Citation Nr: 1340459 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-47 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to July 1970. He died in December 2007. The appellant is advancing her appeal as the Veteran's widow. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appellant testified at a local hearing before a Decision Review Officer (DRO) in January 2010 and at a video conference hearing held before the undersigned Veterans Law Judge in July 2012. A copy of each transcript is of record. In April 2013, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the appellant's appeal has been obtained. 2. The Veteran died in December 2007. The death certificate indicates his cause of death was brain herniation due to (or as a consequence of) stroke. 3. At the time of the Veteran's death, service connection was established for diabetes mellitus, type II, at 20 percent, effective May 31, 1995; coronary artery disease at 60 percent, effective June 1, 2002; diabetic neuropathy of the bilateral upper extremities both at 20 percent, effective January 9, 2004; diabetic neuropathy of the bilateral lower extremities both at 20 percent, effective January 9, 2004; and erectile dysfunction at 0 percent (noncompensable), effective January 9, 2004. 4. The Veteran did not sustain a brain or cerebrovascular disease (stroke) injury or disease in service. 5. Symptoms of a brain disorder, to include brain hemorrhage, accompanied with the stroke were not chronic in service, continuous after separation from service, or manifest to a compensable degree within one year of separation from service. 6. The brain herniation due to (or as a consequence of) stroke that caused the Veteran's death is not related to service or to the service-connected disabilities. 7. A cerebrovascular disease (stroke) is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). 8. None of the Veteran's service-connected disabilities were, singly or jointly with some other condition, the immediate or underlying cause of the Veteran's death, were etiologically related thereto, contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.22, 3.102, 3.307, 3.309, 3.310, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103(a), 5103A(a)(1), 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. 2009) (unpublished) (content of the notice letter for Dependency and Indemnity Compensation (DIC) benefits will depend upon the information provided in the claimant's application). The duty to notify has been satisfied by a March 2008 letter. Regarding the duty to assist, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, October 2010 and May 2013 VA medical opinions, January 2010 DRO hearing transcript, July 2012 Board hearing transcript, and statements from the appellant. There is no indication that additional records exist or, if they did, that they would provide a basis to grant this claim. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) during the July 2012 Board video conference hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appellant has been represented by a veterans' service organization for years, and was assisted at her Board hearing by a representative from that organization. She was asked questions about the Veteran's medical history and asserted her contentions for why service connection for the cause of the Veteran's death is warranted. Neither the appellant nor her representative have asserted the hearing was defective in any manner or that she has been prejudiced in any way by the conduct of that hearing. The Board also notes that 38 U.S.C.A. § 5103A(d), concerning obtaining VA medical examination or medical opinion, is limited to claims for "disability compensation," thus does not pertain to a DIC claim. See DeLarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Nevertheless, in a DIC case, VA must, as part of the duty to assist, "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C.A. § 5103A(a)(1); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008). Pursuant to the Board's April 2013 remand instructions, the RO also arranged for the VA Disability Benefits Questionnaire (DBQ) medical opinion in May 2013. The medical opinion reflects the physician considered the evidence of record and the Veteran's medical history, and explained the rationale for the opinion offered. Hence, the Board concludes that the May 2013 medical opinion was adequate and substantially complied with the April 2013 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The RO also readjudicated the claim on appeal, to include a review of the additional VA outpatient treatment records associated with the file on the "Virtual VA" system in a May 2013 supplemental statement of the case (SSOC). The Board finds no further assistance to the appellant with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Pertinent Laws & Regulations Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection can also be established through application of statutory presumptions, including for chronic diseases, such as brain hemorrhage, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to establish service connection for the cause of the Veteran's death, the evidence must show that a service-connected disability was either the principal or a 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, singly or jointly with some other condition, the immediate or underlying cause of death or be etiologically related thereto. 38 C.F.R. § 3.312(b). In order for the service-connected disability to be a contributory cause of 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. 38 C.F.R. § 3.312(c)(1). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology, that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The appellant contends that service connection is warranted for the cause of the Veteran's death for the following reasons: (1) his post-service strokes were caused by the service-connected diabetes mellitus, type II, and the insulin (asserted at the January 2010 DRO hearing); (2) his heart attack in 2002 led him to have a number of strokes (asserted at the July 2012 Board hearing); and (3) his diabetes, stroke, and heart conditions were due to him being in Vietnam and exposure to Agent Orange that was sprayed while he was in country (asserted in the December 2010 substantive appeal, via a VA Form 9). The Veteran's death certificate indicates his cause of death was brain herniation due to (or as a consequence of) stroke. At the time of the Veteran's death, service connection was established for diabetes mellitus, type II, at 20 percent, effective May 31, 1995; coronary artery disease at 60 percent, effective June 1, 2002; diabetic neuropathy of the bilateral upper extremities both at 20 percent, effective January 9, 2004; diabetic neuropathy of the bilateral lower extremities both at 20 percent, effective January 9, 2004; and erectile dysfunction at 0 percent (noncompensable), effective January 9, 2004. First, the evidence demonstrates the Veteran did not sustain a brain or cerebrovascular disease (stroke) injury or disease in service, and symptoms of a brain disorder, to include brain hemorrhage, accompanied with the stroke were not chronic in service, continuous after separation from service, or manifest to a compensable degree within one year of separation from service. Service treatment records do not reveal any complaints, treatment, or diagnosis for symptoms of brain or a cerebrovascular disease (stroke) injury or disease. At the time of separation from service in 1970, the June 1970 separation examination report documented clinical evaluation of the neurologic system was normal and no pertinent abnormalities were noted. Post-service treatment records, as reported by Dr. T. W. in an October 2010 VA medical opinion, document the Veteran's fatal stroke was accompanied with hemorrhagic progression with subsequent brain herniation resulting in the Veteran's death. The Board finds the gap between discharge from honorable active service in 1970 and initial findings of brain hemorrhagic progression accompanied with the stroke in the post-service treatment records as probative evidence against the claim. Additionally, the Veteran's death certificate documents the approximate interval of time between onset of the stroke and death itself was days. As such, the Board finds that the Veteran's symptoms of a brain disorder, to include brain hemorrhage, were not continuous after separation from service or manifest to a compensable degree within one year of separation from service. Next, the evidence shows the brain herniation due to (or as a consequence of) stroke is not related to service or the service-connected disabilities. In the October 2010 VA medical opinion, Dr. T. W. noted review of the record revealed the Veteran was admitted for private treatment on December 4, 2007 with acute stroke and died approximately one week later from brain herniation secondary to his stroke. Private studies from the facility showed a large right middle cerebral artery stroke which had hemorrhagic progression with subsequent brain herniation resulting in the Veteran's death. The Veteran had significant vascular disease including both cerebral vascular disease (2001 Transient Ischemic Attack (TIA) and studies revealed very mild carotid disease) and cardiovascular disease (myocardial infarction in 1991 and 2002, underwent a percutaneous transluminal coronary angioplasty (PTCA) in 1991 and 2000 with stent, and February 2002 coronary artery bypass grafting with subsequent determination of a stroke). He further noted the claims file indicated that findings from a 2003 VA neurology examination documented the Veteran's stroke in 2002 was an operative event and likely embolic in origin. Pursuant to evaluation for a possible hypercoagulability problem as a cause of his recurrent strokes because of his multiple vascular events at a relatively young age and strong family history of vascular events, November 2006 studies showed the Veteran had elevated antiphospholipid IgM. Repeated testing specifically noted elevated anticardiolipin IgM, and the neurologist opined the Veteran's early onset cardiovascular and cerebrovascular disease was likely related to the anticardiolipin antibody IgM elevation. Since such testing, the Veteran was treated by anticoagulated with Coumadin until 2007, then placed on Aggrenox and aspirin. He remained status quo until the final stroke in December 2007. Review of the record also showed the Veteran had other medical conditions that are risk factors for stroke, to include diabetes dating back to around 1989-1990, hypertension, cigarette smoking, hypercholesterolemia, and male gender. Dr. T. W. opined "the most likely and most significant contributor . . . would be the Veteran's elevated anticardiolipin IgM antibody which placed him at risk for embolic vascular events. His cardiac surgery in 2002 was felt to be an embolic phenomenon related to his surgery, and therefore not secondary to his diabetes. The final stroke that he had in December 2007 was not temporally or otherwise related to the specific cardiac surgery performed for coronary artery disease in 2002, and therefore this surgery could not have had a cause or effect on his stroke which caused his death in 2007. The Veteran's coronary artery disease therefore did not cause his final stroke." Pursuant to the April 2013 Board remand instructions for an addendum medical opinion subsequent to the association of additional VA outpatient treatment records with the record, Dr. D. B. provided the May 2013 VA DBQ medical opinion. After review of the physical claims file and electronic medical records, he summarized the Veteran's medical history regarding the cardiovascular and cerebrovascular diseases and stroke in 2002. He also specifically opined "it is less likely than not that Veteran's cause of death (stroke with brain herniation) was as a direct result of his military service or secondary to his service connected medical conditions." It was explained that: [A]lthough stroke has risk factors of diabetes and coronary artery disease, the medical records are clear in indicating that it was more likely antiphospholipid cardiolipin IgM antibody syndrome. This is a condition that is not listed as one associated with his service . . . [b]ut it is related to early onset cerebrovascular disease. The highest risk factor overall for stroke is prior stroke or TIA which Veteran had and this was considered to be due to hypercoagulable state (initial one was that of perioperative time). The Board finds that the October 2010 and May 2013 VA medical opinions are adequate for adjudication purposes. Specifically, the physicians reviewed the claims file and the Veteran's computerized patient record system (CPRS) records. There is no indication that the VA physicians were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Moreover, the physicians have the requisite medical expertise to render medical opinions regarding the cause of the Veteran's death and had sufficient facts and data on which to base the conclusions. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA physicians' opinions to be of great probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000). The Board acknowledges the appellant is competent to report experiences as it comes through the use of one's senses. See Layno, 6 Vet. App. at 470. However, she is not competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of the Veteran's cause of death. See Robinson v. Shinseki, 557 F3.d 1355 (Fed. Cir. 2009). The question of causation, in this case, involve complex medical issues that the appellant is not competent to address (such as whether the Veteran's brain herniation due to (or as a consequence of) stroke is related to service or to the service-connected disabilities). See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Pursuant to the appellant's contention that the Veteran's post-service stroke conditions were due to herbicide (Agent Orange) exposure, cerebrovascular disease (stroke) is not among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). Therefore, service connection for the cause of the Veteran's death on a presumptive basis as due to herbicide exposure is not available in this case. In light of the findings discussed above and review of the pertinent medical and lay evidence of record, the probative evidence of record demonstrates no relationship between the brain herniation due to (or as a consequence of) stroke and active service or to the service-connected disabilities. Therefore, the Board finds that the criteria to establish service connection for brain herniation due to (or as a consequence of) stroke have not been met. Particularly, the October 2010 and May 2013 VA medical opinions provide highly probative evidence against this claim, indicating the Veteran's cause of death due to an anticardiolipin antibody with no credible connection with service or a service-connected disability, outweighing the appellant's claim. With regard to the question of whether a service-connected disability was the principal or contributory cause of death, the evidence of record, particularly the October 2010 and May 2013 VA medical opinions discussed above, shows that none of the Veteran's service-connected disabilities (1) was, singly or jointly with some other condition, the immediate or underlying cause of the Veteran's death or was etiologically related thereto or (2) contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312. In this case, as noted above, the Veteran's death certificate does not include a service-connected disability as one of the immediate or underlying causes of his death. Moreover, the lay and medical evidence of record does not suggest that any service-connected disability contributed substantially or materially to cause his death. For these reasons and bases discussed above, the Board finds that the evidence is against the claim for service connection for the cause of the Veteran's death. As a result, this claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs