Citation Nr: 1515049 Decision Date: 04/08/15 Archive Date: 04/21/15 DOCKET NO. 09-42 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for cause of the Veteran's death. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to August 1953. The appellant qualifies as the Veteran's surviving spouse. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia that determined new and material evidence was not received to reopen the previously denied claim. An August 2013 Supplemental Statement of the Case (SSOC) reflects that the RO reopened the claim upon receipt of new and material evidence and denied it on the merits. The Board, however, has the jurisdictional responsibility to consider whether it was proper to reopen the claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001). In addition to his paper claims file, the Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with the appeal. The Board has considered the documents in both files while reviewing this appeal. FINDINGS OF FACT 1. A March 2004 rating decision determined new and material evidence was not received to reopen a claim of entitlement to service connection for the cause of the Veteran's death. 2. The appellant appealed the March 2004 rating decision but did not perfect the appeal after the RO issued her a Statement of the Case (SOC), as her Substantive Appeal (VA Form 9) was untimely; hence, the March 2004 rating decision became final. 3. The evidence added to the record since the March 2004 rating decision relates to unestablished elements of the claim and raises a reasonable possibility of substantiating the claim. 4. Service-connected post-gastrectomy syndrome and left varicocele did not cause or contribute substantially or materially to the Veteran's death. CONCLUSIONS OF LAW 1. The March 2004 rating decision that denied a reopening of a claim of entitlement to service connection for entitlement to service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2014). 2. New and material evidence to reopen a claim of entitlement to service connection for the cause of the Veteran's death has been received. The claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). 3. The criteria for payment of DIC benefits on the basis of service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.5, 3.303, 3.312 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been substantially met. Where a claim involves a claim of service connection for the cause of the Veteran's death, 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 -353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). In the present case, prior to issuance of the rating decision appealed, an August 2007 RO letter notified the appellant of the information and evidence needed to reopen a previously denied claim. The letter did not, however, include the Hupp elements, nor did it inform the appellant how disability ratings and effective dates are assigned in the event service connection is granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notwithstanding these deficiencies, the Board finds no prejudice. First, subsequent to Hupp, the Court of the Appeals for the Federal Circuit held that the VCAA does not require case specific notice. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The SOC included the Hupp elements as well as the full duty to assist requirements of the VCAA. See 38 C.F.R. § 3.159(c). Second, the appellant has not asserted that she was misled in any way by the omission. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (prejudice not presumed from notice-type errors). VA has also fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, obtaining medical nexus reviews. See id. The Veteran's service and VA treatment records are in the claims file. Documentation in the claims file indicates that the appellant and the Veteran were not living together at the time of his death. The RO fully informed her of the evidence needed for her to show she met the requirements of a surviving spouse. Further, the Board obtained a medical opinion from a specialists designated by the Veterans Health Administration (VHA). See 38 C.F.R. § 20.902 (2014). The appellant was afforded an opportunity to review and comment on the specialists' opinions. While the appellant may not have received full notice prior to the initial decision, after notice was provided, she was afforded a meaningful opportunity to participate in the adjudication of the claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In sum, there is no indication of additional notice or assistance that would be reasonably likely to assist the Veteran in substantiating the claim. New and Material Evidence If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Applicable Legal Requirements Death benefits are payable to the surviving spouse of a Veteran if the Veteran died from a service-connected disability. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a)(1). 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 active service was the principal or contributory cause of death. 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently not one related to the principal cause. In order to constitute the contributory cause of death, it must be shown that the service-connected disability 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 determining whether the disability that resulted in the death of the Veteran was the result of active service, the laws and regulations generally applicable to compensation for service-connected disability apply. 38 U.S.C.A. § 1310. 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In addition, for veterans with 90 days or more of active service during a war period, chronic diseases, including cardiovascular disease, which includes hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In a DIC claim based on cause of death, the current disability element will always have been met (the current disability being the one that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). Analysis The certificate of the Veteran's death shows he died in August 1973 at the age of 37. The immediate cause was listed as acute circulatory failure due to coronary occlusion with an infarction (heart attack). During his lifetime, the Veteran was service connected for residuals of a gastrectomy that included a dumping syndrome. He was hospitalized for treatment of this disability on several occasions after service. The record does not appear to document heart disease; although during hospitalization in September and October 1972, the heart and aorta were noted to be somewhat small. In October 2009, the appellant's VA physician provided an opinion to the effect that it was very probable that the Veteran's long history of ulcer disease and hemorrhage lead to the heart attack and that service-connected disabilities lead to the Veteran's death. She noted the Veteran's history of chronic abdominal pain (which is documented in the record); and, considered a report that the doctor noted a hemorrhage from the stomach at the time of the Veteran's death (which is not documented at the record). As noted earlier, in October 2014, the Board requested that VHA refer the claims file for review by both a gastroenterologist and a cardiologist. The chief of staff of the VAMC, Phoenix, AZ, designated R.N, M.D., to conduct the review from a gastrointestinal (GI) perspective. Dr. R.N's November 2013 opinion notes that she conducted a comprehensive review of the claims file. She observed that there was evidence that the Veteran had peptic ulcer disease (PUD) that required two surgeries which were separated by several years. Dr. N noted a partial gastrectomy in March 1957 for a perforated ulcer. The Veteran underwent further resection of the stomach in 1961 for GI hemorrhage. After the surgeries, the records note the Veteran's continued complaints of upper GI discomfort, such as pain, nausea, and gaseousness which caused difficulty eating. Dr. N noted that those complaints were attributed to post-gastrectomy residuals. Dr. N noted the Veteran's date of death and listed cause as reflected on the Certificate of Death. She also noted a hospital summary of the Veteran's inpatient treatment from March 21, 1970 to April 10, 1970 treatment of upper GI symptoms of one-week duration. The Veteran could not retain any food which resulted in a weight loss of 10 pounds prior to admission. Dr. N noted that a gastric analysis showed that free hydrochloric acid (HCL) was absent, and the total acid value of the gastric contents was low. Dr. N noted that those findings meant that the Veteran's prior surgery was sufficient to stop acid production that would otherwise result in ulcers. Further, she also noted that an upper GI series revealed no ulcer but did show features of dumping syndrome, for which the Veteran was treated with antacids, milk of magnesia, thiamine, etc. The Veteran's main noted symptoms during the inpatient treatment were nausea and vomiting. The Veteran required inpatient treatment at a VA facility again from August 23, to September 14, 1972 for GI complaints and mental health issues. Dr. N noted that during the admission, an esophagogastroscopy (EGD) showed a normal esophagus, etc., and no evidence of an ulcer. The Veteran was hospitalized again for similar complaints from September 1972 to October 1972. He was treated with antacid medications and a post-gastrectomy diet, as the Veteran continued to have stomach complaints. The Veteran was also hospitalized in November 1972 and December 1972 for GI complaints of pain and nausea without vomiting, primarily after eating. A November 1972 entry noted complaints of nausea, insomnia, anorexia, and diarrhea following food intake, and nervousness. Dr. N noted that the physical examination conducted and the lab tests were normal; and, per the entry noted in the Veteran's chart, the medication provided him relieved his nausea. Also, his weight remained stable despite his complaints of not eating well. No objective evidence of weight loss was noted in the chart. Dr. N also noted the Veteran's recurrent admissions for alcoholism as well as those for GI symptoms. She also noted that a June 1969 X-ray revealed the heart and lungs were within normal limits; the upper GI tract reported a vagotomy and a sub-total gastric resection. No marginal ulcer was seen. Dr. N noted the October 2009 opinion of the appellant's VA physician in detail. In that opinion, the appellant's physician noted that the Veteran had a long history of peptic ulcers which occurred while in active service which required surgery. "In 1961 . . . he had another episode of severe hemorrhage and he underwent further resection of the stomach leaving him about a quarter of the stomach. The physician noted in the chart that the doctor stated at the time of his death that he had an acute hemorrhage from his stomach." Dr. N noted that there was no doubt that the Veteran had a history of PUD, and surgery that led to post-gastrectomy symptoms which were mainly gastric distress, nausea, and gas pains. Dr. N opined that she did not see any documented symptoms of diarrhea that could be attributed to symptoms of post-gastrectomy syndrome which, if present, could account for circulatory collapse. Dr. N noted the Veteran's documented low gastric levels indicated that it was less likely that he had ulcers in the stomach/duodenum after the gastrectomy or bleeding from ulcers. Also, the EGD was negative for ulcers. Hence, Dr. N opined further that it would be conjecture on her part to opine that the Veteran had a hemorrhage or circulatory collapse, as there was no documentation to indicate those conditions. In answer to the Board's specific questions, Dr. N opined that it was not at least as likely as not that the Veteran's post-gastrectomy residuals caused the fatal circulatory collapse. Dr. N noted that to draw that connection, there would have to be evidence of bleeding or severe dehydration which would have led to circulatory collapse before one could conjecture that as a likely cause. Dr. N noted that the only evidence of bleeding was the appellant's self-reported history; and, in Dr. N's opinion it was not likely the cause of the Veteran's death. Dr. N noted that if hemorrhage was the cause of the Veteran's death, it would have been very severe, it would have been apparent, and it should have been listed on the death certificate as the primary cause. Dr. N noted parenthetically that hemorrhaging was apparent at the time of the Veteran's surgeries, which the Board infers to be an example to support her premise that severe hemorrhaging at the time of death would not have been overlooked. Dr. N noted that all of the objective tests of record indicated that the Veteran's ulcers or the residuals of his ulcer surgery did not cause his death. As to whether the Veteran's post-gastrectomy residuals aggravated the circulatory collapse, Dr. N opined that they did not. She noted that, in order for the Veteran's service-connected post-gastrectomy residuals to have aggravated the circulatory collapse, there should have been evidence of fluid loss; but, she did not see any documentation of dehydration/severe diarrhea/hemorrhage which would have caused or aggravated the circulatory collapse. Based on the objective evidence in the claims file, Dr. N opined that it was not likely that the post-gastrectomy residuals contributed to the circulatory collapse. Dr. N also opined that it was not likely that the post-gastrectomy residuals hastened his death, again as there was no evidence or diagnosis of hemorrhage. Dr. N noted that, in light of her opinion based on the evidence that the Veteran's post-gastrectomy residuals did not cause, contribute to, or hasten his death; other causes, such as toxic or cardiac, should be considered. Dr. N deferred comment or opinion on any cardiac-related matter to a cardiologist. The Board asked for a cardiologist to opine whether the Veteran's post-gastrectomy caused or contributed to the circulatory collapse with heart attack. The file was initially referred to S.D, M.D, for the cardiology review. Dr. D noted in his November 2013 opinion that, based on his review of the records, the Veteran had no known cardiovascular disease, either from medical records or by review of the Veteran's ECG. Dr. D opined that, to his knowledge, there is no scientific connection between gastrectomy history and circulatory collapse or heart attack. As for aggravation of the circulatory collapse, Dr. N noted that there was no evidence from the treatment records, "namely the death certificate," that suggested the Veteran's heart attack was aggravated by his history of a gastrectomy. He noted further that the death certificate did not list any contributing conditions, there was no information on the circumstances of the Veteran's death, except that he apparently was dead on arrival; and, an autopsy was not performed. Dr. D opined that there was no evidence that the post-gastrectomy hastened the Veteran's death. The Board noted Dr. D's observation that the Veteran had no known cardiovascular disease, either from medical records or by review of the Veteran's ECG. The Board noted, however, that A June 1966 VA examination report reflects the Veteran was diagnosed as having mild hypertension, and an ECG was read as having shown sinus tachycardia. Finally, the Board noted that Dr. D's opinion indicated that he defined the "treatment records" as the Death Certificate. The Board noted that, in addition to the death certificate were records that contained what are considered treatment records. The Board requested Dr. Dev to review all of the treatment records, and clarify whether they changed any aspect of his opinion. In a May 2014 addendum, Dr. D advised that he did in fact review all of the treatment records; and, while the Veteran did have mild hypertension and sinus tachycardia, those factors did not change his November 2013 opinion. In light of the fact Dr. D did not provide a rationale for his addendum, in October 2014, the Board requested another cardiology review of the claims file by a different specialist. The file was referred to M.S., M.D. In the November 2014 report of his medical review, Dr. S noted the listed cause of the Veteran's death and the fact that an autopsy was not performed for confirmation. Dr. S noted the Veteran's surgical history and the fact that the September 1972 EGD did not reveal a peptic ulcer. Dr. S also noted the evidence of record, to include the appellant's letters that indicated the Veteran probably was an alcoholic; and, that the Veteran's gastritis may possibly have been due to heavy alcohol use. He acknowledged the fact that the Veteran denied any alcohol impact to a social worker when admitted in 1972. Dr. S noted that, in light of the paucity of any cardiovascular workup and an autopsy, he could not clearly find a correlation between the Veteran's gastric issues and presumed diagnosis of coronary disease. Dr. S theorized, however, that since the Veteran apparently had untreated active alcoholism, the Veteran may have had a severe gastric hemorrhage and hypotension precipitated by heavy alcohol use, which may have in turn resulted in coronary hypoperfusion and a possible cardiac dysrhythmia as a terminal event. Dr. S again emphasized that the prospect was theoretical. The Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board may favor the opinion of one competent medical expert over that of another; provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician - neither is it required to automatically accord it substantial weight. See generally Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Courts have repeatedly declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993). When the opinion of the Veteran's VA physician, J.D.C.'s, M.D., is reviewed in light of the appellant's written submissions, it is readily apparent that Dr. C relied extensively on the appellant's reports to her. A close reading of the appellant's submissions indicates that she was not present during the Veteran's final illness; and, had no personal knowledge of the events she was reporting. Dr. C, in turn, did not reference any of the medical tests conducted on the Veteran during his lifetime or the medical history recorded during his admissions. She relied on a history that was inaccurate in significant ways. For instance she reported that the Veteran had a hemorrhage during his final hospitalization. Further, Dr. C did not provide a rationale for her opinion that the Veteran's service-connected post-gastrectomy syndrome probably caused his death; and, there is no indication that Dr. C is either a GI specialist or cardiologist. See Black v. Brown, 10 Vet. App. 279 (1997) (an opinion may be reduced in probative value even where the statement comes from someone with medical training, if the medical issue requires special medical knowledge). Doctors N, D, and S, however, reviewed the claims file and, except for Dr. D, provided a full rationale for their opinions. See Nieves v. Rodriguez, 22 Vet. App. 295 (2008). In light of these factors, the Board finds the opinions of Doctors N and S highly probative and accords them far more weight than Dr. C's opinion. Dr. N opined that it was not probable that the Veteran's post-gastrectomy syndrome caused, contributed to, or hastened the Veteran's death. Dr. S opined that the state of the evidence of the claims file did not provide a probable correlation between the Veteran's gastric issues and presumed diagnosis of coronary disease. As indicated, the Board accords minimal weight to the opinions of Dr. C and Dr. D due to the absence of rationales. Nonetheless, the Board notes that Dr. D in fact noted that he had no knowledge of a scientific connection between a history of a gastrectomy and circulatory collapse or heart attack. The Board infers that Dr. D meant that there was no support for such a connection in the medical literature on the subject. See Monzingo v. Shinseki, 26 Vet. App. 97, 106-07 (2012). In light of all of the above, the Board is constrained to find that the preponderance of the evidence is against the claim. 38 C.F.R. § 3.312. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the appellant's claim, however, the doctrine is not for application. 38 U.S.C.A. § 5107(b). ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for cause of the Veteran's death, and the claim is reopened. The appeal is granted to that extent. Entitlement to service connection for the cause of the Veteran's death is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs