Citation Nr: 1753070	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO. 16-63 425	)	DATE
Advanced on the Docket	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to Dependency and Indemnity Compensation (DIC) based on service connection for the cause of death of a veteran.


REPRESENTATIVE

Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel




INTRODUCTION

The appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from January 1949 to June 1952. The Veteran died in October 2013. 

This appeal comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision of the VA Pension Management Center located at the RO in St. Paul, Minnesota.

In August 2017, the Board reopened and remanded this claim for additional evidentiary development. The claim has since been returned to the Board for further appellate action. The Board finds that the RO has substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The principal cause of the Veteran's death was sepsis due to urinary tract infection; diabetes mellitus was a significant condition contributing to death; a service-connected disability was neither the principal nor a contributory cause of death.

2. The cause of the Veteran's death is not related to service and is not related by causation or permanent worsening beyond natural progress to a service-connected disability. 



CONCLUSION OF LAW

The criteria for DIC based on the cause of death of a veteran have not been met. 38 U.S.C.A. §§ 1110, 1131, 1310, 1312, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.5, 3.102, 3.159, 3.303, 3.310, 3.312 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA satisfied its duty to notify the appellant pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) and neither the appellant nor her representative have alleged otherwise.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017).  

Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including the Veteran's service treatment records, post-service treatment records, and VA examination reports.  In addition, a pertinent medical opinion was obtained. 

Dependency and Indemnity Compensation 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.

Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). 

The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 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, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a).

The service-connected disability will be considered as 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).

A contributory cause of death is inherently one not related to the principal cause. 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. 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)(1).

Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2).

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. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3).

There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether 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)(4).

The Board issued a denial of this claim in May 2006. That decision includes a thorough discussion of the evidence and is incorporated by reference. To summarize the evidence of record at that time, the Veteran was hospitalized at the Temple VA Medical Center in July 2003 with diagnoses of acute myocardial infarction, chronic renal failure, uncontrolled hypertension, hypertensive nephrosclerosis, respiratory failure, laryngeal spasm, and anemia. He was transferred to the Dallas VA Medical Center and placed on dialysis. He was discharged in September 2003. In October 2003, the Veteran was readmitted to the Temple VA Medical Center with fever and confusion. He was transferred to Scott and White Hospital with end-stage renal disease secondary to hypertensive nephrosclerosis. On nephrology consultation, the impressions included questionable sepsis and end-stage renal disease. The physician noted that potential sources of infection included the catheter for dialysis, decubitus ulcers, and the possibility of a urinary tract infection. The discharge summary indicates that the Veteran's hospital course had been complicated by cardiopulmonary arrest. The Veteran suffered a substantially large hypoxic brain injury. His family decided to withdraw care and continue comfort measures. The Veteran subsequently died. The death certificate lists the cause of death as sepsis due to urinary tract infection. Diabetes mellitus is listed as a significant condition contributing to death but not resulting in the underlying cause of death.

The appellant previously asserted that the Veteran's service-connected gunshot wounds caused nerve damage and blood poisoning, which caused problems with his kidneys and heart. A VA opinion in February 2005 was that it was less likely than not that any of the Veteran's service-connected conditions were of any material or substantial contribution to his death. The opinion found no medical evidence in the record of a link, or any reasonable presumption of a link, between the gunshot injuries, duodenal ulcer, dysthymia, or the remote malaria and the multiple severe medical diseases experienced by the Veteran and were responsible for his death. In a May 2005 addendum, the VA physician concluded that the Veteran's diabetes was not a factor in the development of end-stage renal disease in the veteran.

In the May 2006 decision, the Board concluded that a service-connected disability did not play a material role in the Veteran's death; render him less able to withstand the effects of his fatal underlying disease or diseases; or hasten his death.

In December 2015, the appellant filed an application to reopen the claim. In August 2017, the Board found that new and material evidence had been received to reopen the claim. This finding was based on receipt of assertions that the Veteran had a chronic kidney problem since service until the day of his death. In connection with her December 2016 substantive appeal, the appellant submitted several articles, including one that identified a link between renal inflammatory disease, such as renal abscess, and comorbid illnesses, like malaria. See Intrarenal Abscess: When to Suspect. The appellant indicated that the medical evidence of record does not contain an adequate opinion addressing the relationship between the Veteran's service-connected malaria, its treatment, and its effects on his body.

On remand in August of this year, a VA physician medical opinion was obtained. The August 2017 opinion finds that the Veteran's documented May 1968 diagnosis of intra-renal and/or pyelonephritis is less likely as not incurred in or otherwise related to service, and is less as likely as not proximately due to or aggravated by any of his service-connected disabilities, including malaria. The rationale provided was that there is no support in the medical evidence for a renal condition or complications while in service or at the time of separation. It was acknowledged that abdominal gunshot wounds could also injure the kidney, but the physician noted that clinical and surgical notes at the time of treatment (1950 and 1951) do not identify any kidney damage or complications. It was also acknowledged that severe malaria could produce acute renal failure, however a review of the medical records found no diagnosis of any renal complications. There was no medical evidence for the Veteran being evaluated or treated for any renal conditions after separation up to May 1968. The physician noted that pyelonephritis and renal abscess are acute and subacute infections of the kidney. Because of the amount of time that passed, 15 years from separation to diagnosis of pyelonephritis and renal abscess, it was opined that there can be no direct causal or aggravating connection to in-service duty. The appellant's statements and the article (Intrarenal Abscess: When to Suspect) were reviewed by the physician, who noted that the article was a report of 3 cases of patients with flank pain and fever that turned out to have renal abscesses. None of those cases had malaria. According to the physician, the purpose of the article was to educate readers to think of and look for renal abscesses in patients with flank pain and fever as treatment would be different for patients who have renal abscesses. In the discussion, patients with malaria were mentioned as those who might have renal abscesses. The article does not claim that patients with malaria, either with or without renal complications, can become ill with renal abscesses 15 years after infection. According to the physician, the most common form of renal complication from malaria is acute renal failure which requires aggressive treatment and is not progressive after been treated. Acute renal failure in falciparum [one species of malaria] is less than 1 percent, and is usually seen by the end of the first week in 50-75 percent of cases. 

After a review of all of the evidence, the Board finds that a preponderance of the evidence is against any relationship between the cause of the Veteran's death and his service or service-connected disabilities. The Board finds the explanation of the August 2017 VA medical opinion to be persuasive evidence against any such relationship. There is no medical opinion that purports to relate the sepsis due to urinary tract infection that caused the Veteran's death, or the diabetes mellitus which was a significant condition contributing to death, to the Veteran's service or to a service-connected disability. 

With regard to medical treatise evidence, the United States Court of Appeals for Veterans Claims (Veterans Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin, 11 Vet. App. 509. In this case, however, the medical treatise evidence submitted by the appellant is not accompanied by the medical opinion of a medical professional. Additionally, as interpreted by the August 2017 physician, it fails to demonstrate with any degree of certainty a relationship between the Veteran's service-connected disability or an in-service injury or disease and his death. For these reasons, the Board must find that the medical text evidence does not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks, 11 Vet. App. at 317; see Libertine v. Brown, 9 Vet. App. 521, 523 (1996).

The Board has considered the appellant's lay statements in support of her claim. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). 

The Board finds that relating a urinary or urinary or kidney disorder to a remote event in service, or to a service-connected disability, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). Such an opinion requires specialized medical knowledge and training and is not an event capable of lay observation. 

There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and the appellant is sincere in her belief that the Veteran's death was related to his service. While the Board understands the appellant's contentions, in the final analysis, a competent, well-reasoned medical opinion is against her assertions. Simply put, the weight of the competent evidence does not substantiate her contention that the Veteran's death is related to the Veteran's service or to a service-connected disability.

In sum, the Board finds that, the principal cause of the Veteran's death was sepsis due to urinary tract infection; diabetes mellitus was a significant condition contributing to death; a service-connected disability was neither the principal nor a contributory cause of death; and, the Veteran's death is not related to service, and is not related by causation or permanent worsening beyond natural progress to a service-connected disability. In light of these findings, the Board concludes that DIC based on service connection for the cause of death of a veteran is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

DIC based on service connection for the cause of death of a veteran is denied.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs