Citation Nr: 1340507 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 06-23 221 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had recognized guerrilla service from October 1944 to November 1945. The appellant seeks benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 RO rating decision that denied service connection for the cause of the Veteran's death. In July 2008, the Board remanded this appeal for further development. In a March 2009 decision, the Board denied the appellant's claim for entitlement to service connection for the cause of the Veteran's death. The appellant then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2010, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded. A May 2010 Court Order granted the motion. In August 2010, the Board remanded this appeal for further development. FINDINGS OF FACT 1. The Veteran died in August 1987. The death certificate lists the immediate cause of death as a chronic infection, stump, ring finger, left, with an underlying cause of death of pulmonary tuberculosis, far advanced. 2. During the Veteran's lifetime, service connection was established for an amputation of the left ring finger, through the proximal phalanx. 3. The Veteran's service-connected amputation of the left ring finger, through the proximal phalanx, contributed to his death. CONCLUSION OF LAW A disability incurred in or aggravated by service (amputation of the left ring finger, through the proximal phalanx) contributed to the Veteran's death. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for the cause of the Veteran's death. As this represents complete grants of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. 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 cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; 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 U.S.C.A. § 1310; 38 C.F.R. § 3.312. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The Veteran had recognized guerilla service from October 1944 to November 1945. 38 U.S.C.A. § 107(a) authorizes the payment of DIC benefits based upon service as a recognized guerilla. The appellant contends that the Veteran's service-connected amputation of the left ring finger, through the proximal phalanx, caused or contributed to his death. She specifically maintains that the stump from the Veteran's amputation of the left ring finger, through the proximal phalanx, became chronically infected and led to his death. She reports that the death certificate lists the immediate cause of death as a chronic infection, stump, ring finger, left, and that the Veteran was hospitalized in June 1987 for a chronic infection of the site of his amputated left ring finger. She also indicates that the Veteran complained of chronic pain and swelling in his left hand due to his service-connected amputation of the left ring finger, through the proximal phalanx, during his lifetime. Post-service treatment records, as well as an April 1954 examination report for VA purposes, show treatment for disorders including a chronic infection of the stump from a left ring finger amputation, and for pulmonary tuberculosis. An April 1954 orthopedic examination for VA purposes noted that the Veteran complained of a deformed left hand, as well as pain in the left hand, especially during the rainy season. It was noted that the Veteran was wounded in May 1944 and that he sustained a gunshot wound of the left ring finger that had to be amputated. The diagnoses were residuals of a gunshot wound of the left ring finger, and an amputation of the left ring finger through the proximal phalanx. A July 1976 medical certificate from the Veteran's Memorial Hospital indicated that the Veteran was admitted on July 22, 1976, and discharged on July 30, 1976. The diagnoses were pulmonary tuberculosis, minimal; ischemic heart disease; and angina pectoris. The Veteran died in August 1987. The death certificate lists the immediate cause of death as a chronic infection, stump, ring finger, left, with an underlying cause of death of pulmonary tuberculosis, far advanced. At the time of his death, the Veteran was service-connected for an amputation of the left ring finger, through the proximal phalanx (rated 10 percent). An October 2008 statement from a VA physician indicated that the Veteran's claims file was reviewed. The physician commented that the Veteran's left ring finger amputation less likely as not materially contributed to his death. The physician reported that the Veteran's amputated stump was evaluated several times and that it was not infected during his 1954 orthopedic exam (for VA purposes). The physician stated that there was no repeat evaluation of the Veteran's left ring finger of record up to the time of his death in 1987. The physician indicated that the appellant mentioned that the Veteran experienced pain on the stump site and that she claimed that such was the cause of his death; but that in the absence of a histopathologic report, CBC, culture of the wound or history of antibiotic intake prior to his death; the conclusion that the cause of death was confined to the left ring finger stump lacks scientific evidence. The physician also reported that there was no mention of sepsis, gangrene, or cellulitis that could strengthen the relationship of the Veteran's chronic finger stump (problems) to his death. It was noted that what was significant was the mention of pulmonary tuberculosis, far advanced, as an underlying cause of death. The physician stated that to have scientific basis for this diagnosis, an x-ray, and a positive history of disease or treatment, was likely in the possession of the attending physician. The physician maintained that there was evidently enough proof of the pulmonary tuberculosis, far advanced, to warrant attention and for it to be included in his death certificate. A June 2010 lay affidavit from V. P., reported that he served with the Veteran in "Company HCO", 2nd Battalion, 2nd Infantry, USAFFE (U.S. Armed Forces, Far East). He reported that the Veteran sustained an amputation of his left ring finger due to a gunshot wound. He stated that after the war, he frequently visited the Veteran and that he always complained of chronic pain in his stump. V. P., indicated that there were several occasions when he accompanied the Veteran to the hospital for continuous medical treatment for his ailment. A June 2010 lay affidavit from the Veteran's daughter reported that she served as a caregiver during his period of illness and that he constantly complained of pain in his (left) ring finger. She stated that she brought the Veteran to the hospital for treatment and that, according to his physician, the chronic pain he suffered was due to infections that led to a complication of the illness that was the root (cause) of his death. A July 2010 medical certificate from C. C. Cipriano, M.D., Chief of Hospital, at the Aparri Medicare Community Hospital indicated that the Veteran was treated at that facility from June 23, 1987 to June 26, 1987, for a chronic infection of an amputated ring finger, through the proximal phalanx. A certification, received in August 2010, from C. C. Cipriano, Chief of Hospital, at the Medicare Community Hospital, indicated that the Veteran was treated at that hospital before his death in 1987 for a case of chronic infection of his amputated left ring finger, through the proximal phalanx. Dr. Cipriano reported that the Veteran then suffered and complained of chronic pain in the stump where his finger was amputated, and that he also suffered constant infections to that site which "aggravated him for early disability." Dr. Cipriano stated that the chronic infection of the Veteran's left finger amputation resulted in and contributed to his suffering from pulmonary tuberculosis and the immediate cause of his death. An August 2010 statement from M. K. Liu, M.D., noted that he had personally reviewed pertinent components of the Veteran's claims file. Dr. Liu stated that given the available documentation, it was impossible to determine, with certainty, the Veteran's principle cause of death. Dr. Liu reported that, however, it was generally accepted that the principal cause of death was listed first on the death certificate. Dr. Liu indicated that a chronic infection of the Veteran's left ring finger was listed fist and that it could be inferred that it was the principal cause of death. Dr. Liu stated that far advanced pulmonary tuberculosis was listed second and that, without any other documentation of the signs and symptoms of the far advanced pulmonary tuberculosis, such as a chest X-ray report near the time of death, or a history of failed pulmonary tuberculosis treatment, it could not be established that the far advanced pulmonary tuberculosis was the principal cause of death. Dr. Liu reported that a March 1954 X-ray report showed that there was thick soft tissue covering of the amputation site and signified that there was no exposed bone at the site. Dr. Liu indicated that, however, skin integrity and quality could not be determined on an X-ray. Dr. Liu stated that the April 1954 orthopedic examination (for VA purposes) did not mention the quality of the amputation site or the quality of the skin. It was noted that a May 1954 RO decision indicated that the amputation site had a good pad, but also failed to address the skin quality. Dr. Lie reported that the skin overlying an amputation site did not necessarily have the same quality as non-traumatized skin and that it was not uncommon for the skin overlying an amputation site to be thinner and have less blood flow, thus making it more susceptible to infection. Dr. Liu indicated that the medical documentation from 1954 only implied an absence of an active infection or an open wound of the amputation site at that particular time. Dr. Liu stated that such had no bearing on the state of the amputation site at the time of the Veteran's death in 1987. It was noted that the term "chronic infection" applied to an infection that persisted after an appropriate course of antibiotics. Dr. Liu reported that in the case of an amputation site, an infection would be considered to be chronic if it was not fully eradicated after ten to fourteen days of treatment. Dr. Liu maintained that the amputation site could have become infected at any time after the orthopedic examination (for VA purposes) in April 1954 and turned into a chronic infection prior to the Veteran's death in 1987. Dr. Liu reported that the appellant stated that the Veteran suffered from pain and swelling of his amputation site. Dr. Liu maintained that both pain and swelling were signs of infection. It was noted that there was documentation showing that the Veteran was hospitalized from June 23, 1987 to June 26, 1987, for a chronic infection of his amputation site and that he was treated with Penicillin. Dr. Liu stated that that given that information, it was reasonable to conclude that the Veteran's amputation site was more susceptible to an infection that became chronic in nature. It was noted that a chronic infection could lead to an overwhelming infection and septicemia, especially in immune-compromised patients. Dr. Liu maintained that if the Veteran had far advanced pulmonary tuberculosis, his immune system would likely have been weakened and that such could be the contributing factor that allowed his chronically infected amputation site to lead to septicemia and cause his death. Dr. Liu commented that it was as likely as not that a chronic infection ultimately caused the Veteran's death in August 1987. A January 2011 certification from Dr. P. Collado, at the Medicare Community Hospital, indicated that the Veteran was treated several times at that hospital before his death in 1987 due to frequent pain and swelling of his amputated left ring finger, through the proximal phalanx. Dr. Collado stated that the Veteran was then diagnosed with a chronic infection of the amputated (left) ring finger stump which she believed lowered his immune system and caused him to acquire other illnesses which contributed to his death. Dr. Collado reported that as far as she could recall as an attending physician at that time, the Veteran was often taken to the hospital for treatment. It was noted that it was the policy of the hospital to dispose of records after every five years and that, therefore, all the records relative to the Veteran's treatment were no longer available. A March 2013 statement from a VA physician noted that the Veteran's claims file was reviewed. The physician reported that she had reviewed the conflicting medical evidence and that there was a paucity of medical documentation that would support the certification submitted stating that there was chronicity of an infection of the Veteran's stump. The physician stated that if the infection was such that it was so severe and debilitating as to cause septicemia leading to, or contributing to, the demise of the Veteran, there would be more clinical evidence of treatment and hospitalization for such condition. The physician indicated that it was worth mentioning that there was specific documentation from the Veteran's Memorial Hospital, dated in July 1976, of a heart condition, ischemic heart disease, and pulmonary tuberculosis. It was noted that there was no mention in that medical report of any problem involving the stump, or any other actual record of treatment for a condition that was supposedly chronic and debilitating. The physician commented that in the absence of such proper documentation or evidence, it was her opinion that it was less likely than not that the service-connected left ring finger amputation resulted in a chronic debilitating infection that would have caused or contributed to the Veteran's demise. In a subsequent July 2013 statement, the same VA physician reported that she had reviewed the conflicting medical evidence. The physician indicated that a review of an August 2010 medical statement from Dr. Liu showed that he stated that he would not be able to determine with certainty the cause of the Veteran's death based on available documents. The physician remarked that, therefore, Dr. Liu's conclusions would be merely speculative. The physician stated that if overwhelming septicemia from an infected stump was thought of as the cause of death, there should be records for other aggressive forms of treatment like an admission at an institution for stronger antibiotics, or even an amputation/surgical intervention such as debridement and drainage. The physician reported that if the immediate cause of death was an overwhelming septicemia, such would have happened earlier and not two months after the first admission for the infection. The Board notes that there are several opinions of record addressing the cause of the Veteran's death, some of which weigh in favor of the claim and some of which weigh against the claim. The October 2008 statement from a VA physician that weighs against the claim is not based on a correct factual premise because the physician stated that there was no repeat evaluation of the Veteran's left ring finger of record from April 1954 up to the time of his death in 1987. However, the Board notes there are several subsequent reports of records from the Medicare Community Hospital that show that the Veteran was treated for a chronic infection of his amputated left ring finger, in June 1987 before his death in August 1987. Additionally, in a March 2013 statement that weighs against the claim, a VA physician indicated that there was a very little medical documentation of chronicity of an infection of the Veteran's stump. However, a January 2011 statement from Dr. Collado stated that the Veteran was diagnosed with a chronic infection of the amputated (left) ring finger stump before his death in 1987. Dr. Collado also reported that as far as she could recall as an attending physician at that time, the Veteran was often taken to the hospital for treatment. She further stated that it was policy of the hospital to dispose of records after every five years and that, therefore, all the records relative to the Veteran's treatment were no longer available. The 2013 VA examiner did not address this positive evidence in formulating his medical opinion that weighs against the Veteran's claim. Accordingly, the Board finds that the March 2013 opinion has low probative value. In a subsequent July 2013 statement, the same physician found that an August 2010 statement from Dr. Liu was merely speculative. The physician remarked that if overwhelming septicemia from an infected stump was the cause of death, there should be records for other aggressive forms of treatment like an admission at an institution for stronger antibiotics, or even an amputation/surgical intervention such as debridement and drainage. The physician indicated that as stated in the (VA) medical opinion in October 2008, there was no scientific evidence supporting the contention that the chronically infected amputation site caused sepsis that was the immediate cause of death. However, the 2013 VA physician did not address certain positive evidence of record, such as the fact that infection of the finger amputation site is listed on the Veteran's death certificate as the primary cause of death and that Dr. Collado stated that it was policy of the hospital to dispose of records after every five years and that, therefore, all the records relative to the Veteran's treatment were no longer available. Accordingly, the Board finds the July 2013 VA examiner's opinion to have low probative value. Conversely, the Board notes that in an August 2010 statement Dr. Liu specifically addressed the fact that the Veteran's death certificate lists the immediate cause of death as a chronic infection, stump, ring finger, left. Dr. Liu also addressed the appellant's reports that the Veteran was treated for pain and swelling of his left hand. Dr. Liu reported that it was generally accepted that the principal cause of death was listed first on the death certificate. Dr. Liu indicated that a chronic infection of the Veteran's left ring finger was listed first and that it could be inferred that it was the principal cause of death. Dr. Liu stated that far advanced pulmonary tuberculosis was listed second and that, without any other documentation of the signs and symptoms of the far advanced pulmonary tuberculosis, such as a chest X-ray report near the time of death, or a history of failed pulmonary tuberculosis treatment, it could not be established that the far advanced pulmonary tuberculosis was the principal cause of death. Dr. Liu further reported that the appellant stated that the Veteran suffered from pain and swelling of his amputation site, that both pain and swelling were signs of infection, and that there was documentation showing that the Veteran was hospitalized from June 23, 1987 to June 26, 1987, for a chronic infection of his amputation site. Dr. Liu maintained that if the Veteran had far advanced pulmonary tuberculosis, his immune system would likely have been weakened and that such could be the contributing factor that allowed his chronically infected amputation site to lead to septicemia and cause his death. The Board also notes that the opinions provided by Dr. Liu are similar to an opinion provided by Dr. Cipriano, received in August 2010, and a January 2011 opinion from Dr. Collado, albeit without a review of the Veteran's claims file respectively, that a chronic infection of the amputated left ring finger contributed to his death. The Board notes that as the opinion from Dr. Liu is more consistent with the evidence of record, the Board finds that it is very probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). After resolving any benefit of the doubt in favor of the Veteran, the Board finds that the evidence of record is at least in equipoise with respect to the question of whether the Veteran's service-connected finger disability caused his death. Accordingly, service connection is warranted for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs