Citation Nr: 1553252 Decision Date: 12/22/15 Archive Date: 12/30/15 DOCKET NO. 11-07 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) compensation under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had active service with the United States Marine Corps from November 1956 until November 1958, and with the United States Navy form June 1966 until February 1968, and from August 1970 until July 1973. He died on March [redacted], 2008 and the appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for the cause of the Veteran's death. The appellant subsequently sought to reopen the denied claim, and a new RO decision was issued in June 2009. She submitted a notice of disagreement, which was timely to the initial July 2008 decision. Accordingly, as it is more beneficial to the appellant's claim, the decision on appeal is that of June 2008. FINDINGS OF FACT 1. The immediate cause of the Veteran's death was septic shock, due to or as a result of acute renal failure, with chronic obstructive pulmonary disease (COPD) and cor pulmonale having been a significant condition contributing to his death. 2. The cause of the Veteran's death was not related to service or a service-connected disability. 3. At the time of the Veteran's death, he was service-connected for posttraumatic stress disorder (PTSD), rated 100 percent since November 17, 2004. 4. The Veteran's service-connected disability was not continuously rated totally disabling for 10 years prior to his death, nor was the total disability evaluation in effect from the date of discharge from military service. CONCLUSIONS OF LAW 1. Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5107, 5103A (West 2014); 38 C.F.R. § 3.312 (2015). 2. The criteria for establishing entitlement to DIC under 38 U.S.C.A. § 1318 are not met. 38 U.S.C.A. §§ 1318, 5107, 5103A, 5107 (West 2014); 38 C.F.R. § 3.22 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cause of Death The Veteran died in March 2008; the immediate cause of death listed on his certificate of death was septic shock, due to or as a result of acute renal failure; COPD and cor pulmonale were indicated "significant condition[s] contributing" to his death. At the time of his death, the Veteran's service-connected disabilities were PTSD, a left clavicle fracture with minimal left acromioclavicular separation, and a hemorrhoidectomy. The appellant and her representative have made a set of contentions, suggesting manners in which the Veteran's PTSD contributed to his death. Specifically, that the use of medication to treat PTSD and pain, over the course of many years, precipitated the onset of terminal renal failure; that the use of these medications precipitated the onset of a liver disorder which caused renal failure; that the Veteran's PTSD caused him to excessively drink and smoke, which led either directly to renal failure or to COPD (see March 2008, November 2008, and September 2015 statements). To grant service connection for the cause of the Veteran's death, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to it. A service-connected disability is one which was incurred in or aggravated by active service, one which may be presumed to have been incurred during such service, or one which was proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2015). The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). The service-connected disability will be considered the principal (primary) cause of death when such 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). The service-connected disability will be considered a contributory cause of death when it contributed substantially or materially to death, that it combined to cause death, or that it aided or lent assistance to the production of death. 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 C.F.R. § 3.312(c). The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death. See Lathan v. Brown, 7 Vet. App. 359 (1995). There are primary causes of death, which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. Even in such cases, 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 generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c). The appellant's contention, essentially, is that the causes of the Veteran's death, renal failure and COPD, were secondary to his service-connected PTSD. The appellant has not argued, and the evidence does not otherwise suggest, that either the renal failure or COPD were incurred in service or are otherwise directly related to service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2015). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. See 38 C.F.R. § 3.310(b) (2015). Establishing service connection on a secondary basis requires (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The record reflects a history of mental health diagnoses, including PTSD. The fact that PTSD has been associated with service has been established, and was reflected in the award of service connection. The appellant is certainty capable commenting on the Veteran's behavior over the years that she knew him, and to the extent that such behavior is capable of lay observation, her statements are probative in describing it. Layno v. Brown, 6 Vet. App. 465 (1994). However, in November 2008, for example, she contended that the Veteran's "cause of death was due to his [pulmonary] problems, which was caused because he used to smoke a lot to calm his anxiety, stress, and other symptoms he had because of his PTSD service connected disability." The assertions both that his smoking was a symptom related to service-connected PTSD, and that such smoking was causal in the onset of COPD are conclusion of a complex medical nature, well beyond her lay expertise. In July 2008 the appellant wrote to VA that the Veteran "used to smoke and drink a lot to calm his anxiety due to his PTSD and drink alcohol to forget his flashbacks and memories he had also due to PTSD. This really contributed to his health problems which lead to his death." The appellant's description that the Veteran used to "drink a lot" is slightly in contrast with treatment notes within a year of his death. In September 2007, for example, he told a VA psychiatrist that he drank only an "occasional glass of red wine." Regardless of this discrepancy, the appellant - again - does not possess the necessary medical expertise to assert to that the Veteran's alcohol consumption contributed materially to his death. Of far greater probative value in that regard, is the 2008 death certificate, which was certified by a physician, and not only identifies the Veteran's causes of death (which did not include PTSD or alcohol), but also specifically indicates that tobacco did not contribute to the Veteran's death. The appellant's representative has submitted two articles in support of the appellant's claim. The first, The Side Effects of Common Psychiatric Drugs, indicates that one of many potential side effect of the drugs Remeron (mirtazapine), BuSpar (buspirone), and Serepax (oxazepam), each of which he had been prescribed prior to the Veteran's death, is "liver problems." An article from The Mayo Clinic, titled Acute Kidney Failure goes on to list "liver failure" as one of ten "[d]iseases and conditions that may slow blood flow to the kidneys and lead to kidney failure." The Board has considered the medical literature submitted, but finds that it is of only limited value. The subject of such literature is sufficiently similar to the issue on appeal, however, generic information from a medical journal, treatise, or website is too "general and inconclusive" to establish a medical nexus to a disease or injury on its own. Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). A medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships. Sacks, 12 Vet. App. at 316-17. Here, no such medical opinion has been associated with the record, and as a result the submitted materials carry only minimal probative weight for the purposes of establishing a nexus between the onset of septic shock, acute renal failure, COPD, or cor pulmonale. Furthermore, the broad outlines of these documents are couched and equivocal, further weighing against their value in substantiating the appellant's claim. See Bloom v. West, 12 Vet. App. 185, 186-87 (1999). See also Obert v. Brown, 5 Vet. App. 30, 33 (1993). Finally, even to the limited extent that these articles provide generic information indicating that one possible side effect of some of the Veteran's medication may include effects on the liver, there is no indication in available medical records to suggest that the Veteran was suffering from a liver disorder or other liver dysfunction at the time of his death. The Board is left without substantially probative evidence linking any service-connected disability to the Veteran's death. Rather, the evidence clearly shows that the Veteran died as a result of septic shock due to acute renal failure, with COPD and cor pulmonale as contributory causes. Without any evidence showing one or more of the foregoing being related to service or a service-connected disability, the claim must be denied. While the Board is sympathetic toward the appellant, and grateful for the Veteran's several years of service, it is bound by the applicable laws and regulation. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Dependency and Indemnity Compensation Under 38 U.S.C.A. § 1318 Persuant to 38 U.S.C.A. § 1318(a) (West 2014), where a veteran's death resulted from non-service-connected causes, DIC benefits will be paid to their surviving spouse in the same manner as if the death were service connected (a) if the veteran's death was not the result of his own willful misconduct and (b) if, at the time of death, the Veteran was receiving or was entitled to receive compensation for a service-connected disability rated totally disabling if (1) the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death; (2) the disability was continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or (3) the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b) (West 2014); 38 C.F.R. § 3.22(a) (2015). "Entitled to receive" means that, at the time of death, the veteran had one or more service-connected disabilities rated totally disabling by VA, but was not receiving compensation for reasons specified in the regulations which are not relevant here (such as withholding or waiver of payment), or because the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error (CUE) in a VA decision concerning the issue of service connection, disability evaluation, or effective date. 38 C.F.R. § 3.22(b). Claims under 38 U.S.C.A. § 1318 are adjudicated based on decisions rendered during the veteran's lifetime. 38 C.F.R. § 20.1106 (2015). Thus, the only possible ways for the appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1318 would be: (1) meeting the statutory duration requirements for a total disability rating at the time of death; or (2) showing that such requirements would have been met but for CUE in a decision on a claim filed during the veteran's lifetime. The threshold legal requirement for establishing entitlement to this benefit is that at the time of death, a veteran must have been receiving (or entitled to receive) compensation for service-connected disabilities rated totally disabling for 10 or more years. At the time of the Veteran's death, he was service-connected for PTSD, rated as 100 percent disabling (i.e. totally disabling) effective November 17, 2004, 50 percent disabling effective March 28, 2002, and 30 percent disabling effective September 27, 2000. In addition, he was service-connected for a left clavicle fracture (evaluated as 20 percent disabling from November 17, 2004, prior to which it was rated as 10 percent disabling), and a hemorrhoidectomy (rated as noncompensably disabling from November 26, 1958). Thus, the Veteran had been entitled to receive his 100 percent rating from November 17, 2004 until his death, less than 10 years later, on March [redacted], 2008. He had not been continuously rated totally disabling since discharge from any of his three periods of service in 1958, 1968, or 1973, and he was not a former prisoner of war. There is nothing in the record indicating, nor has the appellant alleged, that the Veteran should have been receiving, or was entitled to receive, compensation at the total rate prior to November 2004, and it has not been alleged that any prior rating decision was clearly and unmistakably erroneous. Cole v. West, 13 Vet. App. 268 (1999). Thus, the threshold legal criteria for benefits under 38 U.S.C.A. § 1318 are not met, and the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In the context of a claim for DIC and cause of death benefits, § 5103(a) 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, 352-53 (2007). A notice letter was sent to the appellant in June 2008 which complied with Hupp save for the lack of a statement indicating that the Veteran had been service-connected for PTSD, left clavicle fracture, and a hemorrhoidectomy. Nonetheless, in its July 2008 initial adjudication of these claims, the RO included such a statement and the claims were readjudicated with the issuance of the June 2009 RO decision. Thus, the Board finds that VA effectively complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA also has a duty to assist an appellant in the development of their claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In cause of death cases, a medical examination or opinion is necessary if there is competent evidence to establish the cause of death, an indication that the cause of death may be associated with service or a service connected disability and insufficient medical evidence to render a decision on the claim. See Daves v. Nicholson, 21 Vet. App. 46, 50-51 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). While 38 U.S.C.A. § 5103A(a) does not always require VA to assist a claimant in obtaining a medical examination or assistance, such assistance is required whenever a medical opinion is necessary to substantiate the claim, and VA is excused from providing such assistance only when no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). Here, an examination of the Veteran's records was not performed, however, the Board finds that one was not needed. Specifically, while the appellant has argued that the Veteran's history of medication may have led to a liver disorder which in turn caused terminal kidney failure, there simply is no competent evidence to support her assertion. Although she has submitted an article discussing the effects of psychiatric drugs on the liver, the Veteran's death was due to kidney failure. Similarly, her argument that the Veteran's PTSD caused him to smoke tobacco, which caused the onset of COPD, is simply without any medical support. In short, there is no indication - other than the appellant's bare lay-assertions - that the cause of death may be associated with a service or a service connected disability. Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. ORDER Service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs