Citation Nr: 1611525 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 09-35 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to November 1956. The Veteran died in October 2007. The Appellant, the Veteran's niece, is seeking reimbursement for funeral and burial expenses paid. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan in which the RO denied the claim for service connection for the cause of the Veteran's death. This matter was before the Board in January 2014. The Board remanded the matter for the RO to obtain additional medical records and a VA medical opinion. The RO obtained the medical treatment records in February 2014 and a VA medical opinion in March 2014. The Board is satisfied that there has been substantial compliance with the remand directives and no further action is required. See Stegall v . West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran was service-connected for bronchiectasis at the time of his death. 2. The Veteran's cause of death was emphysema. 3. The Veteran's service-connected bronchiectasis was not a principal or contributory cause of the Veteran's death. CONCLUSION OF LAW The criteria for service connection for cause of death have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 5103, 5103A, 5106, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312, 3.1704 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. Upon receipt of a complete or substantially complete application, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). In addition, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b). Certain additional notice requirements attach in the context of a claim for Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of death. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). VCAA 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 Board finds that the notice requirements have been satisfied regarding the Appellant's claim. In August 2008, the RO mailed the Appellant a preadjudicatory letter that provided notice to the Appellant regarding what the evidence must show to establish entitlement to DIC benefits and described the type of information and evidence the Appellant needed to provide in support of the claim. The RO also explained to the Appellant what evidence VA was responsible for obtaining or would assist in obtaining. Regarding VA's duty to assist, the United States Court of Appeals for the Federal Circuit has held that the general duty to assist provision, 38 U.S.C.A. § 5103A(a), rather than the provision specifically addressing when medical examinations are required in compensation claims, 38 U.S.C.A. § 5103A(d), is applicable to claims for service connection for the cause of the veteran's death. Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). Under such statutory authority, VA is required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A (a)(1). However, VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim. Wood, 520 F.3d at 1348. The Board finds that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the claims file contains the Veteran's service treatment records and private and VA medical records, including records obtained in compliance with the January 2014 Board remand. There are also two VA medical opinions, from October 2008 and March 2014, to assist in determining the Appellant's claim. Service Connection for Cause of Death - Laws and Regulations The death of a veteran will be considered to have been due to a service-connected disability where the evidence establishes that a disability was either the principal or the contributory cause of death. 38 C.F.R. § 3.312(a). The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran. 38 C.F.R. § 3.312(a). A principal cause of death is one which, 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). A contributory cause of death is one which contributed substantially or materially to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). A contributory cause of death is inherently one not related to the principal cause. 38 C.F.R. § 3.312(c)(1). In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. Id. 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. Id. Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). Determinations as to whether service connection may be granted for a disability that caused or contributed to a veteran's death are based on the same statutory and regulatory provisions that generally govern determinations of service connection. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Before deciding a claim, the Board is required to evaluate all relevant evidence of the record on appeal, including lay and medical evidence. See 38 U.S.C.A. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, a layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In evaluating credibility, the Board may consider, among other things, interest, bias, and internal inconsistency. Caluza v. Brown, 7 Vet. App. 498 (1995). After determining the competency and credibility of the relevant evidence, the Board must then weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Cause of Death - Analysis The Appellant, the Veteran's niece, is seeking the burial allowance for a service-connected death. The Veteran's death certificate, filed by the Appellant, shows that the Veteran's cause of death was emphysema. At the time of his death in October 2007, the Veteran was service-connected for bronchiectasis, rated at 30 percent disabling from May 1958. The Appellant contends that this disability substantially and materially contributed to the Veteran's death. The Veteran's service-treatment records reflect that he was diagnosed with bronchitis and pneumonia during service. In March 1955, a bronchogram found mild cylindrical bronchiectasis and a few saccules of the posterior basal segment right lower lobe. The Veteran was returned to duty in April 1955, and his physical profile noted that he had been diagnosed with bronchiectasis, a chronic lung condition that made him highly susceptible to pneumonia and other respiratory diseases. Following separation from service, the Veteran filed for service connection for bronchiectasis. His claim was granted, and he was rated at 30% disabling effective May 1958. Under current regulations, 30 percent is warranted for bronchiectasis with incapacitating episodes of infection of two to four weeks total duration per year or; daily productive cough with sputum that is at times purulent or blood-tinged, and that requires prolonged (lasting four to six weeks) antibiotics usage more than twice a year. 38 C.F.R. § 4.71a, Diagnostic Code 6601. The Veteran's private and VA medical records span 2000 to 2007, and show a history of drinking alcohol and smoking at least one pack of cigarettes per day for over forty-five years. He quit smoking and drinking in September 2002, but records from December 2004 show that the Veteran had begun smoking regularly again. In August 2000, the Veteran presented to the primary clinic at a VA medical center after many years without treatment. His past medical history noted that he had a history of chronic bronchitis, "presumably related to his history of heavy smoking." A review of systems found that he had experienced shortness of breath for the last two or three years that was primarily associated with activity as well as chest tightness. The examiner's impressions included shortness of breath presumably related to chronic obstructive pulmonary disease (COPD). In July 2002, VA records show that he was positive for COPD. In December 2004, the Veteran presented for treatment two years from his last visit. The past medical history noted hypertension, emphysema, COPD, and service-connected bronchiectasis, and the physician's diagnostic impressions were COPD and weight loss with malnutrition. Private medical records from August 2005 through October 2007 show that the Veteran was being treated primarily for COPD, pulmonary fibrosis, and malnutrition most likely related to a history of alcohol abuse. In June 2006, an annual physical examination shows the Veteran was being treated for COPD - Emphysema, and the examiner noted that a "slow decline in resp function" was anticipated. The Veteran was seen regularly from September 2006 to September 2007 for "end stage COPD main component emphysema" and "some component of pulmonary fibrosis." There was no evidence of treatment for bronchiectasis. The RO obtained a VA medical opinion in October 2008 to assist in determining the Appellant's claim. The physician opined that there was insufficient evidence available to determine a causal relationship between the Veteran's bronchiectasis and emphysema, but that current literature does not support a causal relationship. The Board found that this opinion was inadequate because the physician relied on the wrong facts, namely that there was no mention of the Veteran's smoking history in his medical records. Another VA medical opinion was obtained in March 2014, in compliance with the Board's January 2014 remand. After a review of the Veteran's medical records, the physician concluded that the Veteran's service-connected bronchiectasis was not a principal cause of death, either singly or jointly with some other condition, or a contributory cause of death. She stated that the cause of death was emphysema, and that current medical literature shows tobacco abuse is the primary cause of emphysema. She stated that tobacco abuse is the number one etiology of emphysema, and that the medical records showed the Veteran had a significant history of tobacco abuse. The physician further stated that the medical records did not show treatment for bronchiectasis or note it as a contributing factor in the Veteran's death. Thus, the VA examiner considered all theories of causation in reaching his conclusion that the Veteran's service-connected disability did not cause his death. See, e.g. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Board finds that this opinion is adequate because it was based on accurate facts, and included a review of the Veteran's medical records and a supporting rationale. The Board thus accords this medical opinion great probative weight. The Board finds that the weight of the evidence, lay and medical, to include the May 2014 VA medical opinion, as well as the Veteran's service and post-service medical records, demonstrates that the Veteran's death was not directly or proximately related to his service-connected disability. The Veteran's cause of death was listed as emphysema on his death certificate. The evidence shows that, in the seven years leading to the Veteran's death, the Veteran was treated for chronic bronchitis, emphysema, and COPD, but not bronchiectasis. Medical records from August 2007 specifically termed the Veteran's condition as "end stage COPD," a major component of which was "emphysematous" as well as some pulmonary fibrosis. Bronchiectasis was not mentioned as a primary or contributing factor. Furthermore, the evidence shows that the Veteran had a long history of tobacco abuse, which the VA examiner stated is the primary cause of emphysema. The VA examiner's opinion relied on medical literature, and is supported by the Veteran's medical records that related his COPD to his history of smoking. Thus, the evidence does not show that the Veteran's bronchiectasis caused or contributed toward the Veteran's death. The Board acknowledges the Appellant's argument regarding the alleged relationship between the Veteran's service-connected disability and his death. Specifically, the Appellant contended in the February 2009 Notice of Disagreement that emphysema is associated with bronchitis, which plagued the Veteran for his entire life and was the reason he was discharged from service. The Appellant relies on a Wikipedia article, which states "[e]mphysema is commonly associated with bronchitis and chronic bronchitis. Since it is difficult to delineate 'pure' cases of emphysema or chronic bronchitis, they are generally grouped together as chronic obstructive pulmonary disease (COPD)." Here, the Appellant specifically relates bronchitis to the Veteran's death. The Veteran, however, was not service-connected for bronchitis, which is a separate condition from bronchiectasis. Furthermore, the Board finds the medical evidence and VA examiner's opinion that the Veteran's cause of death was emphysema, related to a history of tobacco abuse, more probative in this regard because it is specific to the Veteran and his medical history. To the extent that the Appellant seeks to etiologically relate the Veteran's service-connected bronchiectasis to his death, the Board finds that the Appellant, as a layperson, does not have the requisite medical knowledge, training, or experience to render a competent medical opinion regarding the Veteran's cause of death. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Although the Appellant is competent to testify as to her observations, whether the Veteran's service-connected disability primarily caused or contributed to his death is a complex medical etiological question involving internal and unseen system processes unobservable by the Appellant. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. The Board finds the medical evidence is more probative in this regard. See Davidson, 581 F.3d at 1316. The Appellant's representative further argued that the Board should consider the Veteran's bouts of pneumonia following service as playing an important role in this case. No evidence, medical or otherwise provided by the Appellant, has related the Veteran's cause of death to pneumonia and, as discussed above, the Appellant has been shown competent to relate the Veteran's conditions to his cause of death. The Veteran's representative, as a lay person, is also not show to have the requisite medical knowledge, training, or experience to render a competent medical opinion regarding the Veteran's cause of death. Instead, the Board finds that the VA examiner's medical opinion and the Veteran's medical records are probative evidence as to the Veteran's cause of death, and the contributing factors. Based on the aforementioned, the Board finds that the weight of the probative and competent evidence does not show that the Veteran's service-connected disability caused or contributed substantially or materially to his death. Accordingly, the preponderance of the evidence is against the Appellant's claim, and service connection for the cause of the Veteran's death must be denied. ORDER Service connection for the Veteran's cause of death is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs