Citation Nr: 1600614 Decision Date: 01/07/16 Archive Date: 01/21/16 DOCKET NO. 04-13 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966. He died in December 1998, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a June 2009 decision, the Board denied entitlement to service connection for the cause of the Veteran's death. The appellant subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In a December 2009 Order, the Court granted the motion, vacated the Board's June 2009 decision, and remanded this case to the Board for readjudication. This claim was again before the Board in April 2010 and April 2014, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran died on December [redacted], 1998. 2. The immediate cause of death, as listed on the death certificate, was sepsis, and the underlying causes were liver failure, cancer of the pharynx, and pneumonia. 3. Service-connected for diabetes mellitus was granted in an August 2008 rating decision with an effective date of December 1996 and an evaluation of 20 percent. There were not any other service-connected disabilities. 4. Sepsis, liver failure, cancer of the pharynx, and pneumonia are not shown to be causally related to service or proximately due to or the result of a service-connected disease or injury. 5. The preponderance of the evidence shows that a disability of service origin, to include the Veteran's service-connected diabetes mellitus, did not cause or hasten his death, or contribute substantially or materially to result in his death. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2014); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Certain additional notice requirements attach in the context of a claim for Dependency Indemnity and Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). Generally, section 5103(a) notice for a DIC case 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. The content of the section 5103(a) notice letter will depend upon the information provided in the claimant's application. By a letter dated in May 2010, the appellant was notified of the evidence necessary to substantiate her claim. She was told what information she needed to provide, and what information and evidence that VA would attempt to obtain, and was provided with notice pursuant to Hupp. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records and private treatment records have been obtained. A VA medical opinion was obtained in March 2015, and findings from this report are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Service Connection for Cause of Death 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 cause or a contributory cause of death. See 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2014); 38 C.F.R. §§ 3.303, 3.310, 3.312 (2015). 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 or be etiologically related. Id. 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; see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307 (2015). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, certain enumerated diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The record reflects that the Veteran served in Vietnam during the Vietnam era, and therefore he is presumed to have been exposed to herbicides. Service connection is already in effect for type II diabetes mellitus, and service connection is not available on a presumptive basis due to herbicide exposure for sepsis, liver failure, cancer of the pharynx, and pneumonia, which the record shows caused the Veteran's death, as discussed below. See id. The Veteran's death certificate shows that he died on December 6, 1998, and that the immediate cause of death was sepsis, which began ten hours prior to death. The underlying causes were liver failure, cancer of the pharynx, and pneumonia. In August 2008, service connection was granted for diabetes mellitus with an effective date of December 10, 1996 and an evaluation of 20 percent. Since the Veteran was not service connected for sepsis, liver failure, cancer of the pharynx, and pneumonia during his lifetime, the evidence would need to show that the Veteran should have been service-connected during his lifetime for the appellant to prevail in the claim on the basis of these illnesses. The appellant has also claimed service connection for the cause of death on the basis of the service-connected diabetes contributing to the cause of death. The service treatment records do not show any complaints, treatment or diagnoses related to sepsis, liver failure, cancer of the pharynx, or pneumonia. In April 1996, Dr. S. Saha, a surgical oncologist, wrote that a biopsy showed that the Veteran had stage IV squamous cell carcinoma arising from the left base of the tongue. It was noted that the Veteran had been a heavy smoker for over 30 years. The subsequent treatment records do not include any opinions regarding whether the squamous cell carcinoma was related to service or whether it was caused or aggravated by diabetes mellitus. Treatment records show glucose readings of 251 mg/dl in July 1996, 184 mg/dl in November 1996, 131 mg/dl in March 1997, 128 mg/dl in December 1997, 141 mg/dl in May 1998, 239 mg/dl in November 1998, and 245 mg/dl in December 1998. The Veteran testified at an August 1997 Board hearing regarding a claim for service connection for squamous cell carcinoma that he started smoking during boot camp and smoked one and a half packs a day until 1996. He further testified that the treating providers insinuated that the cancer was caused by smoking. In January 2002, Dr. Levi Guerrero, one of the Veteran's treating physicians, wrote that the Veteran died from sepsis, pneumonia, and liver failure. The Veteran was diagnosed with diabetes in 1978, and May 1998 treatment records show that he was no longer on medication for it. The Veteran underwent surgery, chemotherapy, and radiation for cancer of the tongue. He also suffered from chronic alcoholism with a history of gastrointestinal bleeding and bypass shunt of the liver. In October 2003 Dr. Guerrero wrote that upon further review of the Veteran's hospital charts, blood sugar was high at the time of death, and it was noted that the Veteran was known to have been diabetic since 1978. It was therefore just as likely as not that the diabetic condition contributed to the cause of death. A VA examiner wrote in June 2006 that available records from before the Veteran's death show that on December 5, 1998, blood sugar was 245 mg., and the Veteran was treated with insulin. There was no documentation of diabetes or its management in the admission notes from that day and no indication that it was subsequently managed at treatment. The examiner opined that it was not at least as likely as not that diabetes contributed to the Veteran's death. In March 2007, Dr. Craig N. Bash, a private physician, reviewed the record and opined that diabetes "absolutely and significantly" contributed to the Veteran's death. It was noted that abnormal blood and urine sugar levels, such as the Veteran had, cause exacerbations in sepsis and pneumonia. Diabetes is associated with a relative immune-compromised state, which interferes with the body's ability to mount an immune response. The Veteran's immune system was compromised due to diabetes, which caused sepsis and death. Dr. Bash also felt that medical studies show that it is more likely than not that pharyngeal tumors are inducted by Agent Orange. Therefore, it was more likely than not that Agent Orange caused the Veteran's pharyngeal cancer because the medical records do not support a more likely etiology, and the literature supports the opinion. In a January 2009 addendum, the June 2006 VA examiner wrote that there was no documentation of diabetes or its management in the late 1998 treatment records and that only one random high glucose reading was noted. Secondary infections such as pneumonia and sepsis are well-known complications in patients with liver failure and carcinoma of the pharynx, with or without the co-morbidity of diabetes mellitus. The examiner opined that the Veteran's diabetes mellitus less likely as not contributed, aided or lent assistance to the production of the Veteran's death or hastened his death. In April 2011, a VA examiner reviewed the record and opined that sepsis, liver failure, cancer of the pharynx, and pneumonia were not caused by or a result of diabetes mellitus. It was noted that the Veteran was diagnosed with diabetes mellitus due to alcoholism in 1978. The glucose levels of 200-300 with insulin treatment indicates that the pancreas and liver were not working properly. The examiner also reviewed and discussed glucose levels from subsequent treatment. In regards to the November 1998 reading, it was noted that it is well documented in credible medical literature that tube feeding causes a rise in glucose levels. The Veteran also had open areas on his hands and infection, which cause a rise in glucose levels. This is why when diabetics have infections they require additional medications until the infection is resolved. The examiner noted in regards to the December 1998 elevated glucose level that the Veteran had multi-system failure and continued use of a feeding tube, and that significant illness causes glucose levels to rise. The Veteran was not prescribed medication for diabetes at that time, which indicates good glucose control prior to admission. The elevated glucose at the time of death did not contribute to or cause death. Furthermore, diabetes did not contribute to or cause death since from 1996, the Veteran was not on medication for diabetes, which indicates it was well controlled. The examiner noted that in the October 2003 opinion, Dr. Guerrero did not consider other causes of elevated glucose that the Veteran had, which included liver failure, alcoholism, hypothyroidism, tube feeding, and infection. In regards to Dr. Bash's March 2007 opinion, the VA examiner noted that the glucose results the opinion was based on were from 1978 treatment. The examiner further noted that neither private opinion noted other factors that contributed to the Veteran's death, such as alcohol abuse, general deconditioning, prior history of pneumonia, liver failure, extravasation of the hands due to chemotherapy, and cancer of the tongue and pharynx. In regards to the cause of death, the examiner noted that sepsis is a massive infection that is multi-factorial in nature. The Veteran's risk factors were liver failure, deconditioning, cancer, tracheotomy, and open skin lesions. The examiner felt that the occurrence of sepsis within ten hours of death meant that it was not caused by diabetes. In regards to liver failure, there is extensive documentation in the record that it was due to alcohol use. The medical literature supports that alcohol use and abuse results in lever failure due to hepatomegaly and destruction of the tissues within the liver. In regards to cancer of the pharynx, the leading cause was smoking. The Veteran had a previous history of pneumonia, which placed him at greater risk for developing it in the future. The other risk factor for pneumonia that the Veteran had was a tracheotomy, which increased the odds of developing pneumonia by 60 percent. In May 2013, another VA examiner reviewed the record and opined that the July 1996, March 1997, December 1997, May 1998, November 1998 and December 1998 glucose readings were not indicative of out of control diabetes. The examiner opined that diabetes did not contribute substantially or materially to the Veteran's death and did not combine to cause death or aid or lend assistance to the production of death. The rationale was the review of the claims file, including the opinions, and medical literature. In March 2015, a VA examiner reviewed the record and opined that diabetes mellitus did not contribute substantially to or materially to the Veteran's death, combine to cause death, or aid or lend assistance to the production of his death. The opinion was based on a review of the record, including the October 2003 and March 2007 private opinions, the June 2006, January 2009, April 2011 and May 2013 VA examiner opinions, and the July 1996, March 1997, December 1997, May 1998, November 1998 and December 1998 glucose readings. There was no medical nexus establishing causality between the cause of death and diabetes mellitus. Risk factors for the development of sepsis within ten hours of death included liver failure, deconditioning, cancer, tracheotomy, and open skin lesions. Medical records indicate that the Veteran had a history of liver failure due to alcohol abuse. Tobacco abuse is the leading cause of cancer of the pharynx. The record also shows that the Veteran previously had pneumonia, which is a risk factor for subsequently developing it. The Veteran had a tracheotomy, which also placed him at increased risk for the development of pneumonia. The Board finds that service connection for the cause of the Veteran's death cannot be granted. Limited probative value is given to the opinions from Dr. Guerrero and Dr. Bash because they did not consider risk factors for the cause of death other than diabetes. As discussed by the April 2011 and March 2015 VA examiners, other risk factors for the causes of death included liver failure, deconditioning, cancer, tracheotomy, open skin lesions, alcohol abuse, tobacco abuse, smoking, and previously having pneumonia. The opinions from Dr. Guerrero and Dr. Bash also do not include discussion of the glucose readings from July 1996 to December 1998. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); see also Stefl, 21 Vet. App. at 124. At the same time, limited probative value is given to the June 2006, January 2009, and April 2011 VA examiners' opinions regarding diabetes because the December 1998 glucose reading was considered without any discussion of the other readings of record beginning in July 1996. See id. Likewise, the May 2013 opinion has limitations because there were high glucose readings excluded from the rationale. See id. However, the discussion by the April 2011 examiner regarding other risk factors is of probative value because it was based on a thorough review of the record. See id. The March 2015 opinion that diabetes mellitus did not contribute substantially to or materially to the Veteran's death, combine to cause death, or aid or lend assistance to the production of his death, is given great evidentiary weight because it is based on a thorough review of the record, including the glucose readings from July 1996 through December 1998, and other risk factors. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The March 2015 reflects the reviewer's conclusion there was no causal connection between the service connected diabetes and the Veteran's death. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson, 7 Vet. App. at 39. To the extent that the appellant is claiming that the causes of the Veteran's death are due to the use of tobacco products during service, for claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to a veteran's use of tobacco products during service. See 38 U.S.C.A. § 110 (2014); 38 C.F.R. § 3.300 (2015). The appellant's contentions that the cause of the Veteran's death was related to his military service have been considered. The matter at hand involves complex medical assessments that requires medical expertise. The record does not show that the appellant has received the requisite formal medical training and accreditation necessary to make medical diagnoses or present opinions regarding complex medical issues. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The preponderance of the competent and probative evidence is against a grant of service connection for the cause of the Veteran's death. ORDER Service connection for the cause of the Veteran's death is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs