Citation Nr: 1339709 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-20 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Appellant and her Son ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. During his service in World War II the Veteran was awarded the Combat Infantryman Badge and was twice awarded the Purple Heart Medal for wounds received. The Veteran died in March 2010; the present Appellant is his surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2012 the Appellant and her son testified in a hearing before the RO's Decision Review Officer (DRO), and in November 2012 they both testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the RO ("Travel Board" hearing). Transcripts of both hearings are of record. During the Travel Board hearing cited above the presiding VLJ granted a motion by the Appellant's representative to advance this appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. The Veteran was service-connected for posttraumatic stress disorder (PTSD), status post-left hip replacement and residuals of a gunshot wound to the right shoulder. 2. The Veteran died on March [redacted], 2010, of sudden cardiac death. Underlying causes of death were cardiac ventricular arrhythmia, hyperlipidemia and atherosclerosis. 3. Competent and uncontroverted medical opinion of record shows that a disorder associated with active service did not cause Veteran's death or contribute substantially or materially to his death. CONCLUSION OF LAW The requirements for service connection for the Veteran's cause of death have not been met. 38 U.S.C.A. §§ 1110, 1112, 1310 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Because the RO's adjudication of a Dependency Indemnity Compensation (DIC) claim hinges first on whether a veteran was service-connected for any condition during his or her lifetime, the notice in such a claim must include (1) a statement of the conditions, if any, for which the 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 condition previously service-connected, and (3) an explanation of the evidence and information needed to substantiate a DIC claim based on a condition not previously service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Review of the file shows the Appellant received notice compliant with Hupp in a letter dated in August 2010, and she had ample opportunity to respond prior to issuance of the December 2010 rating decision on appeal. At any rate, the Appellant has not asserted any prejudice in regard to the content or timing of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran's service treatment records (STRs) are associated with the file, as are treatment records from those medical providers identified by the Appellant as having potentially relevant records. Also, the file has been reviewed by a VA physician who provided a medical opinion relevant to the claim. As explained below, the Board has found the medical opinion to be adequate and sufficient under the criteria set forth in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Appellant has presented testimony in hearings before the RO's DRO and before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ or DRO who chairs a hearing to explain the issues and to suggest the submission of evidence that may have been overlooked. Here, the presiding VLJ and DRO identified the issue to the Appellant and asked specific questions directed at identifying whether the requirements for establishing entitlement to service connection for the cause of the Veteran's death have been met. Additionally, the Appellant volunteered the Veteran's medical history in the context of her claim. The Appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearings focused on the elements necessary to substantiate the claim, and the Appellant provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Appellant is not prejudiced by a decision at this time. The Appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced her in the adjudication of this appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issue on appeal. Applicable Laws and Regulations Service connection for the cause of a veteran's death is warranted if a service-connected disability either caused or contributed substantially or materially to the cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. A service-connected disability is one that was incurred in or aggravated by active service; one that may be presumed to have been incurred or aggravated during such service; or, one that was proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. To establish service connection for the cause of a veteran's death, evidence must show a disability incurred in or aggravated by active service either caused or substantially or materially contributed to the veteran's death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to be a contributing cause, it is not sufficient to show that it casually shared in producing death, but rather there must be a causal connection. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(c)(1). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to an unrelated disability. In the same category would be included service-connected diseases or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful attention as a contributory cause of death, the primary disease being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be presumed. 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 coexisting conditions, but even in such cases there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not be generally reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive and debilitating nature. 38 C.F.R. § 3.312(c)(4). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all 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 the 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis During his lifetime, the Veteran was service-connected for the following disabilities: posttraumatic stress disorder (PTSD), rated as 30 percent disabling; status post-left hip replacement, rated as 30 percent disabling; arthritis of the left knee, rated as 20 percent disabling; and, gunshot wound to the right shoulder, rated as noncompensable. His combined evaluation for compensation was 60 percent. The Veteran died on March [redacted], 2010. The death certificate lists the immediate cause of death as sudden cardiac death. Contributing or underlying causes of death, in order of importance, were cardiac ventricular arrhythmia, hyperlipidemia and atherosclerosis. In her claim, received in May 2010, the Appellant asserted her belief that the Veteran's service connected disability "hastened" his death. During the DRO hearing in May 2012 she testified the Veteran's orthopedic problems, some of which were service-connected, had aggravated his PTSD, which led to his death from a previously-unsuspected heart problem. During her subsequent Travel Board hearing in November 2012 she stated the Veteran had PTSD-related symptoms such as nightmares, and her son testified that the Veteran's PTSD, combined with the stress resultant from the pain caused by his service-connected orthopedic disabilities, was sufficient to cause a cardiac disorder; accordingly, in the son's opinion, the Veteran's service-connected disabilities were a major contributing factor to his death. The Appellant stated she and the Veteran had been married for 62 years, and that she was not aware of the Veteran having any cardiac disorder during the first years of their marriage; she admitted that a physician has stated the Veteran's history of very heavy smoking at a young age may have affected his heart. Turning to the objective medical evidence of record, the Veteran's service treatment record (STR) shows no indication of a cardiac disorder during service, and the Veteran did not claim entitlement to service connection for a cardiac disorder during his lifetime. During a VA history and physical examination in October 2004 the Veteran reported history significant for angina in 1980 and rheumatic fever in childhood, but no current cardiovascular disorder was assessed. During an orthopedic consult with Dr. Chandler in January 2005 the Veteran endorsed a history of coronary artery disease (CAD) with two previous cardiac catheterizations, the most recent of which was 8-10 years previously (i.e., approximately 1995). In sum, there is no medical or lay evidence of record that suggests onset of a cardiac disorder during service or for many years after service. The Veteran had his first-ever VA psychiatric consult in June 2008, during which he endorsed nightmares in which combat and orthopedic surgery were comingled. The clinician, a psychiatrist, diagnosed PTSD and stated that the Veteran's chronic orthopedic pain triggered his PTSD symptoms; the consult is silent in regard to a comorbid cardiac disorder. The Veteran's mental health status was essentially unchanged in November 2008; in January 2009 the attending psychiatrist noted that the Veteran's mood and sleep had improved with medication, although his nightmares continued. In April 2009 and July 2009 the Veteran reported better mood, more sleep and fewer nightmares. In November 2009, the last psychiatric treatment note of record, the Veteran reported improved psychiatric symptoms and also reported that his joint pain was manageable with medication. The file was reviewed by a VA physician in June 2012 under the protocol for examination of the heart. Based on review of the file, the reviewing physician stated an opinion that the cause of death was not likely proximately due to or the result of the Veteran's PTSD. As rationale, the reviewer stated the Veteran had an extensive medical history with multiple medical problems that led to his death at age 85. These problems included arteriosclerotic heart disease (ASHD)/CAD (noting angina that began in 1980 and rheumatic fever as a child); hyper-cholesterolemia; hypertriglyceridemia; cardiac murmur; mild mitral regurgitation; moderate tricuspid regurgitation; pulmonary hypertension; aortic stenosis; mild left ventricular hypertrophy; atherosclerosis; diffuse arthritis; history of multiple surgeries including transurethral resection of the prostate, bilateral hips with prosthesis and shoulder; diffuse osteopenia; compression fracture of T-10; gout; anemia; and, extensive history of smoking (moderately until his 50s, per review of medical notes). The reviewer also listed the causes of death listed on the death certificate and noted that PTSD was not among them. The reviewer stated that severe PTSD may aggravate cardiac disease, but this Veteran did not have severe PTSD per the psychiatric notes of record. The Veteran did not complain of "anxiety" until 2002, at around 77 years of age, and was diagnosed with PTSD in 2008, but he had known cardiac disease since 1980 when he was diagnosed with angina. The Veteran was very elderly (85 years old) and had a long history of smoking, which, when combined with his advanced age and his childhood history of rheumatic fever, led to his valvular heart disease and atherosclerosis, and then ultimately to the cardiac ventricular arrhythmia with sudden cardiac death. The VA reviewing physician was fully informed of the pertinent factual premises (i.e., medical history) of the case, and he provided a fully-articulated opinion supported by a reasoned analysis. The opinion is accordingly probative and may be relied upon by the Board. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The opinion of the VA reviewer is not contradicted by any other medical evidence of record, and is accordingly afforded great probative value. The file contains a May 2012 letter from Dr. Juan Masi, the Veteran's attending physician for many years. Dr. Masi stated the Veteran had died of sudden cardiac arrest and urged VA to grant the Appellant death pension benefits because she is on a fixed income and needs the money. However, Dr. Masi did not suggest in his letter that the Veteran's PTSD or any other service-connected disability had contributed in any way to the cause of death. Thus, Dr. Masi's letter does not contradict the opinion of the VA reviewer. In support of her claim the Appellant submitted an internet article titled "Heart Disease among Vets with PTSD." The author, a psychologist, asserts therein that a recent study had found Vietnam veterans with PTSD are twice as likely to die from heart disease as veterans without PTSD, and that the likelihood of dying from heart disease is directly proportional to the severity of the PTSD symptoms. The author of the underlying study equated PTSD to a history of smoking 2-3 packs of cigarettes per day for more than 20 years, and asserted that PTSD causes the body to release stress hormones that cause inflammation and damage to the arteries and the cardiovascular system. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, treatise evidence alone is usually "too general and inconclusive" to establish a medical nexus. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Appellant in this case has offered no medical opinion asserting that the general findings articulated in the internet article are applicable in the specific case of the Veteran. The only opinion showing a relationship between the Veteran's service and the cause of his death is the lay opinion of the Appellant and her son. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). However, the Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Appellant's lay evidence is offered to show the etiology of the Veteran's heart disorder, which is a complex medical question not within the competence of a layperson, particularly given the risk factors and medical history cited by the VA reviewer. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). As the competent and uncontroverted medical opinion of record shows the Veteran's service-connected PTSD did not cause Veteran's death or contribute substantially or materially to his death, and as there is no competent evidence suggesting that the Veteran's service-connected disabilities other than PTSD caused or materially contributed to cause his death, the Board finds the criteria for service connection for cause of the Veteran's death are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 55-56. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs