Citation Nr: 1337929 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-08 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from February 1958 through November 1966. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. After issuance of that rating decision, original jurisdiction over this matter was transferred to the RO in Houston, Texas. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the 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 the Veteran's death, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was in effect, as well as service connection for right hip arthritis, status-post total hip replacement; residual muscle injuries from a right thigh gunshot wound with retained bullet; residuals from a fracture of the radius ulna; and surgical scars on the right thigh, buttocks, and arm. 2. The Veteran died on October [redacted], 2005 of hypertensive and arteriosclerotic cardiovascular disease that was due to chronic obstructive pulmonary disorder (COPD). 3. Neither a heart disability nor hypertension was shown during the Veteran's active duty service or for many years thereafter. 4. Neither a service connected disability nor medications taken by the Veteran for treatment of his service-connected disabilities caused or materially contributed to the Veteran's death. CONCLUSION OF LAW The criteria for establishing service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice 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 v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, 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, 352-53 (2007). In this case, a June 2007 letter issued to the appellant provided notice regarding what information and evidence is needed to substantiate the appellant's claim for DIC and accrued benefits, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant to submit medical evidence showing a reasonable probability that the condition that contributed to the Veteran's death was caused by injury or disease that began in service. Also, the letter notified the appellant of the disabilities for which service connection was in effect at the time of the Veteran's death, to include posttraumatic personality disorder and a right knee disability. Thus, VA's duty to notify in this case has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, service personnel records, VA treatment records, reports from prior VA examinations, identified and relevant private treatment records, death certificate, medical examiner's report, and lay statements expressed by the appellant have been associated with the claims file. A claims file review and opinion as to the cause of the Veteran's death was also obtained from the Compensation & Pension (C&P) service in June 2007, and a copy of the report is associated with the record. This opinion, along with the other evidence of record, is fully adequate for the purpose of determining the nature and origin of the causes of the Veteran's death. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection for the Cause of the Veteran's Death 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 competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If cardiovascular diseases, such as hypertension or arteriosclerotic vascular disease, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For such disabilities, a claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). 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 for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). 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 service either caused or contributed substantially or materially to cause death. In order for the service-connected disability to be considered the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. In order for a service-connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather, it must be shown that there was a causal relationship. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Here, the death certificate reflects that the Veteran died on October [redacted], 2005, at the age of 69, due to or as a consequence of hypertensive and arteriosclerotic cardiovascular disease which was in turn due to chronic obstructive pulmonary disorder (COPD). In lieu of an autopsy, an external physical examination of the Veteran was performed by the county medical examiner's office. Laboratory tests performed in conjunction with this examination revealed the presence of acetaminophen in the Veteran's system, but did not reveal the presence of any other drugs. Based upon this external examination, the county medical examiner confirmed the cause of the Veteran's death was confirmed as being hypertensive and arteriosclerotic cardiovascular disease, and, the manner of death was determined as being due to natural causes. At the time of the Veteran's death, the Veteran was receiving compensation at the rate of 100 percent, pursuant to a TDIU that had been granted effective from September 1, 2000. Service connection was also in effect for various disabilities, including: right hip arthritis, status-post total hip replacement, rated as 50 percent disabling; residual muscle injuries from a right thigh gunshot wound with retained bullet, rated as 30 percent disabling; residuals from a fracture of the radius ulna, rated as 20 percent disabling; and surgical scars on the right thigh, buttocks, and arm, collectively rated as non-compensable. As an initial matter, the appellant does not contend and the evidence does not show that the Veteran suffered from COPD or other pulmonary disorder, hypertension, or a heart disorder during service or for many years thereafter. Moreover, there is no competent evidence suggesting that these conditions which caused the Veteran's death arose during service or are otherwise directly or presumptively related to his active duty service. Indeed, service treatment records are entirely negative for any pulmonary, respiratory, or cardiac disorder, and the post-service evidence does not indicate any cardiac events prior to the Veteran's death. Rather, through assertions raised in her claims submissions and various lay statements in the record, the appellant alleges that the Veteran's death was precipitated by an alleged reaction of medications which the Veteran had been taking just prior to his death. In further support of her argument, she alleges in a July 2006 statement that the county medical examiner's findings are unreliable because they were based on an external examination rather than a formal autopsy. In further support of her argument, the appellant has provided pages of internet research concerning the various medications which the Veteran was allegedly taking prior to his death. A listing of prescription medications found at the Veteran's residence was compiled by the Justice of the Peace, and included Etodolac, Amitriptyline, Methocarbamol, Alprazolam, Acetaminophen, Guaifenesin, and Atenolol. Service treatment records show that the Veteran sustained severe right hip injuries in an in-service automobile accident. Post-service VA and private treatment records and VA examination reports dating from 1967 reflect that the Veteran was followed regularly for his right hip problems, which required repeated hip replacement and hip revision surgeries. Nonetheless, these VA and private treatment records do not indicate any subjective complaints, or objective findings of any abnormalities of a cardiovascular, respiratory, or pulmonary nature; nor do they indicate any complications resulting from the medications being used to treat any of his service-connected disabilities. The earliest reference in the record to hypertension is a May 2005 private record from Dr. M.H. reflects that the Veteran was, at that time, prescribed Atenolol. Indeed, multiple blood pressure readings taken over the course of the Veteran's treatment with Dr. M.H. showed borderline hypertensive findings of 160/90 in May 2005, 150/90 in June 2005, 140/80 and 150/90 in July 2005, and 160/90 in September 2005. For reference purposes, the Board observes that Note (1) of 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 defines "hypertension", for VA purposes, as diastolic blood pressure that is predominantly 90 millimeters or greater. "Isolated systolic hypertension" is defined, for VA purposes, as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. In a blood pressure reading, "systolic blood pressure" is represented as the top value, whereas "diastolic blood pressure" is expressed as the bottom value (for example, in a blood pressure reading of 120/80, the value of 120 represents the systolic blood pressure, while the value of 80 reflects the diastolic blood pressure). Despite these elevated blood pressure findings, Dr. M.H. did not offer any opinion relating the Veteran's hypertension to his active duty service. As noted above, a C&P opinion as to the cause of the Veteran's death was obtained in June 2007. In reviewing the Veteran's list of medications, the examiner noted that the prescription of Atenolol would indicate that the Veteran had and was being treated for hypertension. The examiner opined that Etodolac and Methocarbamol indicated that the Veteran was being treated for pain. The examiner noted that the Veteran's prescription of Guaifenesin was indicative of treatment for chest congestion. In reviewing the record, the examiner also noted that the Veteran had a history of smoking, as well as the aforementioned history of hip surgery and hypertension. The examiner also reviewed the county medical examiner's external autopsy report and noted that there was no external reason to fear other than natural causes in relation to the Veteran's death. Importantly, the examiner also noted that there was no recorded documentation that the Veteran was taking any or all of the medications noted on the medication list provided by the Justice of the Peace. The Board points out that this is consistent with the county medical examiner's laboratory findings of only Acetaminophen in the Veteran's system. In addressing the Acetaminophen found in the Veteran's system, the examiner observed that the Tylenol (Acetaminophen) found in the Veteran's blood stream at the time of his death was within appropriate levels. The examiner also noted that there was no indication in the hospital records, emergency records, or EMS transport record that would give any indication to suspect a reaction to a specific medication. In that regard, the Board notes that is also consistent with the appellant's contention that the Veteran appeared to be behaving normally prior to going to bed on the night of his death. In all, the examiner opined that there is no data in the record which documents any reason to suspect anything other than the natural caused death listed on the Veteran's death certificate. In view of the foregoing, the examiner concluded that it is as likely as not that the Veteran died of natural causes and there is no indication of any adverse medication reaction. The Board is sympathetic to the appellant's sincere belief that the Veteran's medications and service-connected disabilities contributed in some way to cause the Veteran's death. Nonetheless, there is no indication in the record that she has received any medical training or has had medical experience sufficient to render a competent medical opinion on the matter. In this regard, the relationship between the Veteran's service-connected disabilities, his medications, and death from hypertensive and arteriosclerotic heart disease is clearly not a matter capable of lay observation and thus requires the informed opinion of an individual with medical expertise. Accordingly, the appellant's lay assertions do not constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). For the reasons set forth above, the Board affords the greatest probative weight to the C&P examiner's June 2007 opinion; as such opinion was provided following a complete and accurate review of the claims file and is based upon a rationale that is consistent with the clinical evidence of record. Accordingly, the Board finds that the preponderance of the evidence in this case is against a finding that the Veteran's medications posttraumatic personality disorder caused or contributed to the Veteran's death from cardiomyopathy and coronary artery disease. Finally, the Board wishes to note allegations raised by the appellant in a June 2009 statement. In that statement, the appellant alleged that the Veteran was in extreme pain due to his service-connected disabilities and that according to her son, the Veteran had confided that he felt like taking his own life. Again, the Board is sympathetic to the appellant's assertions. Nonetheless, the evidence is also devoid of any indication of any psychiatric complaints, findings, treatment, or diagnoses, much less, any opinion relating a psychiatric disorder either to the Veteran's service-connected disabilities or to his active duty service. Moreover, the appellant's suggestion that the Veteran may have voluntarily taken an overdose of his medications is wholly rebutted by her own recollection that the Veteran appeared to be behaving normally on the evening of his death, and by the county medical examiner's laboratory findings of only Acetaminophen in the Veteran's system. Indeed, and as discussed above, the C&P examiner noted in his June 2007 report that amounts of Acetaminophen in the Veteran's system was within appropriate levels. Based upon the foregoing, the claim for service connection for the cause of the Veteran's death is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs