Citation Nr: 1541920 Decision Date: 09/28/15 Archive Date: 10/05/15 DOCKET NO. 09-18 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Appellant and her daughter ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from December 1952 to December 1954. His military decorations include the Combat Infantryman Badge and the Purple Heart Medal. The Veteran died in May 2008. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied entitlement to service connection for the cause of the Veteran's death. The case was remanded in February 2012 and again in August 2014 for further development. The appellant and her daughter testified at a videoconference hearing in October 2011 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. The appellant submitted a waiver of her right to have the RO review newly submitted evidence and allowing the Board to proceed with an appeal. FINDINGS OF FACT 1. The Veteran died in May 2008. A VA donor note indicated that the cause of death was cardiopulmonary arrest. 2. At the time of the Veteran's death, he was service connected for posttraumatic stress disorder (PTSD), hearing loss, tinnitus, and residuals of a shell fragment wound. 3. The preponderance of the evidence of record, to include competent medical evidence and lay evidence, reflects that the Veteran's cardiopulmonary arrest was not incurred or aggravated as a result of active service, and that it was less likely than not that the Veteran's service-connected conditions caused or substantially or materially contributed to, the Veteran's death or caused or aggravated the May 2008 cardiopulmonary arrest. 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. §§ 1110, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The case was remanded twice by the Board. In February 2012, the case was remanded in order to supply the appellant with proper notice of the VA's duty to assist; provide her an opportunity to supplement the record with additional medical evidence; seek additional medical evidence from the Brooklyn VA Medical Center, the Brick VA Medical Center, and a VA Medical Center in Florida where the Veteran may have had outstanding records; request information regarding the Veteran's possible worker's compensation claim, and obtain a VA medical opinion regarding the cause of the Veteran's death. The case was remanded again in August 2014 in order to obtain a more detailed medical opinion. In response to the Board's remand directives, the RO sent a letter dated in March 2012, which satisfied the duty to notify provisions with regard to the appellant's claim. That letter also supplied the appellant with a VA Form 21-4142, and gave her the opportunity to supplement the record, both with additional medical or lay evidence and with evidence regarding a possible worker's compensation claim. The Veteran's available service treatment records, VA medical treatment records, service personnel records, and indicated private medical records relating to the appellant's claim for service connection for cause of death have been obtained, including all those listed in the Board's remand directives, with one exception. The Veteran's medical records from the Brooklyn VA Medical Center from 1995 to 1996 could not be obtained by the RO. The RO informed the appellant of such in a July 2012 letter and gave the appellant the opportunity to supplement the record. The appellant responded that there may be some outstanding records at a VA Medical Center in Oakland Park, Florida, and the RO requested and received additional records from that location. A VA opinion adequate for adjudication purposes was provided in connection with the appellant's claim in September 2014. The opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history and lay assertions of the Veteran and the appellant, and because it describes his cause of death in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The opinion also makes note of outside research the appellant provided, and discusses its pertinence to the appellant's claim, as directed by the August 2014 Board remand. It is noted that an additional VA opinion that was requested as the 2012 opinion on file was deemed inadequate. The Board is satisfied that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The appellant and her daughter testified at a hearing in October 2011. The hearing focused on the elements necessary to substantiate a claim for service connection for the Veteran's death and, through her testimony, the appellant demonstrated that she had actual knowledge that she needed to show the elements of service connection for the Veteran's death. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Further, the appellant had ample opportunity to submit evidence and argument to substantiate the claim. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U.S. 396, 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). Further, the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. II. Service Connection Service connection may be established for the cause of a veteran's death when a service-connected disability "was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2015); see 38 U.S.C.A. § 1310; see also 38 U.S.C.A. §§ 1110 and 1112 (setting forth criteria for establishing service connection). A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto." 38 C.F.R. § 3.312(b) (2015). For a service-connected disability to constitute a contributory cause of death, it must be shown to have contributed substantially and materially to the Veteran's death; combined to cause death; aided or lent assistance to the production of death; or resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of other disease or injury causing death, as opposed to merely sharing in the production of death. 38 C.F.R. § 3.312 (2015). Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. At the time of the Veteran's death, he was service connected for bilateral hearing loss, PTSD, residuals of a shell fragment wound, and tinnitus. The appellant contends that the Veteran's death was principally or contributorily caused by PTSD. A VA donor note lists the Veteran's cause of death as a cardiopulmonary arrest. There is no evidence that the appellant is challenging that diagnosis. During his lifetime, the Veteran was not service connected for any cardiac or cardiopulmonary conditions, and he never pursued service connection claims for any of the aforementioned conditions. The Veteran was service connected at 30 percent for PTSD. The Veteran was treated for coronary artery disease and hypertension as far back as August 1997. He had a cardiac catheterization performed in November 1996, and once spent the night overnight in the hospital in January 2000 due to an irregular heartbeat. A September 2014 VA opinion found that the Veteran's cardiopulmonary arrest was not incurred or aggravated as a result of active service, and also that it was less likely than not that the Veteran's service-connected conditions caused or substantially or materially contributed to, the Veteran's death or caused or aggravated the May 2008 cardiopulmonary arrest. The examiner concluded that, based on a review of the current relevant scientific literature, the preponderance of the currently established medical and scientific evidence does not support that in this case, the Veteran's PTSD caused his cardiac conditions that led to his death. In reaching this conclusion, the examiner considered articles submitted by the appellant to support her claim that PTSD could cause cardiac conditions. The examiner noted that there were isolated reports that PTSD and stress may increase the risk of coronary artery disease, but that it is not currently an established risk factor. She also found that none of the conditions contributing to the Veteran's death-coronary artery disease, severe COPD, and diabetes mellitus-were related to the Veteran's military service or to his other service-connected disabilities. She concluded that "all of the [service-connected] conditions listed above including medications taken to treat these disabilities or treatment for these conditions could not cause, aggravate or substantially and materially contribute to the Veteran's cardiopulmonary arrest and death." The Board gives significant weight to the conclusions of the VA examiner, because she reviewed the entire record, and carefully considered the record, the submissions by the appellant, and current scientific and medical literature in crafting her medical opinion. The appellant submitted a number of articles that indicated a potential link between PTSD and coronary heart disease. These articles submitted by the appellant are useful, but less probative than other evidence of record as not one of them applies the specific facts to this specific case. Sacks v. West, 11 Vet. App. 314, 317 (1998). At the appellant's hearing, she testified that the Veteran sought treatment from Nurse Practitioner A.B., and that A.B., N.P. believed the Veteran's heart condition and PTSD were related. Even assuming that the appellant is a reliable historian and accurately asserts that such an opinion was provided, because it is not of record, the Board cannot assess the probative value of such a medical opinion. Specifically, the Board is unable to determine the factual basis or rationale supporting the reported opinion. The Board obtained records from A.B., N.P., and there was no evidence in her medical records of a link between the two conditions. The appellant's report that the Veteran's physician provided a favorable opinion carries little probative weight and is not sufficiently persuasive to outweigh the findings of the September 2014 VA examiner, who reviewed the record, examined the Veteran, and provided a complete rationale for his findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant also furthered an argument that the medication the Veteran was on for his PTSD, Paxil, may have caused or aggravated the Veteran's condition. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this case, the appellant lacks the medical expertise and knowledge necessary to offer evidence regarding how the interactions of the Veteran's medication may have affected his heart conditions. The Board gives more weight to the VA examiner's conclusion that the Veteran's medications could not have caused or substantially or materially contributed to the Veteran's death. Based on a preponderance of the evidence of record, the Veteran's PTSD and other service-connected conditions are less likely than not to have caused or materially contributed to the Veteran's death. Additionally, the Veteran's cause of death, cardiopulmonary arrest, is less likely than not caused or aggravated by the Veteran's service. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs