013 regarding whether the Veteran's PTSD led to the development of his metastatic melanoma, the question is whether the service-connected PTSD contributed to death, either by contributing materially or substantially; combining to cause death; or aiding or lending assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). 

The evidence is at least evenly balanced regarding the question of whether the Veteran's service-connected PTSD contributed to, as opposed to caused his death. In cases where the evidence is evenly balanced, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 

In reaching this conclusion, the Board has considered that Dr. P.M.'s opinion appears to be based, at least in part, on the relationship between the Veteran's smoking history and his PTSD, as he included for support of his opinion medical articles referencing the relationship between PTSD and smoking. 

For claims received by VA after June 9, 1998 (as in this case), a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the Veteran's use of tobacco products during service. See 38 C.F.R. § 3.300. The VA General Counsel has held, however, that neither 38 U.S.C.A. § 1103(a) nor its implementing regulations at 38 C.F.R. § 3.300 bar a finding of secondary service connection for a disability related to use of tobacco products after service. See VAOPGCPREC 6-2003; 69 Fed. Reg. 25178 (2004). The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability alleged to be secondary to a disability not service connected on the basis of being attributable to the veteran's use of tobacco products during service are: (1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability. VAOGCPREC 6-2003.

In any event, while Dr. P.M. included as support for his opinions medical articles regarding the relationship between PTSD and smoking, he nevertheless provided a positive opinion regarding PTSD being a contributory cause of the Veteran's death, and reported that PTSD, itself, as a condition of chronic stress, weakens the endocrine and immune systems and puts excessive pressure on the heart/cardiovascular system. 

For the reasons discussed above, resolving reasonable doubt in the appellant's favor, service connection for the cause of the Veteran's death is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

ORDER

Service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the award of monetary benefits. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs